Public Authorities and Negligence: Lessons from Tindall v Chief Constable
Introduction
On 23 October 2024, the Supreme Court handed down its decision in Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33, the latest in a recent series of appellate court decisions regarding the liability of public authorities to the public when they suffer harm from third parties. This decision is important, not just for those involved with road traffic claims, but for anyone involved in claims made against public bodies, especially involving allegations of failures to protect or warn.
At first glance, this decision appears to follow the trend of returning to a narrower common law orthodoxy on the liability of public authorities – see the recent Supreme Court decisions in HXA and YXA [2023] UKSC 52 – however, a closer look at the Supreme Court’s analysis suggests otherwise.
Factual background
The claim involved two car accidents. The first involved Mr Kendall who, at 04:30, lost control of his vehicle on a patch of black ice and rolled his car into a roadside ditch. Mr Kendall was not seriously injured. He got out of his car and inspected the black ice. Having previously worked as a road-gritter for ten years he realised this posed an imminent danger to other road users, so he stood by the side of the road waving at passing traffic, in the hope of encouraging them to slow down or stop. Mr Kendall called 101 and spoke to the police. He relayed the circumstances of his accident, and the police told him they were on their way to the scene.
The police arrived and inspected Mr Kendall’s vehicle. Cars slowed down because of the blue lights on their vehicles. The police placed a “police slow” road sign on the road, and checked for, and swept away, the debris from the accident. The police requested the attendance of a gritter. Mr Kendall was checked by paramedics and then taken off in an ambulance. At 05:26, the police left the scene and took the “police slow” sign with them.
At some point between 05:45 and 05:52, Mr Bird was driving on the same stretch of road and lost control of his car on the same area of black ice (184 metres from where Mr Kendall’s car ended up). His vehicle crossed into the path of a car being driven in the opposite direction by Mr Tindall. Both cars collided head on at approximately 50 mph and both drivers died in the accident.
The Claimant (and Appellant) in this case was Valerie Tindall, the widow and administratrix of Mr Tindall who died in the second accident.
Claim history
In the decision, the Supreme Court observed:
“There can be no doubt on these facts that the failure of the police officers to take steps to protect road users from the danger posed by the ice hazard to which the officers had been alerted was a serious dereliction of their public duty owed to society at large.” [20]
This is reflected in the investigations into the matter which preceded the civil claim.
The incident was initially investigated by the Independent Police Complaints Commission (IPCC). The IPCC report concluded officers had a case to answer for gross negligence manslaughter and misconduct in public office. The case was referred to the CPS who decided not to prosecute. Police conduct was the subject of disciplinary proceedings, and the tribunal found two officers guilty of misconduct and one of gross misconduct.
A five-week, article 2 inquest was also conducted. The jury returned a narrative verdict with a number of findings including that the police should have stayed at the scene until gritters arrived and signs should have remained in place on the road.
This appeal arose from an application by the Chief Constable of Thames Valley Police to strike out subsequent the civil 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.
In the High Court, Master McCloud held that claim should not be struck out and that summary judgment should not be given because the central question of whether police conduct amounted to making matters worse – as well as the question of whether the police had taken control and/or assumed responsibility such that they had a duty of care to protect Mr Tindall from harm – were fact-dependent exercises which could not be undertaken without a full consideration of the evidence.
The Chief Constable was however successful in the Court of Appeal (Stuart-Smith LJ giving judgment with which Thirlwall and Nicola Davies LJJ agreed). The Court of Appeal found that Master McCloud erred in concluding that the point of law could only be decided after trial, and then found against the Claimant on the substantive points of law advanced in an attempt to establish liability on the part of the police.
Decision and commentary
Lord Leggatt and Lord Burrows gave the unanimous judgment of the Supreme Court (with Lord Hodge, Lord Briggs and Lady Simler agreeing).
Making matters worse
As a general rule, liability in the tort of negligence can only arise if a person acts in a way which makes another worse off as a result. By contrast, a failure to act, however blameworthy, does not make a public authority liable (with some exceptions discussed below).
The primary argument advanced by the Appellate was that by leaving the scene the police made matters worse (in other words they acted and caused harm), and therefore owed a duty of care to Mr Tindall. Arguing that the police failed to protect Mr Tindall from the black ice on the road would have fallen foul of the distinction drawn in the tort of negligence between act and omissions. This argument was founded on the allegation (accepted for the purposes of the appeal) that but for the arrival of the police at the scene of Mr Kendall’s accident, Mr Kendall would have continued to warn other motorists of the ice on the road. Police made matters worse by displacing his efforts, without taking any comparable steps of their own to warn motorists of the hazard. The police left, leaving no form of warning.
The focus of the Supreme Court’s analysis was on academic commentary on the ‘interference principle’ as an exception to the general rule on omissions, explained in McBride and Bagshaw’s Tort Law 6th ed (2018) in the following terms:
“If 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”.
The difficulty identified by the court is that the main academic texts on the interference principle do not cite any case as direct support for the interference principle (however, they do suggest that the results of several cases could be explained by it). Indeed, in McBride and Bagshaw’s more recent edition of Tort Law published since the hearing of the appeal, the authors expressed reservations that the interference principle is “more controversial than we acknowledged in previous editions…”.
However, the Supreme Court held:
“Despite the authors’ recent misgivings we consider that the “interference principle” articulated by McBride and Bagshaw is a correct statement of English law. Although there has been no previous English case clearly accepting and applying this principle it is an alternative way of rationalising the result in Kent v Griffiths and one which this court has endorsed in Darnley. It follows in any case from first principles. 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.” [56]
“…it is not enough to show that the defendant has acted in a way which had the effect of putting off or preventing someone else from helping the claimant. Rather, in line with the well-established approach to establishing any duty of care, 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.” [58]
However, it is on the point explained at [58] above – 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 – where the Appellant’s case run into difficulty. The Court accepted that police attendance caused Mr Kendall to desist from attempts he would otherwise have made to alert other motorists to the ice on the road. However, it was not alleged by the Appellant that the police were aware of Mr Kendall’s warning attempts prior to the 101 call. The Court observed: “As far as the police were concerned, Mr Kendall was someone who had been injured in an accident and no more than that. He was a victim, not a rescuer.” [62]
Accordingly, the Appellate failed on this argument due to a “fatal factual lacuna” [68] rather than on a point of law. My view is that the Supreme Court’s analysis of the interference principle is, if not expansive, certainly of assistance to those bringing actions against public bodies who, until this decision, have not previously been able to rely on any clear authority in support of the principled contention. I anticipate that this decision will be used by claimants as an attempt to work around the narrow orthodoxy of the omissions principle.
Control
In the alternative, the Appellate argued that one (or more) of the exceptions to omissions principle applied, largely focusing on the contention that the police came under a duty to protect motorists from danger by taking control of the accident scene. The Appellant argued that the principle of liability based on control is not confined to situations involving an assumption of parental or quasi-parental responsibility but extends to any situation where the defendant has control over a particular source of danger, whether it be a human being (as in the Carmarthenshire and Dorset Yacht cases) or an artificial or natural hazard, and the claimant is at special risk of suffering harm if such control is lost or relinquished.
The Supreme Court rejected this broad principle, and held that even if it were to apply, the facts were once again against the Appellate; the source of the danger was the patch of black ice which extended for 50 – 100 yards, some distance from where Mr Kendall’s car ended up in the ditch, which the Court deemed to be the accident scene. The Court observed that one of the criticisms made was that police did nothing about the ice: i.e. they did not inspect it or take any necessary measures such as cordoning it off. Therefore, the Supreme Court held that no duty of care arose from the existence of a power of control.
My view is that this analysis is somewhat strained; ‘taking control of the scene’ by warning motorists using the stretch of road (by use of flashing lights, signage etc) and getting them to slow down would be intended to mitigate/overcome the risk posed by the nearby black ice even if it was not done in close proximity to the ice.
Conclusion
Ultimately, the Appellate was unsuccessful on both central arguments because of the Supreme Court’s handling of the facts, which weren’t explored to the full extent by virtue of the appeal arising from a strike out/summary judgment application; albeit many of the facts that the case turned on were agreed. This serves as an important warning to claimants to ensure that their factual cases are as clear and detailed as they can be from an early stage.
On the law, the decision is more progressive and may lead to future successful attempts to establish liability by relying on the Supreme Court’s analysis on the interference principle, specifically in circumstances involving the displacement of people rescuing or assisting members of the public who are in danger. As such, this decision may have significant implications for public bodies, in particular those involved in emergency response.
It remains the case that civil claims against public authorities based on allegations of a failure to protect/ warn are very difficult to bring. Those affected may continue to be limited to other forms of investigation, such as inquests and disciplinary procedures, in instances where public authorities have fallen short, even when such conduct is described as a “serious dereliction of their public duty”.
