Public authorities’ duty of care no longer in flux?

Abstract

The hugely significant and long awaited UKSC decision in Tindall and another (Appellants) v Chief Constable of Thames Valley Police (Respondent) [2024] UKSC 33 has now been handed down.

The decision has long been awaited following recent decisions in this area which suggested that the law was in a “state of flux”. The core issue to be determined by the Supreme Court (“UKSC”) was where the boundary lies between making matters worse and failing to protect a person from injury.

The UKSC unanimously dismissed Mrs Tindall’s appeal. 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 were established.

Background

The following facts regarding the tragic incident on 4 March 2014 were assumed to be true for the appeal.

At approximately 0430, MK skidded on a patch of black ice on the A413. He lost control of his vehicle which rolled into a ditch. He called the emergency services and the police and ambulance attended. MK was later taken to hospital. The police cleared the debris from the accident from the road and then left the scene having removed the “police slow” signage that they had erected. The police took no action regarding the black ice.

Approximately 20 minutes later, CB lost control of his vehicle on the same area of black ice and was involved in a head-on collision with another vehicle being driven by Malcolm Tindall. As a result of the collision, both Mr Tindall and CB were killed.

The widow of Mr Tindall, Valerie Tindall, pursued a claim against the Chief Constable of Thames Valley Police, alleging that the police were liable in negligence for her husband’s death. The Chief Constable applied to have her claim struck out as disclosing no valid claim in law or alternatively for summary judgment on the ground that her claim had no real prospect of success. The police failed in those applications at first instance but succeeded in the Court of Appeal.

The Court of Appeal held that the police, in placing the road sign, sweeping away the debris, taking the sign down and then leaving was a ‘paradigm example’ of an ineffectual response and failing to confer a benefit. However, by doing this, the police did not make matters worse – they simply left the road as they found it. The fact that the police knew of the hazard caused by the black ice did not impose a duty on them to act to prevent danger.

The Court did not accept the Claimant’s submission that the Defendant had the power to prevent harm and should have done so, therefore a duty of care was owed. This submission was held to be too wide and conflicted directly with principles from earlier cases.

Public authorities were held to have the same responsibility as an individual unless a statutory provision creates civil liability. Lord Justice Stuart-Smith concluded that what amounts to an intervention which makes things worse is ‘very fact dependant’. In this case, the police leaving the road as they found it did not make things worse.  

Mrs Tindall appealed the Court of Appeal’s decision and judgment was handed down 23 October 2024.

Judgment

The appeal was dismissed.

The court noted that the law of negligence draws a fundamental distinction between liability for acts and omissions or, put another way, between making matters worse and failing to confer a benefit. Lord Leggatt and Lord Burrows clarified that in general, subject to exceptions, 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.

Liability in negligence can therefore generally arise only if a person acts in a way which makes another worse off as a result, not where a person fails to confer a benefit on another. The same principles apply to public authorities, including the police. 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 negligence to pay compensation to an injured person unless, applying the same principles, a private individual would have been so liable[1].

Mrs Tindall put forward two arguments in the appeal.

First, that the police were liable for making matters worse. MK, after his accident, had been warning other drivers of the danger of the black ice, by trying to flag them down, and would have continued to do so had the police not arrived. In an important development, the Supreme Court accepted for the first time that there can be liability under what has been labelled the “interference” principle. Accordingly, there can 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[2].

However, in this case, the police did not know, nor ought to have known, about MK’s efforts to alert other road users. From their perspective, he was a victim and was not seeking to protect others. It was not reasonably foreseeable to the police that their actions would cause MK to cease his attempts at alerting other road users to the danger of the ice. This was a fatal factual lacuna in Mrs Tindall’s case on liability for making matter worse[3].

The second line of argument sought to suggest that one of the exceptions to the general rule of no liability for failure to protect another from injury applied. The exceptions urged upon the court was the assumption of responsibility, control and status. None of these exceptions was 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. The police did not have control of the patch of black ice which was the source of danger and no duty of care could arise simply on the basis of the status of the police as professional emergency responders[4].

[1] At paragraphs 20 – 44

[2] At paragraphs 48-58

[3] At paragraphs 59 -70

[4] At paragraphs 74-87

Analysis

The UKSC have now clarified that negligence can generally arise only if a person acts in a way which makes another worse off as a result, not where a person fails to confer a benefit on another. The same principles apply to public authorities, including the police. Any previous ambiguity in the case law relevant to public authorities’ duty of care has now been all but eradicated.

This is the latest in a series of cases dealing with public authority duties to the public and is particularly important in the context of recent civil unrest, increased scrutiny of the police, and budgetary constraints. Potential claimants emboldened by the first instance decision, and awaiting the outcome of the appeal, will now likely be deterred from pursuing claims against public authorities in similar circumstances should they arise.

However, in an important development, the Supreme Court accepted for the first time that there can be liability under the “interference” principle. Accordingly, there can 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.

What scenario may give rise to the application of this principle? The most obvious situation that comes to mind is the scene of an emergency, large scale incident or terrorist attack where multiple agencies are involved. What dialogue takes place between, for example, the Ambulance Service leaving the scene and the police who remain? What information did the police know or ought to have known? Can that be evidence thus avoiding the evidential lacuna in Tindall? Was harm reasonably foreseeable?

There may also be application in situations that arise between emergency services and third parties. What of the scenario where a vulnerable person is separated from their carer and then comes to harm? What of pre-release risk assessments and communications with nominated third parties? It is likely that these issues may be explored both in practical terms, and through the courts in civil cases as the interference principle develops over time.

As such, whilst welcomed, the ruling does draw attention to the assertion that cases of this nature will be very much fact dependent, and a careful analysis of those facts will be needed when applying legal principles.

Whilst the position has arguably improved dramatically for public authorities this decision should not be seen as an automatic or assumed defence in every case.