The Supreme Court have handed down judgment in Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33. It provides useful guidance on claims against public authorities.

In this case, the Claimant brought a claim as the widow and administratrix of the estate of her late husband, who died in a road traffic accident. It was alleged that the response by the police to an earlier accident on the same stretch of road made matters worse.

In an earlier accident, another driver, Mr Kendall, lost control of his care on an area of black ice. Mr Kendall waved vigorously to slow down other traffic. He also called the police and advised of the presence of ice. Officers attended and placed out a ‘police slow’ road sign whilst they completed their investigations.  Mr Kendall departed for hospital and the police left the scene, removing the ‘police slow’ sign.

Thereafter another driver lost control of his care on the same area of black ice, crossing the path of the Claimant’s husband in a head on collision. Sadly, the Claimant’s husband died on impact or shortly thereafter.

The chief constable applied to strike out the claim at first instance on the grounds that the facts did not disclose a valid claim in law. The application failed at first instance but succeeded on an appeal to the Court of Appeal. The Supreme Court affirmed the decision of the Court of Appeal.

Whilst the Supreme court described the failure by the police officers to take steps to protect road users from the danger posed by the ice hazard as ‘a serious dereliction of their public duty owed to society at large’, it did not follow that they were in breach of a duty of care in the tort of negligence owed to particular individuals.

The basic principle in Michael v Chief Constable of South Wales Police [2015] UKSC 2, is that the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.

Upon examining six key cases relating to the duty of care owed by public authorities, the following central principles were identified:

  • There is a fundamental distinction between making matters worse, where a finding of duty of care is commonplace, and failing to confer a benefit, where there is generally no duty of care owed.
  • The cases show that the relevant comparison is what would have happened if the defendant had done nothing at all. The starting point is that the defendant generally owes no common law duty of care to undertake an activity which may result in benefit to another person.
  • No duty of care is in general owed to protect others from risks of physical harm which arise independently of the defendant’s conduct, whether from natural causes or third parties.
  • There are exceptions to the general rule, for example where the defendant has assumed a responsibility to do so or has control of a third party.

The Claimant argued that the police had made matters worse, in that if they had not attended then Mr Kendall would have persisted in his warning efforts. Such a duty was said to arise from the fact that the police took control of the scene and then relinquished control, without having taken any steps to remove or reduce the hazard.

As an exception to the general rule, the Supreme Court accepted the ‘interference principle’ as set out by McBride and Bagshaw in their book Tort Law: “[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”. This principle is an example of the duty of care not to make matters worse by acting in a way which creates an unreasonable and foreseeable risk of injury to the Claimant.

It is not enough to show that the defendant acted in a way which had the effect of putting off or preventing someone else from helping the Claimant. In line with ordinary principles, for a duty of care to arise it is necessary to show that the Defendant knew or ought to have known that its conduct would have this effect.

However, the claim failed on the facts of this case. There was no evidence that the police knew or ought to have known about Mr Kendall’s actions prior to their arrival or consequently what he would have done but for their arrival. This was a fatal factual lacuna in the Claimant’s case. On the alleged facts, taken at their highest, no duty of care was owed and it would be unjust and a waste of resources to allow the claim to proceed to trial.

The Court went on to reject an alternative argument that the Police had assumed responsibility for the Claimant’s husband. It was further rejected on the facts that the officers had taken control of the patch of ice. A final argument that a duty of care ought to have been owed by the police as a result of their status was rejected, being irreconcilable with the decision in Michael.