My Lord our third submission in law is that no duty oI care is owed to Mr.

Arthur by the
ChieI Constable through application oI the common law oI delict not because oI public
policy. The 'blanket immunity once granted to the police Iorce has thankIully been
removed by the ruling in Osman v United Kingdom and is thereIore not the reason on
which this appeal should be dismissed. Following the judgement oI Gibson v Orr in how
to establish whether a duty oI care is owed in this personal injury claim, we apply the
three-Iold test established in Caparo Industries plc v Dickman |1990| 2 AC 605 (pg. 618
Lord Bridge oI Harwich) which is an expansion oI the 'neighbourhood principle:
Ioreseeability oI harm, appropriate proximity, and whether it is Iair, just and reasonable
to impose a duty oI care as used by the Lord Ordinary in Gibson v Orr at paragraph 32.

There is a Ioreseeable harm to the pursuer due to the malIunctioning traIIic lights that we
do concede. Yet there is a lack oI proximity between the pursuer and deIender concerning
the pursuer`s third plea in law. Mr. Arthur`s previous complaints concerning the
malIunctioning traIIic lights to not constitute the 'special relationship mentioned in
Gibson v Orr at page 428 he 'Where what was complained oI was an omission, it was
necessary, in order to establish suIIicient proximity, that there is some additional Iactor
such as a pre-existing relationship. Such examples were given as those who were in
police custody or those whom the police have taken responsibility Ior, neither oI which
apply to Mr. Arthur. Also when the previous complaints were made by Mr. Arthur they
were in respect oI all road users, not Mr. Arthur speciIically. It was Iound in Hill v ChieI
Constable oI West Yorkshire that this situation did not amount to a special relationship at
pg. 62 oI Lord Keith oI Kinkel`s judgment: 'Miss Hill cannot Ior this purpose be
regarded as a person at special risk simply because she was young and Iemale. Where the
class oI potential victims oI a particular habitual criminal is a large one the precise size oI
it cannot in principle aIIect the issue. All householders are potential victims oI a habitual
burglar, and all Iemales those oI a habitual rapist. The conclusion must be that although
there existed reasonable Ioreseeability oI likely harm to such as Miss Hill iI SutcliIIe
were not identiIied and apprehended, there is absent Irom the case any such ingredient or
characteristic as led to the liability oI the Home OIIice in the Dorset Yacht case. Nor is
there present any additional characteristic such as might make up the deIiciency. The
circumstances oI the case are thereIore not capable oI establishing a duty oI care owed
towards Miss Hill by the West Yorkshire Police. Applying this same principle to the
present case, as the traIIic lights were not Iixed there was a large number oI people at risk,
i.e. all road users, but not Mr. Arthur speciIically and thereIore, no duty oI care is owed.

My learned Iriends have also made reIerence to the judgment in Osman v United
Kingdom and the abolishment oI the blanket immunity supposedly granted by the Hill v
ChieI Constable oI West Yorkshire ruling. The deIendant does not claim immunity
through public policy, it is suIIicient in this case to apply the common law to show that
there is not a duty oI care owed to Mr. Arthur.


At page 316, paragraph 151 oI the judgement it is stated that 'the applicants, unlike the
plaintiII Hill , had complied with the proximity test, a threshold requirement which is in
itselI suIIiciently rigid to narrow considerably the number oI negligence cases against the
police which can proceed to trial. Furthermore, the applicants' case involved the alleged
Iailure to protect the liIe oI a child and their view that that Iailure was the result oI a
catalogue oI acts and omissions which amounted to grave negligence as opposed to minor
acts oI incompetence. The applicants also claimed that the police had assumed
responsibility Ior their saIety. Finally, the harm sustained was oI the most serious
nature.

Two points stem Irom this particular extract: Iirstly the special relationship is established
because the Police knew that there were speciIic targets that could be identiIied, the
Osman Iamily and Mr. Perkins. Mr. Arthur in this case is not speciIically targeted by the
malIunctioning traIIics lights as it is a technical error and thereIore is under no direct
threat which the police could combat. The police also did not assume responsibility Ior
the saIety oI Mr. Arthur personally which would oI course create a duty oI care. The
other point is that the police were made aware oI the ongoing situation and that Paget-
Lewis had sought psychiatric help and was obsessed with Ahmet Osman. In this case, the
malIunction oI the traIIic lights cannot be countered by the police and they had not, as in
the Osman v United Kingdom case, been given weeks to intercept the problem. HalI an
hour is a relatively short time considering that the malIunction was not reported by a 999
emergency call and certainly not enough time Ior a 'catalogue oI acts and omissions.

Furthermore, suIIicient proximity is not created between the deIender and pursuer as,
Iollowing the judgment oI Gibson v Orr; the police constables would have had to take
control oI the scene beIore a duty oI care could be owed to road users.

This point is clearly expressed by Lord Hamilton throughout his judgement in Gibson v
Orr at pg. 425 ('oI which the police oIIicers had taken charge. By doing so, the hazard
being at a particular place and at a particular time, the oIIicers brought themselves within
a suIIiciently proximate relationship to persons using that public road and approaching
the bridge. Police oIIicers were not mere by-standers.) , pg. 433 (where he states 'Once
a constable has, in exercise oI such a Iunction, taken charge oI a particular road traIIic
situation which, without control by him, presents a grave and immediate risk oI death or
serious injury to road users likely to be aIIected by the particular hazard, it would seem,
at least on Iirst impression, consistent with the underlying principle oI neighbourhood Ior
the law to regard him as being in such a relationship with such road users as to satisIy the
requisite element oI proximity) and again at pg. 435 where he states that: 'II police
constables, having such a Iunction, in Iurtherance oI it take control oI a hazard on a
public road they are, in my view, in a suIIiciently proximate relationship with road users
likely to be immediately and directly aIIected by that hazard as is suIIicient Ior the
purposes oI the existence oI a duty oI care to such road users. Due to limited resources
and lack oI inIormation at hand, the ChieI Constable was unable to immediately dispatch
any on point constable to the scene oI the malIunction to direct traIIic. Having already
sent the on duty police oIIicers to the scene oI the break in at Mr. Arthur`s shop, the
ChieI Constables resources were already strained. Had police oIIicers arrived at the
traIIic lights and Iailed to ensure saIe driving conditions then a duty oI care would be
owed to road users. This oI course did not transpire on the night in question.

This is a case oI 'pure omission on behalI oI the ChieI Constable and not one oI
negligence. The ChieI Constable did not cause the malIunction oI the traIIic lights nor
did he negligently make the situation worse by attending the scene and then Iailing to
make the area saIe Ior road users. No responsibility was taken up by the ChieI Constable
or any oI his oIIicers to ensure saIe driving conditions at the traIIic lights. The ChieI
Constable, and indeed the Strathclyde Police service cannot be expect to investigate
every incident immediately, especially those which are not an emergency. It would be
unIair, unjust and unreasonable to impose a duty oI care upon the ChieI Constable to
protect and guard an area that he was not even aware was causing a potential risk. To
compare this case again with Gibson v Orr, malIunctioning traIIic lights do not stop road
users Irom travelling through the crossroads and is no way comparable to a collapsed
bridge which is an obvious lethal danger.

The police should not be liable Ior accidents that occur because they were unable to
attend a scene immediately due to lack oI manpower or lack oI inIormation provided by
the relevant authority. The reasonable person could not expect a police Iorce with a
limited number oI resources to be able to attend the scene oI a malIunctioning traIIic light
immediately aIter already dispatching on duty oIIicers to a theIt in the near by area. In the
early hours oI the morning when there is very little traIIic on the roads, a theIt Irom
private property, which the ChieI Constable responded very quickly to, should have
priority over malIunctioning traIIic lights. The ChieI Constable delivered the expected
standard oI care oI the police Iorce when he sent police oIIicers immediately to the scene
oI the emergency call. This was not the case in respect oI the traIIic light malIunction.

It is not even made clear as to whether the ChieI Constable was made aware oI the
malIunction on this occasion and there can certainly be no duty oI care owed when
neither the ChieI Constable nor any oI his oIIicers were made aware oI the situation. In
Gibson v Orr the police were alerted to the collapse oI the bridge by the Iire brigade, no
inIormation appears to have been passed to the ChieI Constable in this case. Had there
been an emergency call about the traIIic lights the ChieI Constable would have been able
to respond within a reasonable time. What has happened in this case is not an act oI an
unknown criminal (Like in Hill v ChieI Constable oI West Yorkshire) but a technical
malIunction that could not be anticipated by the ChieI Constable or any oI his oIIicers.
Even though there were previous complaints about these speciIic traIIic lights, a speciIic
time oI malIunction could not have been predicted.

The Lord Ordinary was indeed correct when he stated in would be against public policy,
to impose a duty oI care against the police in this particular case as they were unaware oI
any potential risks caused by the malIunction. But, with respect, he Iailed to mention that
it is indeed in accordance with the law not to impose a duty oI care upon the ChieI
Constable.

I invite your Lordship to consider the Iacts oI this case and come to the conclusion that
there is no duty oI care owed to Mr. Arthur by the ChieI Constable and that the appeal be
dismissed and all awards oI damages, both economic and personal injury, be reIused. The
ChieI Constable was, as a reasonable man would in his position, doing his job to the
expected standard oI care Irom the Police Force.
(Hill pg. 59 a chieI oIIicer oI police has a wide discretion as to the manner in which the
duty is discharged. It is Ior him to decide how available resources should be deployed,
whether particular lines oI inquiry should or should not be Iollowed and even whether or
not certain crimes should be prosecuted. It is only iI his decision upon such matters is
such as no reasonable chieI oIIicer oI police would arrive at that someone with an interest
to do so may be in a position to have recourse to judicial review)

Osman: 21 judges, including the President.
Facts: The applicants are British citizens resident in London. The first applicant, Mrs
Mulkiye Osman she is the widow of Mr Ali Osman who was shot dead by Mr Paul Paget-
Lewis. The second applicant, Ahmet Osman, is her son, born in England in 1972. He was
a former pupil of Paul Paget-Lewis at Homerton House School. Ahmet Osman was
wounded in the shooting incident which led to the death of his father.
The applicants' complaints are directed at the failure of the authorities to appreciate and
act on what they claim was a series of clear warning signs that Paul Paget-Lewis
represented a serious threat to the physical safety of Ahmet Osman and his family. There
is disagreement between the applicants and the respondent State on essential aspects of
the circumstances leading to the tragedy. The applicants have disputed in this respect the
completeness of the facts as found by the Commission.

Hill: HoL case, 5 judges.
Mother oI the victim oI the last victim oI the Peter Sutcliffe, was a lack of proximity and
well as the police being covered by their immunity to civil action.
Caparo: HoL, 5 judges
Touche Ross & co along with Caparo Industries Plc appealing against Dickman brothers
owners oI Fidelity claiming that a duty oI care was owed to them as shareholders and
non-shareholding buyers.