2. Should the rule in Hill v Chief Constable of West Yorkshire [1989] be abolished? Discuss.

Introduction:

• Whether to trust a police officer or not…
• Introductory sentence

It was claimed on behalf of a victim of the serial killer, the ‘Yorkshire Ripper’, that the police had owed her a duty of care and that their failure to conduct criminal investigations adequately had been the cause of her death. HoL rejected both claims.

Hill did not confer a general immunity upon the police, only that a duty of care would not arise without special circumstances, such as where the failure to apprehend a criminal creates an exceptional added risk.

• Negligence actions against public bodies can bear issues, as the defendants most often are operating under statutory restrictions.
• Intro to cases used

P1:

• Hill immunity for police officers allows them to focus on the primary duty of their profession.
• The main role of a police officer is to investigate and suppress crime.
• If the police were to owe a general duty of care to victims and witnesses in respect of their activities when investigating suspected crimes, it would ‘lead to an unduly defensive approach in combating crime’ as established in Brooks v Police Commissioner of the Metropolis.
• In Van Colle v Chief Constable of the Hertfordshire Police, the son of the claimants had been shot dead before he was due to give evidence in a criminal trial. He had previously been intimidated by the accused which the police were aware of, but leading up to the murder the police did not know of a ‘real and immediate risk’ to his life. Therefore no obligation arose to take reasonable steps to prevent the killing. If the police were to invest the time and resources in protecting victims and witnesses, it would be detrimental to their ordinary duty of serving the public.  
• For these reasons, Hill immunity allows police officers to focus on serving the public without being restricted in their actions to serve the public.

P2:

• If the Hill immunity applies to the police, should it not also apply to every public body?
• The Hill immunity for police only applies when controlling crime, and they are to owe a duty when they directly cause the damage as a result of a positive act.
• There is also a contrast of the duty of care between the fire brigade and the ambulance service. A duty of care can be established for the ambulance service. A duty of care is established once the 999 call is accepted. An example of this is in Kent v Griffiths where the ambulance arrived 40 minutes after the call was made with no substantial reason for their delay. While waiting for the ambulance the claimant suffered more injuries which could have been prevented if the ambulance would have arrived within a reasonable time. The ambulance service was therefore held to have breached their duty to care and had acted negligently. In relation to the fire brigade however, they could be held to have a duty of care when their acts result in increased damage, such as in Capital and Counties v Hampshire CC where they turned off the sprinkler system which led to the fire getting out of control.
• It is evident that public bodies have strong differences in when to adopt a duty to care, although the primary duty of all is to serve the public. Therefore, it is not just to impose a duty of care on one body while another is protected by the immunity principle.

P3:

• The Caparo test requires that the harm must be reasonably foreseeable, that the parties must be in a relationship of proximity, and that it must be fair, just and reasonable to impose a duty upon the defendant.
• In Robinson v Chief Constable of West Yorkshire Police, Lord Reed held that this was not the correct approach to determine whether a duty of care exists, but rather the established authorities must be considered when making this decision. Previous to the judgment in Robinson it became clear that under the third part of the Caparo test the effect of Hill had been for courts to decline that the police owed a duty of care to private individuals in the position of Mrs Robinson. In the judgment of the case it was strikingly established that this should not be the case and disregarded the Hill immunity.
• The major issue with police immunity is that “it is too broad-brush” as Claire McIvor stated in her article in the Cambridge Law Journal. To completely abolish the idea of the Hill immunity would lead to negative outcomes, such as opening flood gates for negligence claims against the police as well as defensive policing to avoid claims against the police force. It would be necessary to reassess the immunity principle and provide certain guidelines on what kind of claims can be put forward, possibly by the means of combining the decision in Robinson and the Caparo test to provide a basis for future cases.

Conclusion:

• The Hill immunity in its essence comes with more advantages than disadvantages. It is beneficial in some circumstances in order to eliminate defensive policing and prevent floodgates, however as common law changes, so do the principles. Therefore, it should be replaced with a more modern principles in order to be brought into the 21st century. It may possibly extend to other public bodies that also have a primary duty of serving the public.
• Necessary to be relevant to the context of the instant case, especially since all cases are different and one immunity can not be assumed to cover all cases in the same way.