Case Summary: Tindall and Another (Appellants) v Chief Constable of Thames Valley Police (Respondent) [2024] UKSC 33

In negligence, a distinction is generally drawn between positive acts (for which, in principle, a claimant can recover) and omissions (for which a claimant usually cannot). Over time, the courts have developed a variety of exceptions to the omissions rule, for example where (i) the tortfeasor has a special level of control over the source of the danger, (ii) a tortfeasor has done something which prevents another from stepping in to protect against a danger, and (iii) a tortfeasor assumes responsibility to protect a claimant from danger.

On 23 October 2024, the Supreme Court handed down its decision in Tindall. Prior to Tindall, there was no Supreme Court authority on the precise question of where the dividing line should be drawn between failing to protect a person from harm and ‘making matters worse.’ In Tindall, the Supreme Court endorsed an ‘interference principle.’ 

Facts

The facts in Tindall were as follows:

• Early in the morning on 4 March 2024, a motorist, Mr. Kendall (“K”) lost control of his car on an area of black ice while travelling southbound on the A413 in the direction of High Wycombe. Thankfully, K was not seriously injured. K, who had worked as a road-gritter for ten years, recognised that black ice was the cause of the collision and that it presented an imminent danger to other road users. K phoned emergency services and, while waiting, warned drivers of approaching vehicles to slow down.
• When police officers attended the scene, they erected a police slow sign by the carriageway. However, once accident debris was cleared from the road they left the scene, taking their sign with them. Since K had also left the scene, other motorists were given no warning about the black ice.
• Approximately an hour after K’s initial collision, Mr. Bird lost control of his car on the same area of black ice 184 metres from where K’s car ended up. His vehicle, unfortunately crossed into the path of a car driven by Mr. Tindall in the opposite direction. A head-on collision occurred, and both drivers unfortunately died.  Shortly afterwards, Mr. Tindall was killed when his vehicle collided with another vehicle which had skidded on the black ice.
• The Independent Police Complaints Commission (as it then was), concluded that the officers had a case to answer for gross negligence manslaughter and misconduct in public office. The case was referred to the Crown Prosecution Service, which decided not to prosecute the officers. The police disciplinary tribunal found the officers involved to be guilty of misconduct and gross misconduct.
• Following a five-week inquest, a jury gave a narrative verdict which stated that the police officers “should” have done more. The jury found: that there was a localised patch of ice; that the cause of the road being in that condition was excess water which froze forming ice; that the highway authority responsible for the road (Buckinghamshire County Council) had failed to investigate the cause of the excess water and take appropriate action to stop the water reaching the A413; and that the highway authority and the police, on the basis of the verbal information received, should have carried out a detailed investigation prior to, and at the scene of, Mr Kendall’s accident to identify the root cause. The jury also found that the following actions should have been carried out after Mr Kendall’s accident: appropriate signs should have been placed; gritters should have been requested and the police should have stayed at the scene until the gritters arrived; the road should have been closed; and appropriate support should have been requested.

The scene was set for a common law negligence claim. The Claimant’s case was that but for the arrival of the police at the scene of K’s accident, K would have continued making attempts to warn other motorists of the ice on the road. The Claimant contended that the police made matters worse by displacing K’s efforts without taking any comparable steps of their own to warn motorists of the hazard after they left. Alternatively, a duty of care arose from the fact that the police took control over the scene upon their arrival and then relinquished control without taking steps to remove or reduce the hazard. 

Judgment

At §44 of their judgment, Lord Leggatt and Lord Burrows pulled together five central principles from the case law.

1. There is a fundamental distinction, drawn in the cases between making matters worse, where the finding of duty of care is commonplace and straightforward, and failing to confer a benefit (including failing to protect a person from harm), where there is generally no duty of care owed.
2. Robinson [2018] AC 736 and Capital & Counties v Hampshire County Council [1997] QB 1004 were examples of the former. In Robinson, two police officers had attempted to arrest a suspected drug dealer. In the ensuing struggle, the police injured a 76-year-old frail woman. The Supreme Court determined that the police officers were responsible for their actions which had caused her injury. In Capital & Counties, a fire brigade was held liable where it had turned off the heat-activated sprinkler system, causing the fire to rapidly spread out of control and destroy the premises. It was determined that, if the sprinklers had not been turned off, the premises would not have been destroyed.
3. Where a distinction was difficult to draw between making matters worse and failing to protect from harm, the relevant question to ask was “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.” The defendant generally will not owe a duty of care to confer a benefit to another person. However, if the defendant makes a person worse off than if the activity had not been undertaken, then liability can be understood to arise.
4. In other words, “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. By contrast, no duty of care is in general owed to protect others from risks of physical harm which arise independently of the defendants conduct whether from natural causes or third parties.”
5. Nevertheless, there remain exceptions to the general rule that there is no duty of care to protect a person from harm. For example, where there has been an assumption of responsibility.

At §56, the Supreme Court endorsed the “interference principle”, set out at §50:

“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 or or prevent someone else helping B, then A will owe B a duty to take reasonable steps to give B the help she needs.”

Relying on this principle, OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 was overturned. In that case, the coastguard, among other alleged failings, misdirected a Royal Navy helicopter to the wrong area in searching for a canoeing party which had got into severe difficulties at sea. Although the party was eventually rescued, four children later died from hypothermia. The claim was rejected on the ground that to distinguish between the coastguard misdirecting their own rescuers (which would clearly not give rise to liability) and misdirecting another rescue service would be quite artificial. The Supreme Court disagreed (at §57). The relevant question to ask was whether the coastguard and the Royal Navy were distinct legal persons with distinct legal duties and liabilities, which they were.

In Tindall, the Claimant conceded that in order to succeed, 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 K from warning other motorists.

On that basis, the Supreme Court determined the claim should be struck out. There were no pleaded allegations in respect of whether the police were aware that K had been attempting to warn other motorists of the ice hazard, or whether K had said anything to the call handler or officers at the scene that he had the intention of making such attempts. The evidence had focussed on what K had said he would have done had the police not arrived, but that was only “part” of the necessary inquiry – “what is also critical is what the police knew or ought to have known about the role of Mr. Kendall and what he would have done but for their arrival. 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.”

Takeaway Tips

1. At the outset of any claim, parties and legal representatives should have in mind the general rule that no duty is usually owed to protect others from risks of physical harm which arise independently of the defendant’s conduct and let it be their guiding principle. Ask yourself if any exception to the general rule applies here (such as assumption of responsibility etc) or whether the public authority has made matters worse.
2. Check the evidence in respect of the intervener principle. If you are bringing a claim, make sure at the outset that your pleaded case sets out why the public authority knew, or reasonably ought to know, that their positive acts would put off a third party from taking preventative or protective measures. If you are defending, check whether this essential ingredient forms part of the pleaded case. Constructive knowledge is likely to be the key battleground for these cases.
3. Given the need to investigate and bring evidence of the public authority’s knowledge of the effects of their own actions, claims are likely to require more upfront work than before. Best efforts should be made to bring the claim at an earlier stage with sufficient time to investigate evidence and seek information from the Defendant.
4. If acting for the Defendant, consider bringing a strike out application at an early stage if the relevant elements have not been pleaded properly, or there is no evidence from which to infer constructive knowledge.

This blog is adapted from a webinar which 39 Essex Chambers' barristers Scarlett Milligan and Celia Reynolds delivered in October 2024. A recording of this talk is available here.