Wartaj Seafood Products Ltd v Ministry of Home Affairs [2000] FJLawRp 51; [2000] 1 FLR 200 (8 September 2000)

[2000] 1 FLR 200

IN THE HIGH COURT OF FIJI

WARTAJ SEAFOOD PRODUCTS LTD.

v

MINISTRY OF HOME AFFAIRS & ATTORNEY GENERAL

High Court Civil Jurisdiction
Fatiaki, J
8 September 2000.
HBC0129.2000

Striking out - no reasonable cause of action - Order 18 r 18(1)(a) of High Court Rules 1998 - whether police can be held liable for negligence to individual members of the public - criteria for the imposition of a duty of care - whether an undertaking to do a duty establishes a relationship of proximity.

The plaintiff issued proceedings on 24 March 2000 against the defendants seeking damages for the loss of its vessel which was grounded in shallow waters in Levuka. The police were informed of the whereabouts and state of the vessel and requested the police to keep an eye on the vessel to which the police agreed. The vessel was systematically stripped by unknown individuals on 22nd September 1998. The Plaintiff alleged that the vessel had no salvageable value as a result of the police's negligence in that they failed to stop the ransacking of the vessel despite assurances that they would.

HELD - (1) A duty of care cannot be imposed in the given circumstances where there is no contractual obligation between the parties.

(2) Public policy factors prevented the imposition of a duty of care on the police against individual members of the public.

(3) An undertaking, even if voluntarily given by the police does not raise a special relationship of proximity.

The plaintiff's Statement of Claim as pleaded, discloses no reasonably arguable cause of action against the defendants and is dismissed.

Cases referred to in judgment:

appl Lonrho PLC v Fayed (No. 2) (1992) 1 WLR
foll Lonrho v Tebbitt (1991) 4 All ER 973
cons Hill v Chief Constable of West Yorkshire (1998) 2 All ER 238
ref Caparo Industries PLC v Dickman [1990] UKHL 2; (1990) 1 All ER 568
cons Clough v Bussan (1990) 1 All ER 431
cons Alexandrou v Oxford (1993) 4 All ER 328
cons Osman v Ferguson [1992] EWCA Civ 8; (1993) 4 All ER 344
cons Ancell v McDermott [1993] EWCA Civ 20; (1993) 4 All ER 355
cons Chief Constable of Northumbria v Costello (1999) 11 Admin LR 81
ref R. v Metropolitan Police Commissioner ex-p Blackburn (1968) 1 All ER 763

Gavin O'Driscoll for the plaintiff
Kini T. Keteca for the defendants

8 September, 2000.

JUDGMENT

Fatiaki, J

On the 24th March 2000 the plaintiff issued proceedings against the defendants seeking special and general damages for the loss of its vessel which had been towed to Levuka harbour on 21st September 1998 where it was grounded in shallow waters. The Levuka police were informed of the whereabouts and state of the vessel and requested to 'keep an eye on the said vessel to which they agreed'.

It is common ground that on the 22nd September 1998 the vessel was systematically stripped by unknown individuals leaving 'only the rudimentary structure, the engines and the freezer intact'. More particularly the plaintiff's claim is pleaded as follows:

'20. THAT the said vessel was supposed to be under the watchful eye of the police in Levuka but despite that the same had no salvageable value at all and as a result of the police's negligence the said vessel was lost.

Particulars of Negligence

Failing to stop the ransacking of the vessel despite assurances that they would.'

The defendants now apply to strike out the plaintiff's Statement of Claim on the ground that it discloses no reasonable cause of action. More particularly, defence counsel argued that the defendants 'did not owe a duty of care to the plaintiff and, even if they did, the loss of the plaintiff's vessel was not due to the defendant's negligence but was the direct result of the combined effects of the sea and the elements.'

The correct approach to the defendants' application is succinctly summarised in the judgment of Millett J. at first instance in Lonrho PLC v. Fayed (No. 2) (1992) 1 WLR 1 where he said:

'The approach of the court on an application to strike out a Statement of Claim under RSC Ord. 18 r.19 (1)(a), on the ground that it discloses no reasonable cause of action, is to assume the truth of the allegations contained in the Statement of Claim; and evidence to the contrary is inadmissible... In such a case the court's function is limited to a scrutiny of the Statement of Claim. It tests the particulars which have been given of each averment to see whether they support it, and it examines the averments to see whether they are sufficient to establish the cause of action.'

To this may be added the words of Browne-Wilkinson V.C. in Lonrho v. Tebbitt (1991) 4 All ER 973 where his lordship said at p.979:

'A claim should only be struck out in a plain and obvious case. The difficulty arises where, as in the present case, a claim to strike out depends upon the decision of one or more difficult points of law. In such a case, the judge should normally refuse to entertain such a claim to strike. But, if in a particular case the judge is satisfied that the decision of the point of law at that stage will either avoid the necessity for trial altogether ..., he can properly determine such difficult point of law on the striking-out application.'

Guided by the above principles I turn to consider the plaintiff's claim which is plainly based on common law negligence.

There can be little doubt that an unguarded shipwreck in shallow waters and within easy reach of the shore is exposed to the risk of being vandalised and/ or of being stripped or looted by criminal opportunists and, as such, any loss or damage thereby caused might be said to be foreseeable to someone who was aware of the existence of the shipwreck.

But as was said by Lord Keith in Hill v. Chief Constable of West Yorkshire [1987] UKHL 12; (1988) 2 All ER 238 at p.241:

'... 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 of the case must be carefully considered and analysed in order to ascertain whether such an ingredient is present.'

Earlier his lordship said (at p.240):

'By common law (and statute) police officers owe to the general public a duty to enforce the criminal law. see: R. v. Metropolitan Police Commissioner ex-p Blackburn (1968) 1 All ER 763. That duty can be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed, and ever whether or not certain crimes should be prosecuted ... So the common law, while laying on chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public.'

Nevertheless plaintiff's counsel vigorously submitted that in this case there was the 'requisite proximity of relationship' between the plaintiff and the Levuka police who had not only been specifically informed of the condition and whereabouts of the plaintiff's vessel but they had also 'agreed to keep an eye on it' (whatever that may mean).

Additionally, if the averments in the Statement of Claim are accepted as true (as I am obliged to in this application), then the Levuka Police were informed of the stripping of the plaintiff's vessel whilst it was actually occurring. The question is - do these factors collectively give rise to a duty of care on the part of the Levuka police to ensure that no damage is caused to the plaintiff's vessel?

In deciding this fundamental issue I remind myself that:

'the three criteria for the imposition of a duty of care (are) foreseeability of damage, proximity of relationship, and the reasonableness or otherwise of imposing a duty (and further). In determining whether there was a relationship of proximity between the parties, the court, guided by situations in which the existence, scope and limits of a duty of care had previously been held to exist rather than by a single general principle, would determine whether the particular damage suffered was the kind of damage which the defendant was under a duty to prevent and whether there were circumstances from which the court could pragmatically conclude that a duty of care existed.'

[see: the headnote in Caparo Industries P/c v. Dickman [1990] UKHL 2; (1990) 1 All ER 568].

Even accepting all of the plaintiff's averments, I am constrained by the weight of authority to reject the imposition of a duty of care on the Levuka police in the given circumstances where no contractual obligation has been pleaded in the plaintiff's Statement of Claim.

I begin my consideration of the authorities, with the leading case of Hill v. Chief Constable of West Yorkshire [1987] UKHL 12; (1988) 2 All ER 238 where the defendant was sued by the plaintiff for his negligence in failing to apprehend her daughter's murderer before she was murdered and the House of Lords in rejecting the plaintiff's claim in negligence

'Held: ... the police did not owe a general duty of care to individual members of the public to identify and apprehend an unknown criminal, even though it was reasonably foreseeable that harm was likely to be caused to a member of the public ... furthermore, even if such a duty did exist public policy required that the police should not be liable in damages for negligence.'

The next decision in chronological order is the judgment of Kennedy J. at first instance in Clough v. Bussan (1990) 1 All ER 431 where it was alleged that the police (as third parties) had contributed to a car accident by their failure to do anything about traffic lights which they knew were out of order and His Honour in striking out the claim

'Held: ... although the police were under a duty to preserve law and order and to protect life and property, the fact that the station received information that traffic lights at a particular junction were malfunctioning was not sufficient to impose on the police a duty of care to every motorist who might thereafter use the junction ...'

Then there are the trilogy of cases reported in (1993) 4 All ER which followed and applied the decision in Hill's case (op.cit), beginning with Alexandrou v. Oxford (ibid at p.328) where the plaintiff alleged that the police officers who attended a burglar alarm warning at the plaintiff's business premises and which was simultaneously activated at the officer's police station, were negligent in taking their time in arriving at the scene and, in wrongly assuming, when at the scene, that the alarm was a false alarm and burglars got away with a large quantity of items.

Slade L.J. in rejecting the plaintiff's claim that the direct connection of his shop's burglar alarm system to the police station was sufficient to establish the requisite proximity of relationship between himself and the police such as to raise a duty of care said, (at p.344):

'As things are I cannot see that the duty in tort (if any) owed by the police to this plaintiff can have been any greater than the duty in tort (if any) owed by them to any ordinary member of the public who by means of a '999' call warns them that a crime is being or is about to be committed against his person or property. By common law police officers owe to the general public a duty to enforce the criminal law ... In my judgment, however, on public policy grounds, ..., it is unthinkable that the police should be exposed to potential actions for negligence at the suit of every disappointed or dissatisfied maker of a 999 call.'

Next is the decision of the Court of Appeal in Osman v. Ferguson (ibid at p.344) where a majority of the Court of Appeal whilst accepting that there was an arguable case that a very close degree of proximity amounting to a special relationship existed between the plaintiffs family and the investigating police officers, nevertheless, the Court unanimously dismissed the plaintiff's claim as disclosing no reasonable cause of action on the basis that (at p.345):

'... the existence of a general duty of care on the police to suppress crime did not carry with it liability to individuals for damage caused to them by criminals whom the police had failed to apprehend when it was possible to do so. It would be against public policy to impose such a duty as it would not promote the observance of a higher standard of care by the police and would result in the significant diversion of police resources from the investigation and suppression of crime.'

The final case in the trilogy is Ancell v. McDermott (ibid at p.355) a traffic hazard case, where the police were aware of and did nothing to warn motorists of a spillage of diesel fuel on a road which led to a fatal collision involving the plaintiff's car, Beldam L.J. in dismissing the plaintiff's claim said (at p.365):

'... it is exceptional to find in the law a duty to control another's actions to prevent harm to strangers and where they are found they arise from special relationships. When it is contended that such special relationship arises out of duties carried out in the performance of a public office, the court must have regard to the purpose and scope of the public duties, whether they are intended to benefit a particular section of the public e.g. investors or depositors, and whether such persons could reasonably place reliance on the fulfilment of the duties.

Secondly, such a duty of care would impose upon the police force potential liability of almost unlimited scope. Not only would the class of persons to whom the duty was owed be extensive, but the activities of police officers which might give rise to the existence of such a duty would be widespread.'

and later at p.366 his lordship said:

'The diversion of police resources and manpower if such a duty were held to exist would, in my judgment, extensively hamper the performance of ordinary police duties and create a formidable diversion of police manpower.'

Finally and as recently as December 1998, in Chief Constable of Northumbria v Costello (1999) 11 Admin LR 81 (looseleaf) where the appellant was held vicariously liable in negligence at the suit of a woman police constable for injuries sustained by her at the hands of a violent prisoner in a police cell and where a police inspector standing nearby failed to come to her assistance. May L.J. after an extensive analysis of a range of decided cases relating to police officers and other public services including the fire brigade and the coast guard said (at p.94):

'I now summarise relevant strands drawn from the cases. For public policy reasons, the police are under no general duty of care to members of the public for their activities in the investigation and suppression of crime. But this is not an absolute blanket immunity and circumstances may exceptionally arise when police assume a responsibility, giving rise to a duty of care to a particular member of the public. The public policy considerations which prevailed in Hill may not always be the only relevant public policy considerations.

Neither the police nor other public rescue services are under any general obligation, giving rise to a duty of care, to respond to emergency calls, (Alexandrou), nor, if they do respond, are they to be held liable for want of care in any attempt to prevent crime or effect a rescue.

For public policy reasons, a senior police officer is not generally to be held liable to a subordinate for operational decisions taken in the heat of the moment and when resources may be inadequate to cover all possibilities. But a senior police officer may be liable to a subordinate for positive negligent intervention ... and for particular failure ... which results in injury.'

and later (at p.95) his lordship continued:

'If a police officer tries to protect a member of the public from attack but fails to prevent injury to the member of the public, there should in my view generally be no liability in tort on the police officer for public policy reasons.'

and finally (at p.96) his lordship said:

'An ingredient of my conclusion (to hold the plaintiff liable) is the close relationship between Inspector Bill and the plaintiff. They were police colleagues and he was in close attendance for the specific purpose of coming to her help if she needed help. It would not follow from this analysis that I would also have found a duty of care owed by a police officer to a member of the public in otherwise similar circumstances. The balance of public policy could depending on the circumstances, then be different.'

Hurst L.J. for his part whilst agreeing with the judgment of May L.J. '... in the quite exceptional circumstances of the case ...' was nevertheless sufficiently concerned to add in his judgment (at p.96): '... our decision should not be interpreted in any shape or form as undermining the general principles laid down in Hill's case.'

In the present case, in addition to the numerous policy considerations referred to in the above-mentioned decisions, it must be said, that it lay within the plaintiff's means and resources to hire a private security firm to guard its vessel against the possibility of ransackers and looters but it did not do so for reasons best known to itself.

To impose a duty of care in such circumstances would tantamount to making police officers personal security providers and even insurers against foreseeable loss, and all this, on a mere phone call. True, the plaintiff claims that the duty was voluntarily assumed but, in my opinion such an undertaking, even if voluntarily assumed or given, does not raise a special relationship of proximity, rather more, it is necessarily inherent in the duties that a police officer owes to the general public at large. This must be a further factor against imposing a duty in the given circumstances and I decline to do so.

For the foregoing reasons this application succeeds, the plaintiff's Statement of Claim as pleaded, discloses no reasonably arguable cause of action against the defendants and is accordingly dismissed with costs which are summarily fixed at $250.00.

Application allowed. Action dismissed.

Mereseini R Vuniwaqa