Judgments - Waters (A.P.) v. Commissioner of Police For The Metropolis

(back to preceding text)

    In Frost v. Chief Constable of South Yorkshire Police, where actions for negligence were brought by police officers against their Chief Constable, this House regarded the officers as being quasi-employees of the Chief Constable. Lord Goff of Chieveley stated at p. 481A:

    "An employee (I will for present purposes include in this category a 'quasi-employee' such as a police officer who, although he holds an office and is not therefore strictly an employee, is owed the same duty by his 'employer' —here the Chief Constable of South Yorkshire Police) may recover damages from his employer in respect of psychiatric injury suffered by him by reason of his employer's breach of duty to him."

And at p. 497E Lord Steyn stated:

    "It is true that there is no contract between police officers and a chief constable. But it would be artificial to rest a judgment on this point: the relationship between the police officers and the chief constable is closely analogous to a contract of employment. And I am content to approach the problem as if there was an ordinary contract of employment between the parties."

See also per Lord Griffiths at p. 464A and Lord Hoffmann at p. 505D.

     Therefore, in my opinion, the plaintiff has a cause of action against the Commissioner unless he can establish at this stage that on grounds of public policy he owed the plaintiff no duty of care to protect her against victimisation and harassment by her fellow officers. It was on this ground that the Court of Appeal upheld the decision of Master Prebble and of Wright J. that the Statement of Claim should be struck out, and it was on this ground that Mr. Seabrook Q.C. for the Commissioner principally resisted the plaintiff's appeal.

    Mr. Seabrook relied on the decisions of the House in Hill v. Chief Constable of West Yorkshire [1989] A.C. 53 and Calveley v. Chief Constable of the Merseyside Police [1989] A.C. 1228 in support of his submission that it would be contrary to public policy to hold that the Commissioner owed a duty of care to the plaintiff. In Hill Lord Keith recognised at p. 59C that a police officer is not entitled to a general immunity against liability in tort in respect of his acts or omissions, but held on grounds of public policy that the police owed no general duty of care to members of the public to identify or apprehend an unknown criminal. He set out the considerations of public policy at p. 63C-H which, briefly summarised, were that the imposition of the liability contended for by the plaintiff would be unlikely to reinforce appreciably the general sense of public duty which motivated police forces in carrying out their function in the investigation and suppression of crime; that some actions involving allegations of negligence in the apprehension of criminals might require the courts to enter deeply into the general nature of a police investigation involving a variety of decisions on matters of policy and discretion, such as what particular line of enquiry to pursue and what was the most advantageous way to deploy available resources, which would be inappropriate for the courts to enter upon and which would require the courts to conduct an elaborate investigation of the facts; and that a great deal of police time, trouble and expense would be taken up in preparing for the defence of such an action and in the attendance of witnesses at the trial, with the result that there would be a significant diversion of police manpower and attention from their most important function which was the suppression of crime.

    In Calveley the House rejected a submission that a police officer investigating a crime suspected of having been committed by a member of the public or an offence against discipline suspected to have been committed by a fellow officer owed a duty of care at common law to the suspect. Lord Bridge of Harwich stated at p. 1238F:

    ". . . it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect."

In reliance on these decisions the Commissioner advanced the argument in paragraph 4(iv) and (v) of his written case:

    "(iv) Even a cursory examination of the allegations made in the substituted Statement of Claim gives an insight into the gargantuan task that would be involved in investigating and litigating the proliferation of facts and issues. If there are in fact no countervailing public interests there is a separate and discrete public interest in disposing of the claim.

    (v) Otherwise, if the matter were not to be decided at the interlocutory stage and the action allowed to proceed to trial, then the Respondent would be exposed to the mischief which underlies the established public policy immunity principles. The Court would be required to enquire into matters of police policy and discretion, issues of deployment of personnel and resources, and the investigative and operational actions and decisions of numerous police officers in a catalogue of unrelated incidents spanning a period of 4½ years."

    These are arguments of substance, but in weighing them it is important to have regard to the words of Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, 749G:

    "Sir Thomas Bingham M.R. took the view, with which I agree, that the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter-considerations are required to override that policy.ante, p. 633C-D"

    Mr. Seabrook did not seriously dispute the suggestion put to him in the course of argument that in some circumstances the Commissioner could be liable in negligence (like any ordinary employer) to his officers for providing unsafe office premises for them to work in or in providing unsafe articles for them to use, for example, soap containing harmful ingredients which caused dermatitis. And as an employee working under an ordinary contract of employment and alleging that she had been subjected to serious harassment and victimisation and that her employer had failed to take reasonable steps to protect her would have a cause of action fit to go to trial, I consider that strong grounds arising from public policy considerations must be shown to justify striking out the plaintiff's action.

    In my opinion the decisions in Calveley and Hill are distinguishable on the facts of this case. This is not a case in which the plaintiff's allegations relate only to negligence by the police in the investigation of an offence. As an important part of her case she complains of harassment and victimisation after she had made an allegation of rape against a fellow officer, and I consider that the fact that the alleged harassment and victimisation were triggered by the allegation of the offence does not bring that complaint within the ambit of the type of claim where the House held that considerations of public policy exclude the existence of a duty of care. In this case the plaintiff relies on the relationship of quasi-employee and employer which exists between her and the Commissioner as giving rise to his duty of care, and this was a factor absent in Calveley and Hill.

    I consider that in Swinney v. Chief Constable of Northumbria Police Force [1997] Q.B. 464, 484B Hirst L.J. was right to state that where the police claim immunity against an action for negligence public policy must be assessed in the round, which means assessing the considerations referred to in Hill together with other considerations bearing on the public interest in order to reach a fair and just decision. In Costello v. Chief Constable of Northumbria [1999] 1 All E.R. 550 a woman police constable sued the Chief Constable for the negligence of a police inspector in failing to go to her assistance when she was attacked by a prisoner in a cell at a police station. The High Court and the Court of Appeal rejected a claim by the Chief Constable in reliance on Hill that as a matter of public policy neither he nor the inspector owed a duty of care to the plaintiff. May L.J. at p. 555d stated the argument advanced on behalf of the Chief Constable as follows:

    "Mr. Robertson further submits that the courts are not the appropriate place to determine whether in operational circumstances a police constable who fails to go to the assistance of another police constable or a member of the public may have failed in any duty. The internal affairs of police forces are regulated by statute and regulation, including the Police (Discipline) Regulations 1985, SI 1985/518. Insp Bell may have been in breach of, for instance, paras 1 and 4(a) of Sch 1 to these regulations. The regulations contain no express provision to the effect that a police constable may not bring an action against his chief constable arising from omissions of a fellow police officer. But Mr. Robertson submits that Waters v. Commissioner of Police of the Metropolis [1997] I.C.R. 1073, which followed Calveley v. Chief Constable of the Merseyside Police [1989] 1 All E.R. 1025, [1989] A.C. 1228 is authority for the proposition that in circumstances such as those in the present case no actionable duty of care arises."

In rejecting this argument the learned Lord Justice stated at p. 564g:

    "There is in my view in this case a strong public policy consideration to balance with those identified in Hill's case, that is that the law should accord with common sense and public perception. I am sure that Astill J. was correct to say that the public would be greatly disturbed if the law held that there was no duty of care in this case. The particular circumstances of this case should not be left solely to internal police discipline. In addition, the public interest would be ill-served if the common law did not oblige police officers to do their personal best in situations such as these. The possibility of other sources of compensation is a relevant consideration, but not in my view more than that. Mr. Robertson's floodgates submission is no more persuasive in this case than in others where there should be a duty."

    If the present case goes to trial the preparation of the defence will take up much time and effort on the part of police officers, but this is a consequence faced by defendants in many actions and I do not consider that it is a consideration of sufficient potency to counterbalance the plaintiff's claim that she is entitled to have a remedy for a serious wrong. Moreover if the plaintiff succeeds at the trial in proving in whole or in substantial part the truth of her allegation that she was subjected to serious and prolonged victimisation and harassment which caused her psychiatric harm because she had made an allegation of a serious offence against a fellow officer and that the Commissioner through his senior officers was guilty of negligence in failing to take adequate steps to protect her against such treatment, such proof would reveal a serious state of affairs in the Metropolitan Police. If such a state of affairs exists I consider that it is in the public interest that it should be brought to light so that steps can be taken to seek to ensure that it does not continue, because if officers (and particularly women officers who complain of a sexual offence committed against them by a male colleague) are treated as the plaintiff alleges, citizens will be discouraged from joining the police, or from continuing to serve in the police after they have joined, with consequent harm to the interests of the community. In my opinion this is a consideration which carries significant weight when placed in the scales against the argument that the continuance of the action will place unreasonable and disproportionate burdens on the police and distract them from their primary task of combating crime.

    A separate argument advanced on behalf of the Commissioner was that there was no basis for allegations that the many different individual police officers accused of acts of harassment and victimisation were acting together pursuant to some conspiracy or agreed plan, and that it is not possible for the plaintiff to show that her psychiatric condition, or the aggravation of it, was caused by any act or acts of a single individual. In my opinion this argument does not assist the Commissioner because in a case of this nature the plaintiff is entitled to recover damages if she is able to establish that the negligence of the defendant caused her to suffer injury brought about by a succession of individual acts or decisions. In Barrett v. Enfield London Borough Council [1999] 3 W.L.R. 79, 98G Lord Slynn of Hadley stated:

    "I do not think that it is the right approach to look only at each detailed allegation and to ask whether that in itself could have caused the injury. That must be done but it is appropriate also to consider whether the cumulative effect of the allegations, if true, could have caused the injury."

    Accordingly I would allow the appeal although, like my noble and learned friend Lord Slynn, I wish to emphasise that I express no opinion on whether the plaintiff's action is likely to succeed. All that I decide is that it is not appropriate to strike out the action before trial.


My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he gives I, too, would allow the appeal.


Lords Parliament Commons Search Contact Us Index

© Parliamentary copyright 2000
Prepared 27 July 2000