Strengthening the position for public authorities – Tindall v Chief Constable of Thames Valley Police [CoA January 2022]

We have recently written on HXA v Surrey and YXA v Wolverhampton, which added to the line of cases confirming that no general duty is owed by the public sector to protect one individual from harm by another. We have now secured the strike out of a claim against Thames Valley Police, which further strengthens this line of authority.

The Facts

In the early hours of 4 March 2014, a motorist, K, was driving along the A413 in Buckinghamshire. It was a freezing night and K lost control of his car on a stretch of road due to black ice. K’s car rolled over into a ditch.

Despite being injured, K was able to get out of his car. He called the emergency services, advising that there was ice all over the road, and tried to warn oncoming motorists of the ice.

The defendant’s officers subsequently attended the scene and put up a temporary “Police Slow” sign by the carriageway. They cleared away the debris, noted that K was removed to hospital in an ambulance and left the scene, with their sign, at around 5:25 AM. No functional steps were taken to removal the original danger – the black ice - and no warning of it remained.

K’s evidence was that, but for the arrival of police officers, he would have continued his attempts to warn other road users of the ice.

Tragically, around 20 minutes later, at 5:45 AM on the same stretch of road a car driven by a Mr Bird went out of control on the black ice colliding with a car driven by Mr Tindall, killing both men.

Proceedings

Mr Tindall’s widow brought a claim in negligence seeking substantial damages against both the police and the highway authority. The Chief Constable applied to strike out the claim. Master McCloud refused, and the appeal of her decision was leap frogged directly to the Court of Appeal.

Approach at the Court of Appeal

The appeal was pursued on two substantive grounds:-

1. Despite attending at the earlier accident, the officers did nothing which either created or increased the original hazard posed by ice on the road.
2. The Master was wrong to conclude that it was arguable that the police officers that morning owed a duty because they had taken control and assumed responsibility of the location in the particular circumstances.

Therefore there was no need for there to be a trial of the facts, and a strike out was appropriate.

After a comprehensive review of all the authorities, the Court of Appeal summarised the state of the law as follows:-

1. A public authority will not generally be held 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. Here, the Police could have done more – they could have waited with signs until a gritter arrived, but there was no duty on them to do so. They did not take steps that could have prevented harm to others, but they did not make the situation worse – they left the road as they found it.
2. Knowledge of the danger which a public authority has the power to deal with is not sufficient to give rise to a duty of care to address it effectually, or to prevent harm arising from that danger. The Police officers were entitled to leave when they did.
3. The mere arrival of a public authority upon, or presence at, a scene of potential danger is not sufficient to find a duty of care, even if members of the public have an expectation that the public authority will intervene to tackle the potential danger. K hoped that the Police would stay and continue his actions of warning the public, but that did not lead to a duty on the Police to do that.
4. In cases involving the police, and public authorities generally, the courts have consistently drawn a distinction between merely acting ineffectually and making matters worse. The circumstances in which the police or a public authority will be held to have assumed responsibility to an individual member of the public to protect them from harm are limited.

The Court concluded by saying that ‘the law is not in a state of flux’, and therefore no clarification was needed by a trial of the facts. The transient intervention by Police officers in putting up their warning sign, clearing debris from the road, taking down the sign and leaving was irrelevant.

This was a “paradigm example” of a public authority responding ineffectually to a situation. The Police officers did not take steps that might have prevented harm being suffered but they did not make the situation actually worse, they simply left the road as they found it. In the circumstances, no duty of care was owed, based upon the authorities.

The Chief Constable's appeal was therefore allowed.

Discussion – the present.

This case confirms that, so long as the relevant action by a public authority has not made a situation worse then, subject to certain exceptions, claims should be capable of repudiation. The Court of Appeal used the phrase ‘transient and ineffective’, as being the kind of intervention by a public authority that would not lead to liability.

So, in the social services arena, this strengthens the argument in failure to remove claims that an assumption of responsibility can only arise when Social Services do obtain a Full Care Order and take over parental responsibility for a child. Even the obtaining of a Care Order may not be conclusive. There has to be real evidence that the social worker has made a situation worse, for liability to arise.

In highways cases, the responsibility to maintain the structure of the highway is statutory. However, this judgment emphases that there is no duty upon highways officers to deal with non-structural and/or transient factors affecting the highway. Prima facie, there is no duty to remove a temporary hazard.

This case will be a relief for front line police officers who have to deal with a large number of incidents of various complexity on each and every shift – they can go in, take full control of a scene, deal with a situation to the best of their abilities, and move on.

Discussion - the future

We predict that:-

• The law is settled. Attempts by claimant lawyers in ‘non-police’ claims to circumvent CN and argue that the law is in a state of flux are likely to have little prospect of success in the Court of Appeal.
• Whilst we can expect that claims against public authorities will concentrate on trying to show that actions by (largely) front line employees made matters worse, this will be more difficult because of the reference to ‘transient and ineffectual’ responses ordinarily not being actionable.
• This judgment confirms that claims alleging assumption of responsibility will remain difficult for claimants save in rare cases, because of the need to show that a situation was made worse.
• In this case no claim under the Human Rights Act was pleaded. Such claims may be pursued now instead, but:

1. Generally, the hurdles for a claimant to get over (particularly with regard to Article 2) are higher.
2. Without descending into the politics, will the UK Courts allow HRA jurisprudence to diverge so sharply from what is now an established position in the common law?

Conclusions

The current state of the law may not be welcomed by those representing claimants but hard pressed public authorities will surely welcome this decision.

For more information or advice please contact the experts in our specialist liability team.