Case: Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550
Outcome: distinguished
I will return below to whether such an exclusionary principle based on public policy accurately reflects the law in this country; see Thompson v Vincent at [153]-[154]; or whether the "principle" does no more than represent the usual or predictable, but not invariable, consequence of the evaluation of whether the relationship between the police and an individual in a given instance imports a duty of care in the context of a police investigation: cf Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 at [149] . Before so doing, it is important to emphasise that police officers are not as such and in all circumstances immune from the law of negligence for acts or omissions in the course of official duty that occasion foreseeable harm. The contrary is clearly the case, as a large case law in common law jurisdictions, including England, attests: Zalewski v Turcarolo ; Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550; see also Grubb (ed), The Law of Tort , "The Police" 16.73 ff (2002); Linden, Canadian Tort Law , 286, 625 (7 th ed 2001); Todd (ed), The Law of Torts in New Zealand , 204, 212 ff (3 rd ed, 2001); Eaton, above 90 ALR 5 th 273. 97 By way of illustration I would note that a duty of care has been assumed, or found to exist: (i) in the conduct of a high speed police motor vehicle pursuit of a suspected criminal ( Schilling v Lenton (1988) 47 SASR 88; see also Marshall v Osmond [1983] 1 QB 1034; 57 Am Jur 2d, above SS439); (ii) where a superior officer failed to go to the assistance of another officer whom he knew was being attacked close by and for whom he had a responsibility ( Costello v Chief Constable of the Northumbria Police , above; Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700) ; (iii) in positively provoking or acting in disregard of a real and substantial risk of harm to a person ( Zalewski v Turcarolo , above) or property ( Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242); (iv) in providing for the safety and well-being of persons in police custody ( Hall v Whatmore [1961] VR 225; Howard v Jarvis [1958] HCA 19 ; (1958) 98 CLR 177; Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35 ; [2000] 1 AC 360); (v) in relation to preserving the confidentiality of information provided by an informant identifying a criminal suspect, the disclosure of which was likely to expose the informant and her husband to a greater risk of harm at the hands of the suspect than the ordinary risk to the general public ( Swinney v Chief Constable of the Northumbria Police ); (vi) in Canada, to protect a woman who was unaware she was knowingly being used by police as "bait" to catch a serial rapist in circumstances in which the police deliberately failed to warn of the risk she faced for fear of compromising their investigation though knowing that the rapist would attack again and cause irreparable harm to his victim ( Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR 4 th 697); and (vii) in a United States jurisdiction, in delaying in responding to calls made by assault victims, the assurance that help was on its way having been given to them ( Chambers-Castanes v King County 669 P2d 451 (1983); and see Zitter, "Liability for Failure of Police Response to Emergency Call" , 39 ALR 4 th 691). 98 What is noticeable in the case law of common law countries illustrated above (including that of England) is that it is accepted both that positive dangerous behaviour by police can still attract a duty of care and that, particularly in cases of omissions to act, the police may nonetheless have, or have assumed such a particular responsibility to take care of a person as to give rise to a "special relationship" with that person which attracts a duty of care to him or her: see e.g. Brooks v Commissioner of Police at [22] and [29]; Costello v Chief Constable of the Northumbria Police esp per May LJ; in US jurisdictions the "special relationship" exception is well recognised in a range of otherwise negligence exempt areas of police activity, see e.g. Eaton, above at SS4 ; see also 57 Am Jur 2d, above, at SS410 ff. What equally is notable is the varying significance given to the particular "operational" context in which the relationship giving rise to a duty of care is said to exist. Hence the ready imposition of a duty of care to persons in police custody: Hall v Whatmore , above; and the corresponding reluctance to impose such a duty in the context of the conduct of a criminal investigation D'Orta Ekenaike v Victoria Legal Aid at [101]-[102]; see also Cran v State of New South Wales , above; or in preventing a breach of the peace: Thompson v Vincent , above. 101 It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities "in the investigation and suppression of crime": Costello's case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan . I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. However, I would respectfully suggest that more recent English authority demonstrating "reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire ... has been thought to lay down" on the immunity of police: cf Brooks v Commissioner of Police , at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see e.g. Costello ; Cowan v The Chief Constable for Avon &amp; Somerset Constabulary [2001] EWCA Civ 1699 ; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law: cf Doe , 72 DLR 4 th at 584-586.