Tindall and another (Appellants) v Chief Constable of Thames Valley Police (Respondent) [2024] UKSC 33, on appeal from [2022] EWCA Civ 25
Justices: Lord Hodge, Lord Briggs, Lord Leggatt, Lord Burrows and Lady Simler
The Supreme Court has affirmed that there is no duty of care, and hence no liability in negligence, for failing to confer a benefit, which includes failing to protect a person from injury, as opposed to making matters worse. This applies equally to public authorities such as the police as it does to private individuals.
Brief Summary
On 4 March 2014, Mr Kendall’s car skidded on a patch of black ice on the A413 road, causing him to lose control and roll over into a ditch. Concerned by the state of the road, after making an emergency call, he stood by the road signalling cars to slow down.
Around 20 minutes later, police officers attended the scene. They started clearing up debris from the accident and put up a “Police Slow” sign up. After warning the police about the dangerous state of the road, Mr Kendall left to visit the hospital to tend for non-life-threatening injuries he had suffered. It was alleged that, but for the arrival of the police, Mr Kendall would have continued attempts to alert road users of the danger. Having cleared the debris, and after Mr Kendall had gone to hospital, the police officers removed the “Police Slow” sign and left the scene, with the road in the same condition as it had been previously. They did so in the belief that there was no hazard and having failed to discover or inspect the sheet ice.
About an hour after the first accident, at 5.45am Mr Malcom Tindall was killed in a second accident when his car was hit by an oncoming vehicle which had skidded on the ice (the driver, Mr Bird, was also killed).
The appellant, Mr Tindall’s widow, brought a claim against the Chief Constable of Thames Valley Police, the Respondent, alleging the police’s conduct at the scene of the accident was negligent and that the Chief Constable was vicariously liable.
The primary claim was that the response of the police to an earlier accident on the same stretch of road made matters worse. Alternatively, it was argued that the case fell within one of the exceptions to the general rule that no duty of care is owed to protect a person from harm.
The chief constable applied to strike out the claim on the ground that the facts agreed or alleged did not disclose a valid claim in law or, alternatively, for summary judgment on the ground that the claim had no real prospect of success. That application failed at first instance but succeeded on an appeal to the Court of Appeal. The claimant appealed from that decision.
The Supreme Court unanimously dismissed her appeal. On the assumed facts, the police intervention did not give rise to any possible liability for making matters worse, and none of the possible exceptions to the general rule that there is no duty of care to protect a person from injury could be made out.
A more detailed account of the facts and reasoning behind the judgement is set out in the Court’s Press Summary.
Comment
In 2023 Conor Monighan, barrister at 5 Essex Court, wrote a post for UKHRB on the case of Woodcock v Chief Constable of Northamptonshire [2023] EWHC 1062 (KB). In this judgment, it will be recalled, the Divisional Court found that the police were under a positive common law duty to warn the claimant of a potential danger from her estranged partner who had stalked her and subsequently attacked and injured her. The Court found the police had assumed responsibility towards the claimant by advising her to set up a ‘protective ring’ around her property and, in the alternative, that this was a rare ‘special / exceptional’ case in which there was a positive duty to warn.
In his comment on the ruling in Woodcock, Conor reflected that “this was the first time that a higher court has found that ‘exceptional/ special circumstances’ justified the imposition of a positive, common law, duty on the police to warn. If the decision is left unchallenged, it may open the door for future claims and lead to a gradual widening of the ‘exceptional circumstances’ in which public authorities can be liable in negligence.”
You can hear Conor discussing this case in more detail with me on Law Pod UK here.
Does this latest ruling by the Supreme Court signal a return to the orthodoxy laid down in Michael [2015], and Robinson [2018]?
The Court said, in terms, that it had “not been invited on this appeal to consider departing from Michael and, given the weight of that authority and the further body of authority since founded on it, this would not have been a realistic argument to advance.” (para [86]).
It is worth reminding ourselves what Michael established. At para 97 of that judgment Lord Toulson said:
“The fundamental reason [for dismissing this claim] … is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.”
The Court also affirmed that “it is now firmly established (or re-established) that the liability of public authorities in the tort of negligence to pay compensation is governed by the same principles that apply to private individuals”(para [1]). A logical step from this – which will be of surprise to some – is that no rescue service will be in breach of a common law duty of care if it makes no attempt at rescue at all. Therefore no liability could arise from making an attempt which is ineffectual. Although the police have statutory powers and duties to protect the public from harm, a failure to do so, does not (of itself) make the police liable in the tort of negligence to pay compensation to an injured person unless, applying the same principles, a private individual would have been so liable. (Paras [20] – [44] )
Mr Kendall, after his accident, had been warning other drivers of the danger of the black ice, by trying to flag them down, and would, it was said, have continued to do so had the police not arrived. The police “interfered” with this activity on their arrival. For the first time the Supreme Court has accepted that there can be liability under what has been labelled the “interference” principle. According to this, there could be liability in the tort of negligence where a person intervenes provided that that person knows or ought reasonably to have known (i.e. it must be reasonably foreseeable) that the intervention might have the effect of stopping another person’s warning or rescue attempts. (paras [48] – [58]).
The “interference” principle arose out of a series of first responder cases marked by Kent v Griffiths [2001] QB 36, where a call handler for the London Ambulance Service gave assurances that an ambulance would attend with reasonable speed, and the Supreme Court decision in Darnley v Health Services NHS Trust [2018] UKSC 50, where the SC observed that the provision of misleading information which caused physical harm was only actionable if such harm was foreseeable. The Court in this instance endorsed the interference principle, saying that it was
“simply a particular illustration or manifestation of the duty of care not to make matters worse by acting in a way that creates an unreasonable and reasonably foreseeable risk of physical injury to the claimant. There is no reason in principle why the conduct which creates this risk should not consist in acts which are foreseeably likely to have the effect of putting off or preventing someone else from taking steps to protect the claimant from harm.” (para [56])
But the interference was not made out in this case. It is not enough to show that the defendant had acted in a way which had the effect of putting off or preventing someone else from helping the claimant. Rather, for a duty of care to arise, it is necessary to show that the defendant knew or ought to have known (ie that it was reasonably foreseeable) that its conduct would have this effect. There was no evidence before the court that the police were aware that, before calling 101, Mr Kendall had been attempting to warn other motorists of the ice hazard. Nor was it alleged that Mr Kendall said anything to the call handler or to any of the police officers who attended the scene of his accident to suggest that he had any intention of making such attempts. It was crucial to the appellants’ case that the police knew that for private reasons, Mr Kendall would have taken such steps as he could to protect road users from harm. They did not have any reason to know that, and therefore the forseeability requirement was not met.
“Applying the interference principle, the police could not be held liable for making matters worse; and none of the possible exceptions to the general rule that there is no duty of care to protect a person from harm can be made out.” [89]
The second argument put forward by counsel for Mrs Tindall was that one of the exceptions to the general rule of no liability for failure to protect another from injury applied here. The exceptions urged upon the court were assumption of responsibility, control and status. But none of these exceptions could be made out on the assumed facts. There was no assumption of responsibility by the police to other drivers to protect them from the black ice danger [74] – [77]; the police did not have control of the patch of black ice which was the source of danger [78] – [84]; and no duty of care could arise simply on the basis of the status of the police as professional emergency responders. [85] – [87]
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