The Supreme Court has given judgment in Tindall and another (Appellants) v Chief Constable of Thames Valley Police (Respondent) [2024] UKSC 33.
The claim was brought by Valerie Tindall, widow of Malcolm Tindall and administratrix of his estate. It arises from a road traffic accident on the A413 on 4 March 2014 in which Mr Tindall sadly died.
An hour before the accident, another motorist, Mr Kendall, had been driving along the same stretch of road. There was black ice about, which caused Mr Kendall's vehicle to skid off the road into a ditch. Mr Kendall sustained non-life-threatening injuries. He called emergency services and informed them about the ice. He also warned drivers by signalling to them to slow down. About 20 minutes later, officers from Thames Valley Police attended the scene. After advising them about the ice, Mr Kendall was taken to hospital in an ambulance. It is said that, but for the arrival of the police, Mr Kendall would have continued trying to alert drivers to the danger. The police were present for about 20 minutes, during which time they put up a ‘Police Slow’ sign and cleared the debris. Having done that, they left the scene, taking their sign with them. They did not do anything about the ice. Shortly afterwards Mr Tindall entered the same stretch of road in his vehicle. An oncoming car skidded on the ice resulting in a head-on collision. Mr Tindall died, as did the other motorist Mr Bird.
The claimant brought an action in negligence against the Chief Constable of Thames Valley Police and the Highway Authority. The claimant’s case against the Chief Constable was that the police had made the danger worse. Alternatively, the police had assumed responsibility. The Chief Constable applied to strike out the claim as disclosing no reasonable cause of action or, alternatively, for summary judgment. The application was refused by Master McCloud, who considered that the claimant had a real prospect of success. However, the Chief Constable succeeded in the Court of Appeal. The court did not accept that the police made matters worse or that the police had assumed responsibility. Consequently, the claimant appealed to the Supreme Court.
The Supreme Court unanimously dismissed the claimant’s appeal with Lord Leggatt and Lord Burrows giving judgment. On the facts, the police intervention did not give rise to any possible liability for making matters worse. Further, none of the possible exceptions to the general rule that there is no duty of care to protect a person from injury applied (including an assumption of responsibility).
The Supreme Court provided a helpful distillation of the case law especially over the distinction between making matters worse on the one hand and on the other, failing to confer a benefit (where generally there is no duty of care owed). When considering whether a defendant has made matters worse, “the relevant comparison is with what would have happened if the defendant had done nothing at all and had never embarked on the activity which has given rise to the claim … it is only if carrying out the activity makes another person worse off than if the activity had not been undertaken that liability can arise.” The court added that “a person owes a duty to take care not to expose others to unreasonable and reasonably foreseeable risks of physical harm created by that person’s own conduct.” In contrast, “no duty of care is in general owed to protect others from risks of physical harm which arise independently of the defendant’s conduct.” It is also important to view the defendant’s activity “as a whole”.
The claimant’s case was that the police made matters worse. This was based on the allegation (which was accepted as fact) that but for the police’s arrival, Mr Kendall would have continued trying to warn motorists about the black ice. The argument runs that the police made matters worse by “displacing Mr Kendall’s efforts without taking any comparable steps of their own to warn motorists of the hazard”. Once the police had left, taking the sign with them, they exposed motorists to a greater risk of injury than if they had not attended in the first place and with Mr Kendall carrying on as he had been.
In making this case, the claimant drew on “the interference principle” as set out by Nicholas McBride and Roderick Bagshaw in Tort Law, 6th ed (2018), pp 213–217: “[I]f A knows or ought to know that B is in need of help to avoid some harm, and A knows or ought to know that he has done something to put off or prevent someone else helping B, then A will owe B a duty to take reasonable steps to give B the help she needs.” It was argued that the principle applied to this case, with the police officers being “A”, other road users “B”, and Mr Kendall being the“someone else”.
The Supreme Court considered the interference principle in detail. While noting that there had been no previous English case clearly accepting and applying it, the court confirmed that it is a correct statement of the law and that there can be liability under it. In short, “it is 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”.
However, while the court accepted for the first time there can be liability under the interference principle, it concluded there was no liability in this case. For a duty of care to arise under the interference principle it is necessary to show that a defendant knew or ought reasonably to have known that its conduct had or might have the effect of putting off or preventing someone else from helping a claimant. In this case, then, “the claimant would need to show that the police knew or ought reasonably to have known that their conduct had or might have had the effect of putting off or preventing Mr Kendall from warning other motorists of the ice hazard”. The court concluded that it was here that the claimant’s case broke down: “There is no pleaded allegation that the police were aware that, before calling 101, Mr Kendall had been attempting to warn other motorists of the ice hazard. Nor is 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. Nor are any other facts alleged from which such an intention could reasonably have been inferred”. From the police’s perspective, then, Mr Kendall was a victim, not someone who was trying to protect others. Consequently, it was not reasonably foreseeable to them that their actions would cause Mr Kendall to stop trying to warn other motorists.
As such, on the facts alleged, there was “no reasonable basis for the argument that a duty of care was owed by the police to Mr Tindall because the police made matters worse by displacing Mr Kendall as a rescuer.” The suggestion that evidence to the contrary might emerge at trial cut little ice: “the attitude of Mr Micawber is never a good reason to avoid summary disposal of a claim”.
Alternatively, the claimant argued that one (or more) of the exceptions to the general rule applies here. The exceptions that were raised were assumption of responsibility, control and status. During submissions, the claimant’s counsel focused largely on control.
The Supreme Court noted that an assumption of responsibility “involves the idea that a person may, by words or conduct, expressly or impliedly promise (or undertake or give an assurance) to take care to protect another person from harm.” It found there was no assumption of responsibility in this case. The key was “the complete absence of any communication or interaction between the police officers who attended the scene of Mr Kendall’s accident and Mr Tindall”.
Next, the court considered control. Here, the claimant’s case was that even if the police did nothing to make things worse, they took control of the accident scene and that this gave rise to a duty of care to protect motorists from the danger posed by the ice. The court rejected this. The source of the danger was the black ice and the police did not take control of that. Indeed, they did not even inspect it. While this was one of the criticisms made of the police, “that cannot be turned around to say that there was a duty of care consequent on their having taken control of the patch of ice.”
While the claimant’s counsel made much less of status, the court confirmed that no duty of care could arise simply on the basis of the status of the police as professional emergency responders.
Consequently, “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”.
It is significant that the Supreme Court accepted for the first time that there can be liability under the interference principle. This will potentially lead to more claims arising from emergency situations involving multiple actors. However, as the judgment also makes clear, for a duty of care to arise it is insufficient to show that the defendant acted in a way “which had the effect of putting off or preventing someone else from helping the claimant.” Rather, as one would expect, it is also necessary “to show that the defendant knew or ought to have known (i.e. that it was reasonably foreseeable) that its conduct would have this effect”. As such, a careful analysis of the facts will be vital.
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