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Is the duty of care expanding for Police Forces?

09 March 2020
Legally and operationally, the duty of care owed by public authorities, including police forces, seems to be expanding. The recent decision of Mrs Justice Laing in the matter of Chief Constable of Essex Police v Arendonk [2020] EWHC 212 (QB) has cast some doubt about the duty of care police forces owe in negligence and considers the appropriate timing to make an application for Summary Judgment. 

Transport Arendonk BVBA (the respondent) provides trucking and transportation services to companies across Europe. On the 8 September 2018 the respondent company was transporting a consignment of sportswear from Belgium to Sheffield. The truck in question was curtain-sided with heavy duty plastic reinforced by steel. 

The respondent driver was pulled-over for erratic driving and breathalysed. The driver provided a positive breath test and was subsequently arrested. The driver was not permitted to contact his employer. The truck along with the consignment of sportswear was left by the roadside for the night. It is a point of note, that the arresting officers rejected the express requests of the driver that his employer be made aware of his arrest and the subsequent abandonment of the truck and its cargo. 

The arresting officers undertook an inspection of the truck before leaving for the station. It was noted that the side curtain had a small tear but was otherwise secure.  That evening, the truck the consignment of sportswear was stolen by an unknown third party.

Arendonk brought a claim for pecuniary loss against the Chief Constable citing negligence and breach of statutory duty.  Upon receiving the Claim Form and following the principles established in Robinson v the Chief Constable West Yorkshire Police, the Chief Constable of Essex Police sought an Order for Summary Judgment. The primary contention of the Chief Constable being that the Police are not responsible for damage as a result of an omission as opposed to a positive act and the force had no control of the actions of unknown thieves. They relied on the judgment at para 70 in Robinson where it is stated; 

"They may be under a duty of care to protect an individual from a danger of injury which they have themselves created, including a danger of injury resulting from human agency in the absence of special circumstances such as an assumption of responsibility". 

The failures of the arresting officers to contact the respondent and/or secure the truck to another location were mere omissions and as such there was creation of risk and no assumption of responsibility over the truck or its cargo. 

The Chief Constable's application was dismissed on the basis that the creation of a risk or "danger" is fact-specific. There were too many hypothetical questions which arose as a result of the application. Only after Trial would the Court be in a position to discern whether the accumulation of omissions was such as to cause the truck to become vulnerable to theft. The Chief Constable appealed to the High Court. 

The matter came before Mrs Justice Laing who considered the history of analogous case law before concluding that the matter should proceed to a full Trial of the issues. 

The Statement of Case suggested that the police had a duty of responsibility to the respondent when their driver was arrested and their consignment left stranded and vulnerable to theft. An analysis of the Judgment could well be perceived to encourage a more liberal interpretation of the creation of risk or assumption of responsibility tests.  

The Judgment succinctly sets out the relevant case law to ask the two key questions in police negligence allegations, is there a duty to protect from harm or to confer some other benefit. The two questions arise as in Robinson, when the Force either created the risk of harm or their actions created an assumption of responsibility. 

However, further consideration of the Judgment should dissuade any belief in the latter notion until such time that the matter is decided at Trial. The Judgment alludes to the cautionary approach the Court should take before exercising powers to dispose of a matter summarily. In practice, it appears rarely appropriate to summarily dispose of matters which have fact specific legal tests at their core and which can only be equitably disposed of after the gathering of evidence. 

The timing of Summary Judgment applications is paramount. Once the evidential margins are established, the foundations of an application for Summary Judgment are unlikely to shift. At this point, the applicant will be far better placed to submit that the fact-specific tests for the creation of a danger or the assumption of responsibility are not established. This appears somewhat prejudicial for contemporary policing; forces are dealing with increasing budgetary constraints and are now facing a period of uncertainty until such time that ceiling of the duty of care can be established. Forces may be compelled to defend analogous matters to Trial.   

What is clear is that the case examines a situation in which the police had no control at least in a literal sense of the actions of a general band of thieves.  

The case poses a number of questions. Does knowledge of a higher risk connote control? Does  an accumulation of omissions on behalf of the police  have the same consequence of an overt act which ultimately causes the danger?. Either way, the Trial Judge has a difficult task in deciding whether to incrementally accept the expansion of the duty of care owed by Police Forces in the exercise of their duty, 


This decision is no doubt an important one for police forces and their officers across the country. At this stage forces are waiting with baited breath to determine whether the creation of risk and/or the assumption of responsibility tests will be expanded to include situations arising out of a routine traffic stop. 

Further Reading