Judges: Lord Hodge (Deputy President), Lord Briggs, Lord Leggatt, Lord Burrows, Lady Simler

Case Summary: 

The case resulted from a road traffic accident on 4 March 2014 in which Mr Malcolm Tindall was killed. The Deceased’s wife brought the claim, arguing that the Police's response to an earlier accident on the same road contributed to the fatal accident.  The case considered fundamental questions about the duty of care owed by public authorities, particularly the Police, in situations where their actions (or inactions) might have exacerbated a hazardous situation.

The Defendant had sought to strike out the claim, arguing that the facts did not disclose a valid legal claim. That application was initially unsuccessful in the High Court but succeeded on appeal to the Court of Appeal. The Claimant then appealed to the Supreme Court, which had to determine whether the Police owed a duty of care to Mr. Tindall and whether their actions made matters worse, thereby contributing to the accident.

Facts of the Case: 

The events began with an initial accident involving a Mr Kendall, who lost control of his car on a patch of black ice on the A413 (near High Wycombe). Although Mr Kendall was not seriously injured, he noted the danger posed by the ice and attempted to warn other motorists. He called the Police to report the hazard, and Police officers were sent to the scene. On arrival Police officers spoke to Mr Kendall who described the accident and his injuries.  He then left the scene in an ambulance. 

At no stage did the Police officers say or do anything to encourage Mr Kendall to stop his attempts to warn other motorists, or direct him to stop what he was doing and leave.

A ’Police Slow’ sign was present during the period that the Police were on the scene.  The road was swept, and debris removed. A gritter was requested (though without any urgency being described).  The Police officers then left.  No signs were left at the scene once the Police left.

Shortly after the Police left the scene, a Mr Carl Bird lost control of his vehicle on the same patch of ice, resulting in a head-on collision with Mr Tindall's car. Both Mr Bird and Mr Tindall died in the accident. The Claimant argued that the Police’s failure to properly manage the scene and warn other motorists contributed to the fatal accident.

The case was further complicated by an Investigation by the Independent Police Complaints Commission (IPCC) and a Police disciplinary tribunal. The IPCC found that the officers had a case to answer for gross negligence manslaughter and misconduct in public office. However, the Crown Prosecution Service decided not to prosecute the officers. The disciplinary tribunal found the officers guilty of misconduct, highlighting errors in their handling of the accident scene.

The Court of Appeal had described it as a “paradigm example of a public authority responding ineffectually and failing to confer a benefit that may have resulted if they had acted more competently”.

Claimant’s Case: 

The Claimant argued that the Police made matters worse by displacing Mr Kendall's efforts to warn other motorists without taking adequate steps themselves. She contended that the Police's actions increased the risk of harm to road users, including Mr Tindall. The Claimant also argued that the Police assumed control of the accident scene and, by doing so, assumed a duty of care to protect road users from the hazard posed by the ice.

The Claimant's legal team further argued that the Police's failure to take appropriate measures, such as placing warning signs or closing the road, constituted negligence. They contended that the Police's actions fell within one of the exceptions to the general rule that no duty of care is owed to protect a person from harm, as the Police had taken control of the scene and failed to mitigate the danger.

Additionally, the Claimant's case relied on the argument that the Police's actions prevented Mr Kendall from continuing his efforts to warn other motorists. They argued that the Police should have foreseen that their presence would lead Mr Kendall to cease his attempts to alert others, thereby increasing the risk of further accidents.

The Defendant's Case: 

The Defendant argued that the Police did not owe a duty of care to Mr. Tindall or other road users in this situation. They contended that the Police's actions did not make matters worse and that their response was ineffectual rather than negligent.  It was emphasized that the Police did not create the hazard and were not responsible for the ice on the road.

It was further argued that the Police's actions did not prevent Mr Kendall from warning other motorists. They contended that Mr Kendall's decision to leave the scene was not influenced by the Police and that there was no evidence to suggest that the Police were aware of Mr Kendall's intentions to warn others.

The Defendant also argued that the Police did not assume control of the accident scene in a manner that would give rise to a duty of care. They contended that the Police's actions were consistent with their public duty to respond to emergencies and that they did not assume responsibility for the safety of road users beyond their statutory obligations.

Case law:

The Court considered the case law summarising it as:

(i) There is a fundamental distinction, drawn in all the above cases, between making matters worse, where the finding of a 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.

(ii) An example of the former (making matters worse), where there was held to be a duty of care owed by the police, is Robinson. As regards other emergency services, a more difficult example is the Hampshire case in Capital & Counties (turning off the sprinkler system). All the other cases mentioned fell on the other side of the line.

(iii) A difficulty in drawing the distinction (between making matters worse and failing to protect from harm) is how to identify the baseline relative to which one judges whether the defendant has made matters worse: see Sandy Steel, “Rationalising omissions liability in negligence” (2019) 135 LQR 484, 487. The cases show that the relevant comparison is with 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 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. So it is only if carrying out the activity makes another person worse off than if the activity had not been undertaken that liability can arise.

(iv) Another way of stating the general rule is to say that 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 defendant’s conduct - whether from natural causes (as in East Suffolk) or third parties (as in Michael and Ancell).

(v) Although not made out in any of the above six cases, there are exceptions to the general rule that there is no duty of care to protect a person from harm, for example, where the defendant has assumed a responsibility to do so or has control of a third party.

The Court's Decision: 

The Supreme Court dismissed the Claimant's appeal, finding that the Police did not owe a duty of care to Mr. Tindall. The court emphasized the fundamental distinction between making matters worse and failing to confer a benefit. 

“To recover … compensation a claimant generally needs to show that the public authority did not just fail to protect the claimant from harm but actually caused harm to the claimant.”

It concluded that the Police's actions did not make matters worse, as they did not prevent Mr Kendall from warning other motorists or create an additional danger.

The court also rejected the argument that the Police assumed control of the accident scene in a manner that gave rise to a duty of care. It found that the Police did not take control of the patch of ice, which was the source of the danger, and that their actions were consistent with their public duty to respond to emergencies.

Furthermore, the court found no basis for the Claimant's argument that the Police's status created an obligation to protect Mr. Tindall from harm. It concluded that the Police's actions did not fall within any of the exceptions to the general rule that no duty of care is owed to protect a person from harm.

Conclusion: 

The case serves as an important reminder about the complexities of establishing a duty of care in negligence claims against public authorities. It underscores the importance of clearly demonstrating how a public authority's actions made matters worse or created an additional danger, rather than simply failing to confer a benefit.

Practitioners should also be mindful of the exceptions to the general rule that no duty of care is owed to protect a person from harm. These exceptions, such as assumption of responsibility or control over a source of danger, require careful analysis and evidence to support their application in specific cases.

The Judgment can be found here.