Sherratt v Chief Constable of Greater Manchester Police

This is an appeal by the Defendant Chief Constable from the Order of Mr Recorder Berkley QC sitting in the Manchester County Court dated 31 October 2016 whereby, following a hearing on 16 September 2016, he gave Judgment for the Claimant on the preliminary issue.

That preliminary issue was defined in an Order of 12 May 2016 as being ‘whether a duty of care was owed by the Defendant to the Deceased’.

This claim was issued by the Claimant against the Defendant Chief Constable of Greater Manchester Police on the 29 January 2015. The Claimant was the partner of the Deceased at the time of her death and father to her children. He brings the claim for the benefit of the Deceased’s dependants, including himself, pursuant to the Fatal Accidents Act 1976 and for the benefit of the Estate of the Deceased pursuant to the Law Reform (Miscellaneous Provisions) Act 1934.

The claim arises out of the death of the Deceased who was found dead at her home on the morning of the 30^th of January 2012. For present purposes it is accepted that the Deceased took her own life. There are two pleaded causes of action: common law negligence and alleged breaches of convention rights under the Human Rights Act 1998.

The Recorder, as I am, was concerned only with the negligence claim and then only with the issue as to the existence of a duty of care owed to the Deceased. Issues as to breach of any such duty or issues as to causation were not before the Recorder.

The pleaded particulars of negligence amount to allegations that the defendant, either by his officers, employees or agents, failed expeditiously and/or adequately to deal with, and/or respond to, the information conveyed to them concerning the Deceased in a 999 call made by the Deceased’s mother.

The Recorder heard no live evidence at the hearing before him. At paragraph 12 of his Judgment the Recorder records that the facts stated at the introduction of his judgment were agreed.

Those facts as set out in the Introduction are as follows:

In addition to these agreed facts, a transcript of the 999 call made by the Mother at 6.44pm was admitted in evidence and the Recorder was invited to and did listen to an audio recording of the 999 call (as this court also has done).

Although the Recorder was taken to other material (as this court has been), such as a transcript of a subsequent call made by the police to the Mother at 19.55 and statements of the Mother and the Claimant subsequently made to the IPCC and the police respectively, the Recorder found no ‘significant assistance from those documents’. In the words of the Recorder (judgment at para. 12) ‘in the context of this claim, either a duty of care arose as a consequence of the 999 call (which is the pleaded case in the Particulars of Claim) or no duty of care ever arose’.

There is no dispute that the Recorder was correct in his analysis that the contents of the 999 call was pivotal to the dispute as to the existence of a duty of care, although both parties made reference to the subsequent material in support of their submissions as to the proper interpretation of the 999 call.

Mr Johnson QC in his written argument on behalf of the appellant Chief Constable encapsulated the issue on this appeal as being ‘whether the Recorder was right to find that the police owed a duty of care in response to a 999 call’. Mr Daniels on behalf of the respondent Claimant in his argument summarised the finding of the Recorder as being that a duty of care was owed to the Deceased ‘on the particular facts of this case where specific assurances were made by those within the Appellant’s control room to (the Deceased’s) mother that police officers would be promptly dispatched and that she relied upon that assertion’.

The matters relied on as giving rise to a duty of care are pleaded at paragraph 24 of the Particulars of Claim in this way:

The Recorder at paragraph 5 of his Judgment himself rightly in my judgment analysed the pleaded claim in negligence (by reference to paragraph 24) as being ‘predicated on a duty of care arising because of the acceptance by the police of responsibility for the welfare of the Deceased’ and that this acceptance was as a result of (or it might be said manifested itself by) ‘taking the Mother’s call; creating an incident log, informing the mother that they would deal with the incident and agreeing to dispatch officers to the house’.

The express reasoning of the Recorder makes clear that he founded the duty of care which he held existed in this case, upon an assumption of responsibility by the police for the welfare of the Deceased arising out an assurance to the Deceased’s mother, coupled with a ‘detrimental reliance by the Mother’.

Thus under the heading ‘The Findings’ the Recorder states at para. 13:

‘13. Having read the agreed transcript and listened to the audio recording, I am satisfied that an assurance was given to the Mother by the civilian call handler which could potentially amount to an assumption of responsibility by the Chief Constable and that there was detrimental reliance by the Mother’

and then at paragraph 15 (having at paragraph 14 set out some 14 particular features of the 999 call to which he had had regard in coming to his findings):

‘15. In my judgment, the assurance given to the Mother was that the police would respond to what was an emergency by forthwith dispatching officers to the house as a priority step and that if required a hospital transfer would be arranged by the police rather than the Mother’ (emphasis of this court)’

And finally at paragraph 16:

‘I am satisfied that there was reliance by the Mother because I am satisfied, on the balance of probabilities, the Mother would, but for the assurance, have taken other steps that she would have deemed necessary, including calling for an ambulance herself, and/or soliciting the assistance of others; and/or made her own way to the house. Since there is no suggestion that the Mother took any of those steps, and given that from the audio she appear to have been reassured and indeed expressed her gratitude to the police, I have no hesitation in finding that there was sufficient reliance to impose a duty….’

The words I have omitted from the end of this paragraph are ‘subject to the specific countervailing points identified in paragraph 10 of this judgment which I regard as legal issues’.

That this was the Recorder’s primary process of reasoning (as distinct from a Caparo imposition of duty or a finding of a sufficient degree of proximity giving rise to a special relationship upon which the duty arose as in White v Jones) is clear from further passages in the Recorder’s Judgment. By Caparo I am referring to the three-stage test for the imposition of a duty of care put forward by Lord Bridge in Caparo Industries Plc v Dickson [1999] 2 AC 605,617-618, namely (i) foreseeability of damage; (ii) a sufficient relationship of proximity between the parties; and (iii) whether as a matter of legal policy it is ‘fair just and reasonable’ that a duty of care should exist. By White v Jones I am referring to the decision of the House of Lords reported at [1995] 2 AC 207 by which a duty of care was held to be owed by a solicitor to intended legatees under a will notwithstanding there had been no undertaking given to the legatees by the solicitor and no reliance by the legatees on anything said or done by the solicitor. This was not a case relied on by the Claimant in these proceedings but was raised by the Recorder as being of possible relevance albeit it was in the context of very different facts. and in respect of it, the Recorder sought and obtained written submissions from the parties.

I shall return to later passages in the Recorder’s judgment suggesting as Mr Johnson submitted, the Recorder (wrongly in Mr Johnson’s submission) conflated different legal principles and tests in finding a duty of care existed in this case.

However that the primary route to finding a duty of care was a combination of a finding of an assumption of responsibility for the welfare of the Deceased through the assurances given to the Mother and of detrimental reliance upon the assurances by the Mother, is demonstrated by the following further passages in the Recorder’s judgment. Thus:

‘21. My attention was drawn to a number of cases where the police and other emergency services were held not to owe a duty of care in circumstances when they had failed to or were tardy in their response to a 999 call.

The Recorder was faced with a submission on behalf of the Chief Constable (renewed before me) that there was no basis for a finding of an assumption of responsibility towards the Deceased and hence no basis for a duty of care owed to the Deceased, absent any evidence of a communication between the Defendant and the Deceased, and absent any assurances given to the Deceased or of her reliance upon those assurances. Any assurance was given to the Mother and any reliance was that of the Mother.

The Recorder was not impressed by this argument. He considered it to be an ‘almost transactional approach based… very emphatically on Hedley Byrne principles applicable to negligent misstatement’ which moved away from ‘the primary question of proximity’. He considered rather that the facts in the present case were ‘broadly analogous’ to the facts in Kent v Griffiths [2001] 1QB 36 where a duty was imposed by the judge at first instance and whose decision was upheld the Court of appeal. Kent concerned the duties owed by the ambulance service.

The Recorder (at paragraph 23) fairly described the basic facts of Kent as being ‘that the claimant suffered an asthma attack at home; an assurance was given to a doctor that an ambulance would arrive within minutes; and in reliance upon that assurance the doctor decided to wait rather than convey his patient to the hospital himself with serious adverse consequences for the claimant’. In Kent the ambulance service was held liable. The Recorder regarded Kent as instructive as the relevant assurances were given to the doctor and not to the claimant and ‘the reliance was similarly that of the doctor and not necessarily the claimant and yet a duty of care was imposed’ (judgment para 24).

The Recorder dismissed what he regarded were fallacious bases upon which to distinguish Kent from the present facts. Thus at paras 25 to 26 he said the following:

‘25. Mr Johnson QC... first sought to distinguish the present case because the ambulance service is in a different position from the police in that it is part of the health service. Such a distinction was indeed made by Lord Woolf MR in Kent but as was pointed out by Lord Toulson in Michael v Chief Constable of South Wales and Gwent Police [2015] UKSC 2 [81]:

‘the Court of Appeal [in Kent] upheld the trial judge’s findings of liability against the ambulance service. It would have been sufficient to hold that the acceptance of the doctor’s request for an ambulance to come immediately gave rise to a duty of care but Lord Woolf MR [with whom the other members of the court agreed] went further. He held that the ambulance service as part of the health service should be regarded as providing services equivalent to those provided by hospitals and not as providing services equivalent to those rendered by the police and fire services’.

26.

As the words I have underlined demonstrate, the primary basis for the imposition of the duty care in Kent was the assurances given to the doctor and the doctor’s reliance.

27.

Mr Johnson then sought argue that in Kent the doctor was himself at the claimant’s home and that the claimant himself would have wanted to obtain the service so in that sense the doctor was the claimant’s agent or otherwise acting on behalf of the claimant.

28.

I do not discern from any part of the judgments in Kent any notion that the doctor’s physical presence in the Claimant’s house or the common interests of the doctor and his patient were determinant factors which avoided what would otherwise be a necessity for the representation be made to the claimant and the reliance placed by the claimant to establish the duty. In any event (subject to two matters)...there are some closely analogous features in the facts in Kent to those in the present case. In both cases the communication was between the emergency services and a third party who was concerned for the welfare of the vulnerable person who was likely to come to harm if urgent action was not taken. In both cases (on my findings) assurances were given to that third party and detrimental reliance occurred’ (emphasis of this court).

The two matters to which those observations were made subject by the Recorder, were a factual one (the Mother’s geographical distance from the Deceased’s home) and a legal one raised by the Defendant on ‘conflict of interest’ as going to negate a duty of care owed to the Deceased in this particular case.

The Recorder summarised the Defendant’s contentions on conflict in these terms at paragraph 10(5):

‘The duty contended for by the Claimant is a duty to the Deceased to restrain or control her own conduct or to deal with the consequences of the Deceased’s own conduct, which necessarily produces a conflict between the Deceased’s autonomy to choose to self-harm and any duty to prevent such conduct.’

As I understand the submissions made by Mr Johnson to me, the point being made to the Recorder had been that there was a relationship of conflict as between the police and the Deceased in contrast to the position where the police were being called to assist a victim of crime, and absent any relevant prior relationship between the Deceased and the police, and absent the Deceased being in the care or custody of the police, no duty to the Deceased to prevent self-harm or to deal with its consequences could arise. A duty to protect from self-inflicted harm was distinct from a duty to protect from an external threat of harm and such a duty, so Mr Johnson’s submission went, could, on the authorities, arise only in very special circumstances where for example the police had taken someone into their custody, and as part of a wider duty owed by a custodian to a detainee to take reasonable care for their safety (see Reeves below).

The Recorder was not persuaded by the conflict point. He dismissed it at paragraph 29 of his Judgment in these terms:

‘29. As to the conflict issue and the distinction between the Deceased desire to harm herself and that of an external threat of injury, I am not persuaded by Mr Johnson’s submission. Understandably no defence of turpitude has been advanced by the Chief Constable and since the passing of the Suicide Act 1961 it has been recognised that suicide is not a simple process. I do not feel able to characterise a suicide as representing the manifestation of the personal choice of an Individual to take her own life and so to distinguish the Deceased from the victim of an external threat of harm.’

but then added in the following paragraph by reference to his findings of fact arising from his consideration of the 999 call, that as a matter of fact the Deceased had wanted the emergency services to attend and no conflict arose on the facts:

‘30. Further even if I am wrong, in the present case there is evidence which leads me to the conclusion that, as in Kent, the Mother and the Deceased had a mutual interest in getting the emergency services to the house. In particular the Mother reported that her daughter had contacted social services to get help and wanted to make contact with that agency. The mother said (page 6 of the transcript) ‘it’s her asking for help’. On the basis of the only evidence the parties have chosen to put before me I am not persuaded as a matter of fact there was a conflict’

The Recorder also in paragraph 33 and onwards prayed in aid the decision in White v Jones to support his finding of a duty of care notwithstanding the absence of any direct contact between the victim and the tortfeasor. It is in these passages that Mr Johnson has submitted the Recorder conflated different legal tests and principles; on the one hand the three stage Caparo test; on the other the finding of a special relationship as in White v Jones to meet a particular set of facts; and says Mr Johnson, the Recorder wrongly ignored a consistent line authority that in the context of the police carrying out their public functions a duty of care does not fall to be imposed on Caparo grounds: there needs to be an assumption of responsibility towards the claimant within the meaning of the principles of Hedley Byrne v Heller.

The passages are as follows.

First those at paragraphs 33 to 35 seeming to embrace the route to a duty which enabled the majority in White v Jones to find for the disappointed intended beneficiaries, namely that of a special relationship between the solicitor and those beneficiaries:

‘33. In a very different context, the courts have recognised that a duty of care can arise where the victim is not in direct contact with the tortfeasor... So in White v Jones …the majority of the House of Lords held that a duty of care arose to disappointed beneficiaries who were the true victims of the solicitor’s negligence in failing to execute the will.

34.

Lord Browne-Wilkinson specifically disavowed the proposition that reliance was a pre-requisite in all cases based on negligent action or inaction (cites passage at 272F – see below).

35.

So what would amount to a special relationship in the present context? I invited counsel to consider the White v Jones issue which I raised in the course of argument... Despite Mr Johnson’s detailed written submissions, I am satisfied that there was a sufficient degree of proximity between the Chief Constable and the Deceased which created the relationship upon which the duty could arise.’

In deference to the submissions of Mr Daniels on behalf of the respondent Claimant, that whilst reliance is essential for cases of negligent misstatement, that is not necessarily the case for other forms of negligence, I set out in full the material passage in the judgment of Lord Browne-Wilkinson referred to by the Recorder ([1995] 2 AC 207, at 272 D- G:

‘Second, since this House was concerned with cases of negligent misstatement or advice, it was inevitable that any test laid down required both that the plaintiff should rely on the statement or advice and that the defendant could reasonably foresee that he would do so. In the case of claims based on negligent statements (as opposed to negligent actions) the plaintiff will have no cause of action unless he can show damage and he can only have suffered damage if he has relied on the negligent statement. Nor will a defendant be shown to have satisfied the requirement that he should foresee damage to the plaintiff unless he foresees such reliance as to give rise to the damage. Therefore although reliance by the plaintiff is an essential ingredient in a case based on negligent misstatement or advice, it does not follow that in all cases based on negligent action or inaction by the defendant it is necessary in order to demonstrate a special relationship that the plaintiff has in fact relied on the defendant or the defendant has foreseen such reliance. If in such a case careless conduct can be foreseen as likely to cause and does in fact cause damage to the plaintiff that should be sufficient to found liability;’

Then those passages suggesting reliance on the Caparo formulation:

‘36. In coming to that conclusion I have taken into account the following features of this case:

The Recorder ended his judgment by stating that the determination of the issue which he had made in this case was entirely dependent upon its specific facts and ‘the application of well established principles’ and as each case would turn on its own facts, he did not consider his judgment had incrementally added to the scope of the existing duties imposed on the police as a public service or had created any new principle.

He accordingly concluded ‘that by the time the 999 call had concluded a duty of care was owed by the Defendant to the Deceased’.

It is thus clear that the starting point for the Recorder’s determination of the preliminary issue was his findings of fact in two respects. First that the Mother had been given a specific assurance by the call handler that (a) the police would respond to what was an emergency by forthwith dispatching officers as a priority step and (b) that if required a transfer to hospital would be arranged by the police rather than the Mother [the matters going to assumption of responsibility for the welfare of Deceased]. Secondly, that the Mother would have taken other steps to aid the Deceased (calling an ambulance herself; soliciting the assistance of others; making her own way to the house) if she had not been given the assurance [the matters of fact gong to reliance].

The Appellant takes issue with these findings contending there was no sufficient evidential basis for them.

The only evidence before the Recorder (or at least the only evidence looked to by the Recorder), as I have indicted, was the transcript of the 999 call and the audio recording listened to by the Recorder.

The Recorder himself identified in paragraph 14 of his judgment particular features of the 999 call transcript and the audio recording to which he had regard in making these findings.

Before setting out those features, it is convenient if I record the rival submissions to me as what the transcript and audio demonstrated and the passages relied on.

In summary Mr Daniels says that that there was more than enough in the transcript and audio recording to establish the facts found by the Recorder as going to assumption of responsibility as well as reliance. In oral submissions Mr Daniels relied on the inter-action of 3 things emerging from any review of the transcript of what the Mother was being told namely that the Mother was being told i) police officers were going to be dispatched to the Deceased’s house; ii) that they were going to be dispatched promptly/quickly; ii) that she should leave it to the police, including any calling of an ambulance. He further submitted that the Recorder was entitled to take into account from the audio recording the clear indications of urgency and fear on the part of the Mother, and the professed reassurances;

In written submissions Mr Daniels suggested that the agreed transcript demonstrated that the Mother told the call handler Karen Lord amongst other things, that:

Then submitted Mr Daniels, the transcript demonstrated that the call handler on a number of occasions reassured the Mother that help was being dispatched. He relied on the following passages (emphasis is that of this court):

Mr Daniels submitted that whilst it was acknowledged that no specific time was given for the officers to be dispatched, this is not of significance when as shown on the transcript, the Mother was left firstly with the assurance that prompt action was being taken (Mr Daniels relies in particular on the passage: ‘Right... let me get some officers on the way first of all Sheila, don’t worry about it’) and secondly that she need not do anything else – for example it was not necessary for her to call the ambulance service (see again the passage at p.6-7: SB: ‘she needs to get to hospital before she hurts herself’. CT: ‘All right, you leave that with us’ SB: ‘Thank you’). Mr Daniels submitted the assurances given were in line with those given in Kent v Griffiths and/or were of the same effect.

Mr Johnson on behalf of the Appellant submitted that the words of reassurance offered by the call handler were at most only what he described as ‘general words of reassurance’ and did not amount to any clear promise or undertaking that the police would be dispatched at once, sufficient to found a ‘relevant assurance for a finding of an assumption of responsibility in Hedley Byrne terms’ for the purposes of the imposition of a duty of care (leaving aside other issues raised going to the person to whom any such assurances were given). The high water mark of what the call handler said (CT: ‘Right... let me get some officers on the way first of all Sheila, don’t worry about it’) amounted to no more than an expression of the first task the call handler was going to undertake. There was not here any promise that a police officer would arrive within any particular period of time. As in Michael (see below) no promise was given when the units would arrive. What Mrs Lord the civilian call handler was saying amounted to no more than a routine expression of expectation of what the police intended to do, that is to seek to respond to the call; and that ordinary expression of expectation – albeit not expressed in the transcript – was always going to be subject to contingencies going to resources and competing priorities.

Mr Johnson submitted what was said here could be likened to the words given by the Gwent police call operator in Michael (Michael v Chief Constables of South Wales and Gwent Police [2012] EWCA Civ 981; [2015] AC 1732) to the 999 caller Ms Michael (who was later to be found stabbed to death by her partner), namely that her call (in which she reported her partner had already hit her and was threatening to return to the home in South Wales to kill her) would be passed on to the South Wales Police who would want to call her back and asked her to keep her phone free. Mr Johnson relied on the observations of Longmore LJ in the Court of Appeal finding that these words could not give rise to an assumption of responsibility towards the caller on the part of either police force for the purpose of founding a duty of care. They are to be found at [2012] EWCA Civ at 796 [22]:

‘The question of the assumption of responsibility to Ms Michael is not much more difficult. The South Wales Police assumed no responsibility to her because they were never in contact with her. The highest it can be put against the Gwent police is that Ms Mason by saying that South Wales police would ‘want to call her’ was saying that the South Wales police would call her and that she should keep her phone free. To my mind this was more a routine expression of expectation that South Wales police force would call her not an assurance that they would and, still less was it an assumption of responsibility for Ms Michael’s safety or to ensure that the South Wales Police did indeed call her. The question is not susceptible of much more elaboration.’

Mr Johnson relied further on the agreement with these sentiments expressed in the Supreme Court by Lord Toulson at [2015 AC 1732,1769 [138]] (with whom the other Justices agreed):

‘Issue 3: should the police be held to have assumed responsibility to take reasonable care for Ms Michael’s safety?

138.

Mr Bowen submitted that what was said by the Gwent caller who received Ms Michael’s 999 call was arguably sufficient to give rise to an assumption of responsibility on the Hedley Byrne principle as amplified in Spring v Guardian Assurance plc [1995] AC 296. I agree with the Court of Appeal that the argument is untenable. The only assurance which the call handler gave to Ms Michael was that she would pass on the call to the South Wales Police. She gave no promise how quickly they would respond… The case is very different from Kent v Griffiths… where the call handler gave misleading assurances than ambulance would be arriving shortly’.

With this background of the rival contentions in mind I set out the features of the 999 call (transcript and audio) to which the Recorder expressly had regard (judgment at para. 14):

Although not relied on by the Recorder in reaching the decision he did, there was before him the agreed transcript of the further call made at 19.45, about an hour after the first 999 call, by the police to the Mother, in which the police caller amongst other things says ‘Hello, it’s the police here, I am just apologising that we are not there with you yet’ and the Mother, amongst other things, says ‘ have you manged get to Georgina’ to which the reply is ‘er not as yet, that’s what I’m ringing to tell you but we will be as soon as we can’.

Again, although not relied on by the Recorder, the Claimant had made a witness statement (in Section 9 Criminal Justice Act form) dated 26 of April 2012 for the purposes of an investigation into the death. This was before the Recorder. In it, amongst other things, he had said:

‘on Sunday 29th of January 2012 I do not recall Georgina making any threats to take an overdose. I had no concerns she would do anything stupid because I thought I knew Georgina I trusted my own instincts, … I just did as she asked which was to take Cain away from the house at the end of the day… I just thought the next day the situation would of calmed down I was going to contact the social services and tell them everything that had happened and arrange further meetings. If I thought that she was going to harm herself I would not have left her on her own’.

Three grounds are raised in the Notice of Appeal. I set them out verbatim:

The starting point in the context of a claim against the police, is an interaction between two important principles applicable to the finding of a duty of care in negligence. The first is the requirement of proximity. To quote Lord Keith in Hill v Chief Constable of West Yorkshire [1989]AC 53,60;

‘it has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between plaintiff and defendant, and all the circumstances must be carefully considered and analysed in order to ascertain whether such an ingredient is present’.

The second relates to considerations of public policy and the core principle negating the imposition of a private law duty of care on the part of the police when carrying their public duties.

There was no dispute between Mr Johnson and Mr Daniels that:

This latter principle has been described as the core principle embracing the core function of investigating and preventing crime. Put another way, the general rule is that no private law duty of care in negligence is owed by the police to individual citizens for failure to comply with their public duty to investigate and prevent crime. In Van Colle v Chief Constable of the Herefordshire Police [2009]1 AC 225, at [80], Lord Hope referred to ‘the area of application of the core principle which protects the police function of investigating and suppressing crime in the public interest’.

Mr Daniels sought to persuade me that this core principle applied only to the public duty of the police in investigating and preventing crime whereas in the present case the police were purporting to carry out a different function - which was the same function as the ambulance service – in agreeing to go around to the house to see if the Deceased required being taken to hospital. He pointed out that the Mother, when dialling 999, could have asked for the ambulance service but chose to be put through to the police who in effect told her that there was no need to for her to call the ambulance services and to leave it all to the police. The assurances given, submitted Mr Daniels, were in line to those given in Kent and/or of the same effect, and it should not matter for the purposes of the imposition of a duty of care, to which of the emergency services the call was made. Mr Daniels submitted that although the Appellant sought to distinguish Kent as concerning the ambulance service as opposed to the police, analysis of the judgment supported the contention that whilst as a matter of general principle the application of the duty of care is not the same as between two emergency services, it is not authority to suggest that the police will not have a duty of care when agreeing to perform the same function as the ambulance service as was, he submitted, the case here.

Mr Johnson disputed this analysis. He submitted that the police function embraced by the core principle included the public duty to protect life and was not confined in the way suggested. The origins of the police public duty was the statutory duty imposed on every police officer by Schedule 4 to the Police Act 1996, to prevent crime and protect life.

It was not in dispute that there could be an exception to this general rule if it could be established on the facts of any given case that the police had assumed responsibility for the care of a particular individual. This would provide the necessary proximity and would not fall foul of the considerations of public policy applicable to the general rule. Thus in Van Colle at [135], Lord Brown observed:

‘True it is that in Brooks both Lord Nicholls of Birkenhead and Lord Steyn contemplated the possibility of exceptional cases on the margin of the Hill principle which might compel a different result. If, say, the police were clearly to have assumed specific responsibility for a threatened person’s safety – if for example they had assured him that he should leave the matter entirely to them so he could cease employing bodyguards or taking other protective measures himself – then one might readily find a duty of care to arise. That, however, is plainly not this case’

In Brooks itself, Lord Steyn at [22] had referred to different considerations arising ‘where the police had by conduct assumed a responsibility’ and observed that this was a reference to the principle in Hedley Byrne; and at [29] he further observed that Counsel for the Commissioner ‘concedes that cases of assumption of responsibility under the extended Hedley Byrne doctrine... fall outside the principle in Hill’s case. In such cases there is no need to embark on an inquiry whether it is just fair and reasonable to impose liability for economic loss: Williams v Natural Life Heath Foods Ltd [1998] 1 WLR 830.’

There was however a dispute as to what had to be established to bring the claim within the ‘assumption of responsibility’ exception. Mr Johnson’s submission was that this exception being an extension of the Hedley Bryne principles (originally applied in the context of negligent misstatement causing economic loss), the key principles of Hedley Byrne liability had to be made out, namely an assumption of responsibility towards the particular individual to whom the duty of care was alleged to be owed, (in this case the Deceased) by a communication with, or which was to the defendant’s knowledge (actual or constructive) would be passed onto, the individual, and then detrimental reliance by that individual.

Mr Johnson took me through classic expositions of the ‘assumption of responsibility’ exception to be found in the authorities.

In the fire brigade case (Capital & Counties PLC v Hampshire County Council) [1997] QB 1004 where the Court of Appeal had held that mere attendance by the fire brigade at a fire did not give rise to a private law duty of care to the property owner, the duty to fight fires being owed – like the public duty of the police – to the public generally, Stuart-Smith LJ giving the judgment of the court, put the position thus at 1034G:

‘we now turn to the second submission made on behalf of all the plaintiffs that the requisite proximity exists. It involves the concept of assumption of responsibility by the fire brigade and particular reliance by the owner. As a general rule a sufficient relationship of proximity will exist when someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies on such skill and there is direct and substantial reliance by the plaintiff on the defendant’s skill: see Hedley Bryne… and Henderson v Merrett Syndicates Ltd [1995]2 AC 145; There are many instances of this. The plaintiffs submit that which is most closely analogous is that of doctor and patient or health authority and patient. There is no doubt that once the relationship of doctor and patient or hospital authority and admitted patient exists, the doctor or hospital owe a duty to take reasonable care to effect a cure, not merely to prevent further harm’.

The court in Capital & Counties went on (at 1037D) to consider ‘a number of cases where the court had held that the relationship of proximity arises so as to give rise to a duty of care for the plaintiff’s physical safety which are based on assumption of responsibility and reliance’ including Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283, before concluding (1038 E):

‘These are all examples of where the court has considered on the special facts of the case that there is a sufficiently close relationship of proximity to give rise to a duty of care. But we do not think they are anywhere near the circumstances that arise in these appeals. In our judgment, a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the fire ground and fighting the fire...’

The high water mark of the authorities on this issue for present purposes are the observations of the Court of Appeal in M v Commissioner of Police of the Metropolis [200] EWCA civ 1361 which Mr Johnson submitted demonstrated in the police context the need for a rigorous application of the Hedley Byrne principles before a duty of care can arise, in particular the need to show an assurance by the defendant and detrimental reliance on that assurance by the person to whom the duty was alleged to have been owed.

M involved an asserted duty of care owed by the police to the claimant and her sisters first in the investigation of allegations of sexual and physical abuse made against their stepfather, and secondly in taking decisions whether he should be prosecuted. The court below, (following Hill and Brooks) had struck out only that part of the claim based on a negligent failure properly to investigate the allegations. This was because (M at [7]) ‘the police owe no general duty of care in tort to victims of crime to investigate their allegations’ but had preserved the remainder. The Court of Appeal held that the entirety of the claim should be struck out as disclosing no reasonable cause of action. The court (at [7]) referred to the submission that the second aspect of case was different from the first because ‘in deciding not to prosecute, the police took into account the interests of the children. The police thereby… assumed responsibility for the children; this additional factor... takes the case out of outside the general rule’.

The court in M rejected this submission saying at [27]:

‘The particular problem which Mr Roche faces is that there are two elements to a case based on assumption of responsibility. The first is the assumption itself. The second is reliance by the claimant on that assumption. That second element is a key part. That it is a vital part is apparent from the passages from Hedley Byrne …set out in the speech of Lord Goff in Henderson v Merrett... at 178-179. No such reliance is pleaded in the present case; nor would it seem to be pleadable’.

The court went on to find that the decision in L v Reading Borough Council [2001] 1WLR 1575 where ‘in the case of neither the child nor father was there any particular act demonstrating reliance on the supposed assumption of responsibility’ was to be confined to its facts, and the ‘decision in L does not require us to hold that the general rule for a duty of care in assumption of responsibility cases – that there should be reliance upon that assumption by the supposed victim of the tort- is inapplicable here’ (L at paragraph 38).

So submitted Mr Johnson, in written argument ‘likewise in the present case: reliance by the Deceased (which is what is important but the same is true of the Respondent) is not pleaded, nor would it be pleadable’.

Mr Daniels in response submitted that reliance by a third party, such as the Mother in this case, acting on behalf of the alleged victim of the tort, in this case her daughter, who was in no position to make the call herself or to receive the assurances given to the Mother directed to her (the Deceased’s) welfare, was sufficient on the facts of this case to give rise to the duty of care imposed by an assumption of responsibility for the Deceased’s welfare. Whether such third-party reliance was sufficient had to depend on the facts of the particular case. The police in present case were conducting themselves in the same way as the ambulance service in Kent and the Mother was in the same position as the Doctor in Kent, where the focus was on the individual concerned, unlike for example the fire service in Capital and Counties who had to deal with collateral damage to adjoining properties. In this case submitted Mr Daniels where the assurance was patently being sought by the Mother and being given to her, on behalf of herself and her daughter, the fact the daughter did not herself receive the assurance cannot matter given she was in no position to become aware of it or do anything in reliance upon it. The position was analogous to that in Kent. As Lord Woolf had said ([45]) situations could arise where there is a conflict between the interests of a particular individual and the public at large but ‘in the case of the ambulance service in this particular case the only member of the public who could be adversely affected was the claimant. It was the claimant alone for whom the ambulance had been called’; Again as was said in Kent, ([9]) referring to the reasoning of the Court of Appeal previously refusing to strike out the claim, ‘whereas the duty to fight fires remains a duty to owed to the public at large… by contrast once a call to the ambulance service is made, the service is dealing with a named individual upon whom the duty becomes focused’ and furthermore (analogous to the position of the Mother in the present case, submitted Mr Daniels) ‘if an ambulance service is called and agrees to attend the patient, those caring for the patient normally abandon any attempt to find an alternative means of transport to the hospital’.

Other cases where a duty of care has been held to arise upon the police, to protect an individual from self-harm (particularly pertinent of course in the present context) are to be explained says Mr Johnson by the particular fact that the individual had been arrested and taken into police detention so that the police had thereby taken him into their care, taken control of him, and thereby assumed responsibility for his welfare. See Reeves v Commissioner of Police for the Metropolis [2001] 1 AC 360 and the observations of Schiemann LJ in Vellino v Chief Constable of Greater Manchester Police [2001] EWCA Civ 1249, at paras [13] to [16]. This was to be contrasted, said Mr Johnson, with the present facts where the Claimant was seeking in effect to impose a private law duty on the police owed to the Deceased to restrain or control the Deceased’s own conduct or to deal with the aftermath of her own conduct but without there being any relevant prior relationship between the Deceased and the police. Mr Johnson’s submission was that absent any such prior custodian/prisoner relationship, absent the Deceased being within their care or custody, no duty could be owed.

I can allow this appeal only if I consider that the decision of the Recorder was wrong; CPR 52.21(3). This is not an appeal in which it is being alleged that decision was unjust on grounds of irregularity in the proceedings.

I bear in mind that the Recorder was being asked to determine whether a duty of care existed in this case as a preliminary issue. This was to be determined on the evidence before him and according to the facts which he found on that evidence. His determination that there was, is binding as the case goes forward to the further hearing on liability. This was not an application on the pleadings – that is for strike out or for summary judgment on the basis that the pleadings disclosed no reasonable cause of action.

The appeal is limited to a review of the decision and is not a rehearing (CPR52.2(1). I can interfere with the Recorder’s findings of fact only if I consider that those findings were not reasonably open to him on the evidence before him or that he drew inferences of fact from the evidence which were not reasonably open to him.

Notwithstanding Mr Johnson’s submissions, in my judgment, it was reasonably open to the Recorder on the basis of the agreed facts and the contents of the 999 call, to find the facts recorded at paragraph 15 of his judgment, namely that the police call handler gave a specific assurance to the Deceased’s Mother in response to what was being communicated by her as an emergency, that police officers would be dispatched forthwith to the Deceased’s house as a priority step to check on the wellbeing of the Deceased, and that if required, a transfer of the Deceased to hospital would be arranged by the police rather than the Mother.

The transcript and the audio of the 999 call was laid before the Recorder as evidence. No objection was taken in the court below to the receipt of the transcript and the audio by the Recorder as part of the evidence. Although Mr Johnson submitted that it was not before the Recorder as evidence of the truth of what was stated therein, it was certainly before the Recorder as evidence of what was being reported to the police by the Mother, (and as to her emotional state and her grateful response to assurances being given) including (according to the agreed facts set out at the beginning of the Recorder’s judgment) that the Mother was reporting her grave concerns for the welfare of her daughter; and as evidence of what was being said to the Mother by the police in response. It was certainly evidence of the state of mind of the Mother, including her plea that she was very frightened for her daughter, that her daughter was the one who was asking for help, and that she needed to go to hospital, (a plea said more than once) and that she, the Mother, was ill and could not get to her and was getting worked up because of this. In response to a specific question from the call handler the police were told by the Mother her daughter was happy to go somewhere to get professional help. It was certainly evidence that in response, the police in that call told the Mother not to worry about it, that she the Mother had helped by ringing the police; that police would be got on the way first of all to go down to the daughter’s house to check on everything and further that she, the Mother, need not do anything else herself as regards helping her daughter, and she should now leave things to the police, including any calling of any ambulance or other means of transferring the daughter to hospital.

The features of the transcript and the audio recording identified by the Recorder (see paragraph 48 above) more than justified in my judgment the conclusion he came to as regards assurances being given to the Mother. I agree with Mr Daniels, that although the police handler did not state any specific time as to when the police would arrive, the clear message being given to the Mother was twofold, namely that help for her daughter was going to be dispatched to her house promptly and quickly and secondly that she should leave with the police any need for the daughter to get to hospital. These were clearly different from the assurances or lack assurances given in Michael and I agree they were broadly in line with the assurances given in Kent and broadly to like effect.

Further notwithstanding the lack of any live evidence from the Mother, it was in my judgment reasonably open to the Recorder to find detrimental reliance on the part of the Mother in response to these assurances. The transcript and audio speak for themselves as regards reliance. On their face the Mother was obviously grateful for the assurance given that she could leave matters to the police. Everything pointed to the Mother relying on what she was told by the Appellant’s control room and taking no further steps to get help to her daughter. As there was no evidence that the Mother had done anything other than rely on what she was being told, the Recorder in my judgment was entitled to find as he did at paragraph 16 of his judgment, on the balance of probabilities. If it were necessary to point to further evidence in support of such reliance, there was the transcript of the further call to the Mother by the police at 19.55 (an hour or so after the 999 call) in which she was asking whether they had managed to get to her daughter.

I should add that the fact there may be a question mark over whether the Claimant himself had been battling with the Deceased to prevent her taking an overdose is really to nothing on the issue whether in the 999 call the police were giving assurances to the Mother as regards the welfare of her daughter in response to what was being reported to them (and what is agreed was being reported to them – see again the agreed facts – was that the Mother was reporting her grave concern for the welfare of her daughter). Mr Johnson as I have indicated submitted there was a stark issue of ‘underlying’ fact whether the Claimant had really been battling with the Deceased to stop her taking an overdose. In my judgment whether this was the fact or not was irrelevant to the preliminary issue the Recorder had to determine. This would be a matter going at most to issues on breach of duty and causation to be determined at the trial on liability once the preliminary issue had been determined in favour of the imposition of a duty of care. For example, to the question as to what the police would have discovered had they arrived at the house sooner.

For all these reasons I reject the first ground of this appeal.

I have set out the competing submissions on what as a matter of law is required to be established if the core principle were not to apply here but rather the recognised exception for the imposition of a duty of care on the police by reason of an assumption of responsibility for the welfare of the person to whom the duty is alleged to be owed, in this case the Deceased.

In my judgment the Recorder did not go wrong in law in holding that on the specific facts as he had found them to be, that Appellant through his control room in response to the 999 call made by the Mother, had assumed responsibility for the welfare of the Deceased to give rise to a sufficiently close relationship of proximity between the Appellant and the Deceased, to give rise to a duty of care owed to the Deceased. There was no argument raised before the Recorder or myself that there was no foreseeability of injury to the Deceased if the police carelessly failed to give effect to the assurances they had given as found by the Recorder (see the Judgment of the Recorder at paragraph 9).

Notwithstanding the observations of the Court of Appeal in M, heavily relied on by Mr Johnson, I consider there was on the specific facts of this case which were very different from those in M, sufficient reliance on the assurances given, to bring this case within the ‘assumption of responsibility’ exception, notwithstanding the assurances were given to her Mother rather than to the Deceased herself and notwithstanding the reliance was by the Mother rather than the Deceased. The critical facts in this case in my judgement was, as the Recorder found, that the Deceased – on the basis of that which was being reported to them – was obviously a vulnerable individual in need of welfare assistance which the Appellant was offering to provide, and in my judgment it should not matter to the imposition of a duty of care owed to the Deceased, that that assistance was sought not by the Deceased directly but by her Mother on her behalf or that the assurances were given by the Appellant not to the Deceased directly but to the person who it was known was seeking assistance on her behalf. The critical fact was that the Appellant through his call handler well knew that the Mother was calling behalf of her daughter who was in no position to make the call for assistance directly herself. I agree with Mr Daniels and the Recorder that the present facts are broadly analogous to those in Kent, where the assurance was given to the Doctor rather than the patient directly and where the reliance was that of the doctor rather than the patient – save for one particular distinction.

The distinction of course is that in Kent the call was made to the ambulance service rather than the police. The critical issue is whether on the facts of this case this is a distinction which makes all the difference between the imposition of a duty of care owed by one emergency service (the ambulance service) to the patient in Kent and the non-imposition of a duty of care on a different emergency service (the police) in this case to the Deceased.

In my judgment is should not and the law does not require it to be so. I agree with the legal analysis by the Recorder in his judgment and in the submissions of Mr Daniels. The critical issue was whether there was sufficient proximity of relationship between the Appellant and the Deceased on an extended Hedley Byrne basis. The authorities do not however in my judgment establish an inflexible approach to how that extended Hedley Byrne principle should be applied. Despite Mr Johnson’s understandable submission that the facts of White v Jones were far removed from the present and the holding of a duty of care on the solicitor to the intended beneficiaries was founded on the finding of a special relationship between them (designed to fill the lacuna in the law identified by Lord Goff at 259H, that if such a duty was not recognised the only person who might have a valid claim (the testator) had suffered no loss and the only person who has suffered a loss, i.e. the disappointed beneficiary, had no claim), the judgments in the House of Lords are illustrative of a refusal to accept that reliance by the claimant in the strict Hedley Bryne sense is always essential for the imposition of a duty of care under the extended Hedley Bryne principle, once the facts of the case move away from negligent/careless misstatement (where reliance and foreseeable reliance by the claimant is necessary to found damage and foreseeability of damage) to one of negligent /careless action or inaction . I have already set out the observations of Lord Browne-Wilkinson at 272-G (see paragraph 31 above) to which might be added those of Lord Mustill at 228B cited to me by Mr Daniels:

More crucially is the factor in this case that the police, on the facts found by the Recorder, in giving the assurances they did, were focussed on a particular individual and a particular individual’s welfare. They were not purporting to be performing their public duty directed at investigation or prevention of crime (albeit it might be said they were in relation to the protection of life). There is force in my judgment that, properly analysed, on the facts as found by the Recorder, the Appellant was in effect agreeing to perform the same function as the ambulance service in coming to the aid of someone reported to be in extremis – in need of welfare assistance – specifically in agreeing to go around to check on that individual and to arrange for her transfer to hospital if necessary. In these circumstances the fact it was the police who agreed to perform this function rather than some other emergency service should not in my judgment deprive the person in need of a private law remedy in tort, if the facts otherwise support a finding of an assumption of responsibility towards her. It would, in my judgment, be an affront to the principles underlying the common law (cf Lord Nicholls in Brooks at [5]) if a duty of care would be owed if the assurances had been given directly to the Deceased but not if they were given to someone calling on her behalf, or if the call had been made directly to the ambulance service rather than the police (cf Lord Keith in Brooks at 1498). I agree with Mr Daniels that these facts are not covered by the core Hill principle protecting the police in their carrying out their public duty in the investigation and prevention of crime. On these facts there was no conflict between the interests of the public at large and the interests of the particular individual – the Deceased. What the police were agreeing to do was focussed solely on the interests of the individual. As I have already indicated, it is established on authority that if there has been an assumption of responsibility, the public policy considerations underlying the core principle do not apply (see again Lord Steyn in Brooks at paragraph 22 and 29).

I do not accept that in finding an assumption of responsibility the Recorder was wrongly marginalising the Hedley Byrne principles. He was patently mindful of the line of authority concerning assumption of responsibility in the context of actions against the police. For the reasons I have already given (paragraphs 15 to 20 above) he did not in fact, in my judgment, found his decision on anything other than a finding of assumption of responsibility albeit there are further passages in his judgment where it might be thought he unnecessarily had regard to the finding of a ‘special relationship’ in White and Jones, and to the Caparo principles. He patently had regard to the requirement to find an assumption of responsibility based on assurance and detrimental reliance. The issue raised is whether he was entitled to find the assurances given to the Mother and reliance by the Mother in leaving it thereafter to the police, in particular as regards getting her daughter to hospital if necessary, as she had been told, was sufficient to impose on the police a duty of care for the welfare of her daughter, owed to the daughter. For the reasons I have already set out, I do not consider the authorities relied on by Mr Johnson negate such a duty in the circumstances of this case where the Mother was obviously calling on behalf of her daughter who was in no position to make the call herself. I agree with the Recorder that the decision in this case is fact specific.

For all these reasons I reject the second ground of appeal.

Nor can I accept that the decision of the Recorder was wrong because he wrongly failed to distinguish between a duty of care to protect a person from an external threat and one to protect a person from their own actions (in this case self-inflicted harm through the taking of an overdose). As I have indicated, the submission of Mr Johnson was that the autonomy of the Deceased to choose self-harm was in conflict with any duty to prevent such conduct and only if there was some relevant prior relationship between the police and the person giving rise to a duty to look after their wellbeing, such as that of custodian and detainee, which was not the case here, that a duty to protect from self harm could arise.

It true that in part the Recorder rejected this argument on the grounds he was not able to characterise a suicide as representing the manifestation of the personal choice of an individual to take her own life observing that since the passing of the Suicide Act 1961 it had been recognised that suicide was not a simple process. The Recorder was understandably reflecting an approach which recognises that self harm is not always a matter of personal choice flowing from a rational mind, as distinct from a matter flowing from stress or mental illness.

But his further basis for its rejection, was his conclusion on the evidence that as in Kent the Mother and the Deceased had a mutual interest in getting the emergency services to the house, the Mother having reported that her daughter had contacted social services to get help and wanted to make contact with that agency with the Mother at one point (transcript page 6) saying ‘it’s her that is asking for help’.

In my judgment the Recorder was correct in his approach on this issue. I do not accept that Reeves is prescriptive in defining the circumstances in which a duty of care to protect from self harm may arise, although I accept that on the evidence the police must have assumed a responsibility to provide such protection. Vellino is not authority for the proposition that there can never be such an assumption of responsibility to those not detained. The present facts are very different from Vellino where it was held there was no such duty of care when an officer was faced with someone who had escaped from arrest and no longer under their control, who was about to jump from a height to make good his escape. There was no basis on those facts for a finding of assumption of responsibility.

The present facts as found by the Recorder were very different. On the Recorder’s findings, the Appellant had accepted a responsibility for the Deceased’s welfare having been told in effect that she represented a risk to her own safety due to her mental state (she’s ‘at the end of her tether’). As Mr Daniels submitted, on the Recorder’s findings the Appellant had accepted such responsibility for her in circumstances where the intervention of another agency may have prevented her death. I agree with Mr Daniels that in such circumstances it was not necessary for the Appellant to have detained the Deceased – for example under the Mental Health Act – for a duty of care to arise. The actions and words of the call handler were sufficient to affix the Appellant with responsibility for the Deceased’s safety notwithstanding the threat was from herself – and this was particularly so where the Mother was being told that she need do no more.

For all these reasons I reject the third ground of appeal.

For all these reasons I dismiss this Appeal. The Recorder was not wrong in deciding that by the time the 999 call had concluded a duty of care for her welfare was owed by the Appellant to the Deceased.