Who Really Cares

1
Who Really Cares?

• Jeff Zindani LLB MA, Solicitor, Forum Law
  Solicitors

2
Summary

• Health and Safety Foundations
• Common Law position
• Public Policy and Police Service
• Case Law
• Recent Cases
• Modern Duty of Care

3
Health and Safety Law Foundations

• Duty of Care to provide and Operate a safe System
  of Work at Common Law
• Health and Safety Work Act 1974-key duties based
  around duty of care
• 6 Pack Regulations based around specific duties
  of care
• Special Position of Police Service

4
Common Law Position

• Background The Courts have Long History of
  Defining the Duty of Care for Workers
• 3 Part Test House of Lords in Mc Dermid v Nash
  Dredging Ltd 1987 AC 906
• (A) Employer has a duty to exercise reasonable
  care to ensure that the system of work is safe
• (B) Provision of a safe system has 2 parts the
  devising of such a system and the operation of
  it.
• (C) Duty is Personal or Non-Delegable eg cannot
  blame a third party for non-performance
• Chief Constables Owe Same Duty of Care as other
  Employers- see White v Chief Constable of South
  Yorkshire Police 1999 2 AC 445 and deeming
  provisions of PHAS 1997.

5
Public Policy and Police Service

• Special Position of Chief Constables
• General Rule in Mc Dermid can Be Displaced if
  there are sound Public Policy Reasons for doing
  so
• Public Policy Issues balancing of interests of
  the police service and individual officers

6
Case Law

• Hughes v NUM 1991 4 ALL ER 278-allegation that
  senior officer had deployed men negligently
  during miners strike
• Senior police officers should not be generally
  be liable to their subordinates ... for on the
  spot operational decisions
• Costello v Chief Constable of Northumbria Police
  1999 ICR 752-Police woman attacked by prisoner
  whilst senior officer did nothing to help. Held
  breach of duty of care and no policy reasons for
  exclusion of liability.

7
Case Law

• Heat of the Moment Defence was discussed in
  Costello positive negligent intervention or
  particular failure or failure to follow
  instructions.
• Specific police duty to assist a fellow officer
  to avoid exposing a fellow officer to an
  unnecessary risk of injury
• Mullaney v Chief Constable of West Midlands
  Police 2001 EWCR Court of Appeal -probationary
  officer who was left on his own and badly beaten.
  Injury would have been avoided if safe system had
  been operated

8
There was no problem of resources. A safe system
was devised. In order to operate that system
there was no need for any decision to be made in
the heat of the moment. One of the purposes of
the system was to ensure, so far as reasonably
practicable, that assistance would be provided
for one of the very few officers engaged on this
limited operation. In all the circumstances I am
of the firm opinion that on the facts of this
case the public interest requires the imposition
of the duty not its exclusion Mullaney v Chief
Constable of West Midlands Police
9
Recent Cases

• Lloyd v Ministry of Justice 2007
• Prisoner officer badly assaulted by prisoner who
  had a history of violence against officers.
• Held prisoners history sheet should have
  contained this information and if it had then
  injury could have been avoided.

10
Modern Duty of Care-modern hazards

• Duty of Care and Standard of Care Merge!
• Resources Defence?
• Information and Risk Assessments
• Dynamic Risk Assessments and Heat of the Moment
  Decisions
• Public Policy of Maintaining High Standards of
  health and safety in the police service
• Duty of Care and Discipline issues
• Compensation system and No Win No Fee
• Need for Change in Duty of Care Concept
  Reflecting Modern Police Hazards

11
QUESTIONS