The case of Tindall v Chief Constable of Thames Valley Police ought to be read by all personal injury practitioners. The Court of Appeal’s judgment summarises the circumstances in which a public authority owes a duty of care to protect individuals. This article deals with the facts of the case, the approaches taken by the Master and Court of Appeal, and finally provides concluding thoughts on the impact of this judgment in future claims against public authorities.
On a cold spring morning in 2014, a motorist, ‘Mr. K,’ was driving along the A413 in Buckinghamshire. He skidded on black ice, and lost control of his vehicle. Despite being injured, he called the emergency services, advising them of the danger posed by the black ice. The call was taken by a police control room operator. During this period, Mr. K sought to alert other road users of the danger.
Thames Valley Police, the ambulance service and the fire service attended the scene. The police officers put up a temporary ‘Police Slow’ sign by the carriageway. They cleared away the debris and placed Mr Kendall in the care of the ambulance service. Having been informed that Mr. K had been removed to hospital, they left the scene with their sign. No action was taken to remove the black ice, and no warning of it remained.
Twenty minutes later, Mr. B drove on the same stretch of road. Much like Mr. K, he lost control of his vehicle due to the black ice. In doing so, he collided with car driven by Mr. Tindall. Both drivers died in the accident. Mr. Tindall’s widow brought a claim in negligence against both the police and the highway authority. In sum, the allegations of breach against the police were that they had made the danger worse for two reasons. First, because of their attendance Mr. K had ceased his efforts to warn vehicles. Second, they had failed to take proper steps to protect motorists using the road. They also averred that the police had assumed responsibility for their actions in the circumstances. The Chief Constable applied to strike out the claim.
The Judgment of Master McCloud
Master McCloud refused to strike out the claim against the Chief Constable. She found that there was a real prospect of success. On the undisputed facts, police officers removed a warning sign after having put it up and took minimal steps to render the road safe. They had also arranged Mr Ks removal from the scene, thereby causing his efforts to warn traffic to cease. These matters could, in principle, amount to sufficient intervention that the police had made matters worse. The law was in a state of ‘flux’ following the judgments of the Supreme Court in Michael v Chief Constable of South Wales  UKSC 2, Robinson v Chief Constable of West Yorkshire  UKSC 4 and Poole Borough Council v GN  UKSC 25. It could not be said that the Claimant’s pleaded case only had a fanciful chance of success.
Further, the Claimant’s alternative argument on assumption of responsibility was found to have a real prospect of success. In the circumstances, she held that the police may be held to have sufficient power to influence the situation so as to create a sufficient relationship between them and road users at the time and place of the accident.
The Chief Constable appealed on three grounds. First, that the Master erred by holding that the police had made matters worse by removing Mr. Kendall from the scene, and the warning sign. Second, that she erred in holding that the police had assumed responsibility in the circumstances. Third, that she erred in concluding that a point of law could only be determined after a trial on the facts.
The Judgment of the Court of Appeal
Giving the leading judgment Lord Justice Stuart Smith allowed the appeal. Having reviewed the existing authorities, including the three Supreme Court cases referred to above and Gorringe v Calderdale MBC  UKHL 15 and Capital & Counties v Hampshire County Council  1 WLR 1004, he set out a useful summary of the principles applying to the liability of public authorities at paragraph 54:
- Where a statutory authority is entrusted with a power, it cannot generally be held liable for any damage sustained by a member of the public by reason of a failure to exercise that power. The duty of a public authority is to avoid causing damage, not prevent future damage due to causes for which they were not responsible.
- A public authority will not generally held to be liable where it has intervened, but has done so ineffectually such that it has failed to confer a benefit that would have resulted if it had acted competently.
- Principle (2) applies even where it may be said that the public authority’s intervention involves it taking control of operations.
- Knowledge of a danger which the public authority has power to address is not sufficient to give rise to a duty of care to address it effectually or to prevent harm arising from that danger.
- Mere arrival of a public authority upon, or presence at, a scene of potential danger is not sufficient to found a duty of care even if members of the public have an expectation that the public authority will intervene to tackle the potential danger.
- The fact that a public authority has intervened in the past in a manner that would confer a benefit on members of the public is not of itself sufficient to give rise to a duty to act again in the same way (or at all).
- In cases involving the police, the courts have consistently drawn the distinction between merely acting ineffectually and making matters worse.
- The circumstances in which the police will be held to have assumed responsibility to an individual member of the public to protect them from harm are limited. It is not sufficient that the police are specifically alerted and respond to the risk of damage to identified property, or injury to members of the public at large, or to an individual.
- In determining whether a public authority owes a private law duty to an individual, it is material to ask whether the relationship between the authority and the individual is any different from the relationship between the authority and other members of the same class as the individual.
The Claimant’s case was that the presence of the police caused Mr. Kendall to assume privately that they would act in a certain way, which influenced his decision to leave the scene in an ambulance. The police had not done anything that could reasonably have described as negligent and which have contributed to his decision.
Further, the police had not made matters worse by removing their warning sign. Lord Justice Stuart Smith described this as a ‘paradigm example’ of a public authority responding ineffectually and failing to confer a benefit which may have resulted had they acted more competently. They did not make matters worse; they merely left the road as they found it. An appreciation by the police that the road was dangerous because of ice did not impose on them a duty to act to prevent the danger.
With respect to a purported assumption of responsibility, Lord Justice Stuart Smith viewed this to be unarguable. A duty could not, without more, arise where a defendant had the power to exercise physical control or influence over a third party, and ought to have exercised such control. This would mean that a public authority would owe a duty of care to prevent harm whenever it arises. This would run contrary to the firmly established principles of public authority liability. He further distinguished Dorset Yacht v Home Office  AC 1004, on the basis that in that case the police officers had introduced the danger by bringing the trainees in close proximity to the boat.
There are two points which practitioners should draw on from reading this judgment. First, merely allowing a pre-existing danger to continue cannot amount to a creation of a danger. The focus of the claimant’s enquiry should be on factors which indicate that the situation has been made worse by the relevant public authority. Second, the Court of Appeal has firmly held that the law on when a public authority will be held to owe a duty of care is ‘no longer in flux’. The principles are settled and have been authoritatively summarised. There is therefore little scope for claimants to resist applications to strike out on the basis that the civil liability of public authorities is a developing area of jurisprudence.
This case note was first published in PI Focus, April 2022.