01
Jul
22
Articles, Personal Injury, Public Sector & Human Rights
The private law liability of public authorities: the curious case of Transport Arendonk BVBA v Chief Constable of Essex Police

Some of you may remember the 2020 High Court decision in Transport Arendonk v Chief Constable of Essex Police [2020] EWHC 212 (QB), landing as it did at a time when there was a flurry of strike out cases exploring the boundary of the concept of causing harm versus failing to confer a benefit in the context of the duty of care, following the recent ‘trifecta’ of Supreme Court authorities: Michael v Chief Constable of South Wales Police [2015] AC 1732; Robinson v Chief Constable of West Yorkshire Police [2018] AC 736; and CN v Poole Borough Council [2019] 2 WLR 1478[1].  It was a curious case involving the theft of a consignment of sportswear from a lorry left in a layby when its driver was lawfully arrested.  It was suggested by the haulage company claimant that the defendant police force owed it a duty of care to protect the contents of the lorry from the risk of theft.  An application to strike out the claim for want of a duty of care was rejected both at first instance and on appeal.  Elisabeth Laing J decided that the claim was “not clearly a case which can be analysed as a case in which the appellant failed to act or to provide a service” and that “the concept of assumption of responsibility is somewhat elastic”.  Since that the decision there have been further cases testing these legal issues, not least the Court of Appeal decision of Tindall v Thames Valley Police [2022] RTR 16[2].  Almost seven years after the theft that gave rise to the claim the trial was heard over six days by HHJ Freeland QC, with judgment handed down on 25 May 2022.  This note sets out the arguments and the court’s conclusions.  Laura Johnson QC and Henk Soede acted for the successful defendant.

Key facts

On 7 September 2015, C loaded a valuable consignment of branded sportswear in Belgium. The consignment was due to be transported to Sheffield. The lorry driver (“ML”) was a Romanian national and employee of C. On 8 September 2015, ML arrived in England with the lorry. At about 9:25pm, ML was involved in a minor collision in a small village in Essex. ML did not stop the lorry and members of the public pursued it in their vehicle. At about 10pm the pursuers found the lorry parked in a layby on the A120, in an area of farmland. The police were called.

At approximately 10:43pm, D’s officers arrived.  They were concerned ML was intoxicated, a view that was not reassured by the discovery of an open bottle of fortified wine was found in ML’s cab.  ML was breathalysed and discovered to be almost three times over the limit. He was arrested and handcuffed for ‘officer safety and to prevent escape’. ML’s keys were confiscated and he was placed in the police car. Prior to leaving the layby with ML, D’s officer had concluded that the lorry was secure and could be left overnight. ML was taken to the station. There was no dispute that ML had been lawfully arrested. There were a number of factual disputes: (i) whether ML had told the officers what was in the lorry; (ii) whether D’s officers were otherwise aware that the contents of the lorry were valuable; and (iii) whether ML had asked the officers if he could telephone his employer to inform them of his arrest. ML did not participate in the proceedings and the evidence relied on consisted of a written statement given by ML to his insurers.

At the station, a recording was made of the events in the custody suite.  ML behaved aggressively towards the police officers. At approximately 23:54, ML was told his rights, including the right to have someone informed of his arrest. ML stated that he wanted to call his “boss” but that he did not have the telephone number and that he needed to return to the lorry to retrieve it.  D’s custody officer informed ML that his colleagues would go to the lorry and get that number. ML then complained of heart pains. The on-call GP advised that ML should be taken to hospital. The two arresting officers took ML to hospital and remained there with him until approximately 5:37am on 9 September 2015, after which their shift ended.

At 7.53am on 9 September 2015, D’s officers (not the arresting officers) attended the layby and found that the lorry curtains had been slashed and that the consignment had been stolen.

Pleaded claim

C brought proceedings against D in common law negligence to recover the value of the stolen consignment and the cost of repairing the vehicle damage caused by the thieves. It was alleged that D had assumed responsibility for the lorry and/or otherwise incurred a duty of care when D’s officers (i) arrested ML; (ii) confiscated ML’s keys to the lorry; (iii) prevented ML from contacting his employers at the layby; (iv) knew that the consignment was valuable; and (v) left the lorry unattended at the layby in circumstances where D’s officers knew there was a real risk of theft. The central allegations of breach of duty included (but were not limited to) a failure to allow ML to contact his employers at the layby; a failure to take steps to secure the lorry upon ML’s arrest (e.g., moving the lorry to a secure location or placing a patrol car on site following ML’s arrest); and a failure by D’s officers to contact ML’s employers themselves. D denied that it owed a duty of care at all; alternatively, denied breach of duty; in the further alternative, denied that the alleged breaches caused C’s loss. The focus of this note is on the issues arising in relation to the alleged duty of care.

Duty of care

Point 1: direct infliction of harm

On the existence of a duty of care, C’s primary case was that D’s alleged failures were not ‘pure omissions’ and that the case was akin to Robinson in that it involved a positive infliction of reasonably foreseeable damage. The critical point relied on by C was that D’s officers had involved themselves in the control of the lorry. It was argued that served to distinguish the case from those which concerned a failure to confer a benefit. D’s officers, it was submitted, had embarked upon a course of conduct which gave rise to the risk in the same way as the defendants in Robinson.

D argued that, to the contrary, D’s officers had done nothing with the lorry at all.  It was left where ML had parked it, locked, in the layby.  The cause of the loss was the criminal act of unknown third parties, not any act of the officers.  The decision in Robinson was therefore distinguishable: in that case the complaint was “not that the police officers failed to protect her against the risk of being injured, but that their actions resulted in her being injured” (Lord Reed at [73]). C’s complaint, by contrast, was an example of the first of those two categories: an alleged failure to take such steps as were necessary to prevent the thieves from stealing the consignment. Whilst C sought to latch onto various ancillary positive acts (e.g., ML’s arrest), D emphasized that the court must be astute to keep sight of the true cause of the harm complained of – namely, the actions of the thieves. As Stacey J put it in HXA v Surrey County Council [2021] EWHC 2974 at [63]:

The attempt to carve out positive acts from a case which is principally about a failure to confer a benefit is to fail to identify correctly the underlying complaint, as per the Court of Appeal in Kalma:

“merely because something can be presented as an act does not mean that what are, on a proper analysis, omissions can be, as the judge put it, “brought wholesale within the parameters of a duty of care”” [121]

Or to put it colloquially, to fail to see the wood for the trees.”

HHJ Freeland QC agreed with D’s submissions and found that the context for what occurred was far removed from that which underpinned cases such as Robinson. The complaints were appropriately characterised as a failure to confer a benefit on C – the direct cause of the harm was the actions of the unknown third parties and not the positive acts of the police. Accordingly, this was a case requiring consideration of whether the qualified exceptions to the rule against omissions liability applied.

Point 2: the rule against omissions liability[3] and the exceptions

C’s alternative case was that, even if D’s failures were correctly categorised as omissions, the case fell within the recognised gateways to liability set out by Tofaris & Steele in ‘Negligence Liability for Omissions and the Police [2016] CLJ 128 (approved by Lord Reed in Robinson at [34]), namely:

“In the tort of negligence a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed responsibility to protect B from that danger (ii) A has done something which prevents another from protecting B from that danger (iii) A has a special level of control over that source of danger or (iv) A’s status creates an obligation to protect B from that danger”.

In broad terms, C placed reliance on three main bases for a duty of care: (1) that D’s officers had assumed responsibility for the lorry; (2) that D’s officers had prevented another (namely, C’s agents) from protecting the lorry from the risk of theft; and (3) that D’s officers had ‘made matters worse’ (with reliance placed on cases involving failures to “keep property secure”: e.g., Rushbond Plc v JS Design Partnership LLP [2021] EWCA Civ 1889).

Category (i): Assumption of responsibility

In terms of a possible assumption of responsibility, the starting point for the test is Lord Morris in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465[4]:

“If someone possessed of a special skill undertakes quite irrespective of contract to apply that skill for the assistance of another person who relies upon such a skill a duty of care will arise.”

Put simply, an assumption of responsibility involves a personal undertaking or service provided to the claimant by the defendant and reliance upon that service by the claimant. The leading authority on the circumstances in which the exercise of statutory powers can amount to an assumption of responsibility is CN Poole. In HXA, Stacey J at [26] helpfully summarised Lord Reed’s judgment as to the potential routes to an assumption of responsibility:

“In Poole Lord Reed identified two possible routes by which it can be inferred that a public authority has assumed responsibility [80-83]. Firstly, where the nature of the statutory functions relied on by the claimant in themselves entail that the council assumed or undertook a responsibility towards a claimant to perform those functions with reasonable skill and care, such as by taking a child into its care and exercising parental responsibility as in Barrett v Enfield London Borough Council [2001] 2 AC 550.  There is no dispute that local authorities “may owe common law duties to children in the exercise of their child protection duties” (D v East Berkshire Community Health NHS Trust [2005] 2 AC 373).  Secondly “from the manner in which the public authority has behaved towards the claimant in a particular case”.”

C placed reliance on the manner in which D’s officers had behaved both at the layby and at the police station. It was contended that D had assumed responsibility for the consignment by arresting ML; allegedly preventing ML from contacting his employer; and leaving the lorry unattended overnight in circumstances where its officers knew the consignment was valuable and knew of the risk of theft. In turn, D contended that those factual assertions should be rejected. The arresting officers’ evidence was that ML never asked to contact his employer whilst at the layby and that there was no mention of the value of the load at any stage. As above, HHJ Freeland QC agreed.

Even if C’s factual assertions were right, however, D submitted further that there was in any event no basis for an assumption of responsibility. D did not at any stage offer or provide a service to C on which C relied. In fact, D had no contact with C at all. In relation to the functions performed by D’s officers, none of those services entailed undertaking a responsibility to C to perform them with care and skill. D’s officers were concerned with upholding the law, investigating a potential criminal offence perpetrated by ML and providing ML with his statutory rights. The exercise of those powers had nothing to do with C. What’s more, the mere fact that the police had the power to remove the lorry from the layby was not in itself sufficient to find an assumption of responsibility: see, e.g., Stuart-Smith LJ in Tindall at [71]-[72].

HHJ Freeland QC again agreed with D’s submissions. D did not provide a service to C that C expected to receive and did in fact rely upon. Similarly, no assumption of responsibility could be inferred from the actions of D’s officers. D’s officers lawfully arrested ML and the and were simply performing their statutory powers. The exercise of those powers in the context of ML’s arrest was not in itself sufficient to give rise to an assumption of responsibility in relation to C’s cargo.

Category (ii): Preventing another from protecting C from danger

C’s case on this exception was that D’s officers did not permit ML to contact his employers at the layby and that, in doing so, they prevented C’s agents from becoming aware of the situation and thereafter sending agents to protect the cargo.

D noted that this exception was cited in the most recent version of Tofaris & Steele’s article (cited with approval in Robinson at [34]) but not in the version cited in Michael by Lord Kerr at [176]. The source of the amendment was not clear.  Save possibly for the case of Kent v Griffiths [2001] QB 36 no obvious examples of this exception can be found in the case law.  In any event D submitted that, insofar as this is a true exception in law to the rule against omissions liability, it was a narrow one and encompasses the more general exception relating to “making things worse” (see, e.g., Capital & Counties v Hampshire County Council [1997] QB 1004[5] and, by contrast, OLL v Secretary of State for the Home Department [1997] 3 All ER 897).

HHJ Freeland QC rejected the factual basis of C’s case and found that, on the balance of probabilities, ML did not ask D’s officers if he could contact his employers at the layby. In fact, the evidence indicated that ML wished to avoid notifying his employer of his predicament – he could have called them in the 45 minutes preceding D’s officers’ arrival at the layby but did not. As for what occurred at the police station, D’s officers acted reasonably in not returning immediately to the lorry. ML’s heart pains quite properly took precedence. Accordingly, C failed to establish that a duty arose due to D preventing C’s agents from protecting the lorry from the risk of theft.

Category (iii): making matters worse

The central authority underlying this exception is Capital & Counties. In Tindall, Stuart-Smith LJ analysed Capital & Counties as a case which established that emergency services owed no duty of care to answer a call for help or to do so with reasonable care unless their actions created the danger causing injury: see [29]-[31] and [35]. That principle formed the basis of the duty in case such as Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242 (where the police negligently fired a gas cannister into the claimant’s shop, thus setting it on fire) and Alcock v Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 (where the police created the danger to the Hillsborough crowd by incompetent crowd control): see [31] in Tindall.

D submitted that there was no basis for a finding that its officers had made matters worse. In relation to the lorry, D’s officers did not intervene in anyway with respect to its parked location or security. Insofar as C sought to argue that D made matters worse by arresting ML, that could not in itself found the basis of a duty of care. D’s officers had no choice but to arrest ML given there was cause to believe that he had committed a criminal offence. The consequences of ML’s arrest were ML’s fault and not the fault of the police. D relied upon the cases of Alexandrou v Oxford [1993] 4 All ER 328, Ancell v McDermott [1993] RTR 235 and Tindall, each of which involved more egregious failures but resulted in a finding that no duty was owed.

C, in turn, contended that the ‘making matters worse’ exception was flexible and was capable of a wide interpretation and could include cases involving ‘creation of a danger’. The basis for the allegation, again, was that D’s officers created the danger by arresting ML, preventing ML from contacting his employers and leaving a lorry containing a valuable load unattended overnight in circumstances where the officers were aware of the risk of theft. There was heavy reliance on the decision in Rushbond. In Rushbond, an architect was permitted to enter a property and was told how to do so securely. The architect entered the property but left the front door open when he was inside. Whilst the architect was inside, an intruder entered. The architect left the property and locked the front door behind him. Later that day a fire was started in the property, which caused significant damage, and the claimant’s case was that the fire was started by the intruder. The defendant initially struck out the claim on the basis that the case was an omissions case. The claimant appealed, with success. At [31], Coulson LJ set out the two stands of authority concerned with the duty to take reasonable steps to keep property secure:

“Within that strand of cases, there is a significant difference of approach between those situations, on the one hand, where the defendant is carrying out some activity, in the course of which he has failed to keep the claimant’s property secure and the claimant has suffered loss as a result and, on the other, those cases where the defendant has done nothing whatsoever with its own property, which has then been misused in some way by third parties, causing loss to the owners of adjoining property. Liability has been readily found in the first type of case, but not in the second.

C submitted that the instant claim was an example of the ‘first category’ referred to by Coulson LJ. For D’s part, it was submitted that the officers were not in a comparable position to the architect: they had taken no positive step whatsoever in relation to the lorry. All they did was attend the layby, arrest ML and take ML to the station for investigation. They did not interfere with or jeopardise the security of the lorry. The architect in Rushbond had created the danger by a positive act, but there was no comparable positive act by D’s officers. The fact of ML’s arrest was not itself sufficient to give rise to a duty of care in relation to C’s consignment.

HHJ Freeland QC found that Rushbond was distinguishable, and the factual basis of C’s case was, again, rejected. D’s officers did nothing to create the risk of danger. The risk of danger arose from ML’s conduct and his failure to contact his employers and/or failure to ask D’s officers at the layby whether he could contact his employers. Accordingly, C was unable to establish a duty of care on the basis that D’s officers had “made matters worse”.

Breach and causation

HHJ Freeland QC also concluded that, even if he was wrong about the duty of care, there was no breach on the part of D’s officers. It was reasonable of them to leave the lorry locked in the layby.  Similarly, C’s claim would have failed on causation grounds. There was no evidence capable of establishing when the theft occurred. Accordingly, it was equally possible that the theft occurred within ten minutes of D’s officers leaving the layby with ML and in that scenario the only possible step D could have taken to protect the load would be to station a patrol car by the lorry immediately upon ML’s arrest. HHJ Freeland QC considered that even if a duty of care was owed, D was not reasonably required to take that step, particularly given the fact that there was only one other roads policing vehicle available to cover a large area on the night in question.

Conclusion

Transport Arendonk provides a useful illustration of the principles applicable to identifying whether a public authority, in the exercise of its statutory powers, owes a common law duty of care. Members  of 1 Chancery Lane have acted in most of the leading cases in this area – including, most recently: CN v  Poole, Tindall and HXA.

 

[1] These authorities have been healthily supplemented by the Court of Appeal’s recent decision in Tindall v Chief Constable of Thames Valley Police [2022] RTR 16: see, esp., Stuart-Smith LJ at [54]. Further elucidation is expected (particularly in relation to claims brought against social services) following hand down of the Court of Appeal’s decision in the appeal of HXA v Surrey County Council [2021] EWHC 2974 (QB), in which Lord Faulks QC and Paul Stagg act for the local authority.

[2] In which Andrew Warnock QC and Ella Davis acted for the successful police force

[3] For the benefit of our readers, the juridical basis of the rule against liability for omissions was helpfully summarised by Lord Hoffman in Stovin v Wise [1996] AC 923 at 943G-H and 945C-E: “There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is· doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs. Wise [the defendant]) or natural causes. One can put the matter in political, moral or economic terms. In political terms it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect… Of course it is true that the conditions necessary to bring about an event always consist of a combination of acts and omissions. Mr. Stovin’s accident was caused by the fact that Mrs. Wise drove out into Station Road and omitted to keep a proper look-out. But this does not mean that the distinction between acts and omissions is meaningless or illogical. One must have regard to the purpose of the distinction as it is used in the law of negligence, which is to distinguish between regulating the way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity. To hold the defendant liable for an act, rather than an omission, it is therefore necessary to be able to say, according to common sense principles of causation, that the damage was caused by something which the defendant did. If I am driving at 50 miles an hour and fail to apply the brakes, the motorist with whom I collide can plausibly say that the damage was caused by my driving into him at 50 miles an hour. But Mr. Stovin’s injuries were not caused by the negotiations between the council and British Rail or anything else which the council did. So far as the council was held responsible, it was because it had done nothing to improve the-visibility at the junction”.

[4] In Spring v Guardian Assurance Plc [1995] 2 AC 296, Lord Goff emphasized that Hedley Byrne was not just  a case about negligent misstatement and that it was important not to lose sight of the overall principle arrived at. As noted by Lord Toulson in Michael at [67]: “the underlying principle rested on an assumption of responsibility by the defendant towards the plaintiff, coupled with reliance by the plaintiff on the exercise by the defendant of due skill and care. The principle that a duty of care could arise in that way was not limited to a case concerned with the giving of information and advice (the Hedley Byrne case) but could include the performance of other services.”

[5] In that case, the fire brigade negligently turned off sprinklers that were the only means of fighting the fire and this “had an immediate…adverse effect on the restraining of the fire and rapidly led to its going out of control. It made it impossible to contain the fire in block A, even after the seat of the fire was located; and it enabled the fire to spread into and across the now unprotected blocks B and C”: see 1022F. Liability was established.

Written by or involving: Laura Johnson QC, Henk Soede

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