The tort process has not proved to be effective in responding to the public’s concern about criminal violence. Those who suffer injuries as a result of such violence normally have an action in battery192against the criminal but the prospects for recovering any money are not good. The criminal may never be apprehended and, if he is apprehended and sued, it is unlikely that any judgment will be paid. The victims of criminal violence may receive some indemnification for related expenses, lost income, and pain and suffering from the criminal injuries compensation schemes but that does not provide the full compensation promised by tort law.
This has led imaginative and innovative lawyers to explore the potential liability of financially viable third parties for the criminal conduct of others. Until recently, courts have resisted the temptation to impose liability on anyone other than the criminal. He is the person primarily responsible for the criminal violence and there has been an understandable reluctance to shift any of that responsibility to someone else. Nevertheless, the expansion of negligence law, the erosion of the nonfeasance immunity, a less rigorous approach to intervening acts,
and a greater willingness to impose liability on governmental institutions has led to a legal environment that encourages and facilitates the liability of third parties who are in a position to prevent crime before it is committed and, thereby, protect the public.
The primary targets for this kind of third-party liability are law enforcement officials. There was already authority imposing liability for damage caused by offenders who escape from custody193or who are imprudently and prematurely released from custody.194In those cases, however, the offender was already in custody and the defendant was charged with responsibility for his supervision and control. The more contentious cases are those that seek to impose liability on the police for a negligent failure to solve a crime, to warn of a serial offender before the plaintiff suffers loss or to take protective measures to secure the safety of a potential victim of crime. This issue has arisen in three illustrative and contrasting cases, Hill v. Chief Constable of West Yorkshire,195Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police,196and Mooney v. British Columbia (A.G.).197The Hill case dealt with a pretrial motion seeking to dismiss a claim on the ground that the defendant owed no duty of care to the plaintiff. Jane Doe and Mooney were decisions on the merits.
In the Hill case, an action was brought by the family of Ms. Hill, the final victim of a serial murderer whose crimes spanned a five-year period. It was alleged that, if the police had exercised reasonable care in the investigation of the crimes, the offender would have been apprehended before Hill was murdered. A number of factors supported the imposition of a duty of care. It was readily foreseeable that any delay in the apprehension of the killer would pose a great threat to other young women including the plaintiff. Furthermore, the duty of care suggested was consistent with the general functions of the police, namely, the efficient investigation of crime, the timely apprehension of criminals, and the protection of the public. It would also promote the compensatory and deterrent functions of negligence law. In spite of this, the House of Lords held that the police owed no duty of care to the plaintiff to apprehend the killer in a timely and efficient manner. It held that there was insufficient proximity between the defendant and the large class of potential victims to support a duty of care and that public policy fa-
voured police immunity from liability in negligence. There was, in the Court’s view, no need for negligence law to provide a deterrent against poor policing. The best endeavours of the police could not be doubted. Furthermore, the imposition of a duty of care might lead to defensive policing, to a flood of claims, and to resources being diverted from the fight against crime to the defence of litigation. Lastly, many policing decisions are of a policy and discretionary nature dealing with the allocation of resources and the priority of investigations, which should not be second-guessed by the courts.
Jane Doe heralded a less...