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Articles | Tue 25th Jan, 2022
The Court of Appeal have allowed the Chief Constable’s appeal against the Master McCloud’s refusal to strike out the claim against him. The case concerned whether police officers who attended a road traffic accident caused by ice owed a duty of care to make the road safe for later motorists. Shortly after the officers left the scene of the first accident, a head-on collision occurred between two vehicles in which both drivers were tragically killed. Striking out the claims brought by the widow of one of the deceased drivers, the Court of Appeal rejected arguments that the police had made matters worse by their attendance at the first accident, or had assumed a duty of care, or had come under a duty by reason of the fact that they had had the power to exercise control over the accident scene. The Court held that the case was bound to fail on established, common law principles.
In this decision, the Court of Appeal re-affirmed the principle that absent a specific statutory provision which creates a civil liability (such as is the case with highway authorities under s41 of the Highways Act 1980) public authorities stand in the same position as other individuals regarding the law of tort. If a private citizen would not have owed a duty of care in the tort of negligence, nor will the public authority. The appeal arose out of the decision of Master McCloud, who when faced with an application to strike out the claim based on that principle, was unwilling to do so and considered that the law in relation to the duties of public authorities was in a “state of flux”.
The Chief Constable’s position was that this was wrong. The law has been developing since the careful consideration of Lord Nicholls in Stovin v Wise  3 WLR 389, in which the liability of a highway authority for a dangerous junction was considered. Lord Nicholls said: “The distinction between liability for acts and liability for omissions is well known. It is not free from controversy. In some cases the distinction is not clear cut. The categorisation may depend upon how broadly one looks when deciding whether the omission is a “pure” omission or is part of a larger course of activity set in motion by the defendant.”
When do public authorities owe a duty of care?
However, the law in relation to when a public authority may owe a duty of care has been greatly clarified by three recent decisions of the Supreme Court: Michael v Chief Constable of South Wales  UKSC 2, Robinson v Chief Constable of West Yorkshire  UKSC 4;  AC 736 and N v Poole Borough Council  UKSC 25;  2 WLR 1478. In Robinson, Lord Reed specifically focused on the distinction between acts and omissions in considering whether a duty of care could be justifiably imposed. He said, [§28]:
In this context I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale of the distinction drawn in the authorities, and partly because the distinction between acts and omissions seems to be found difficult to apply. As in the case of private individuals, however, a duty to protect from harm, or to confer some other benefit, might arise in particular circumstances, as for example where the public body had created the source of danger or had assumed responsibility to protect the claimant from harm: see, for example, Dorset Yacht Co Ltd v Home Office  AC 1004 , as explained in Gorringe v Calderdale Metropolitan Borough Council  1 WLR 1057 , para 39.”
This line of argument was developed by the Chief Constable, appealing against the Master’s conclusion that it might have been arguable that in removing a warning sign from the locus of the accident, the police had in fact taken a positive step that increased the danger to other drivers. Again, despite the more recent authority on the point, the answer was provided by Lord Hoffmann in Stovin: “One must have regard to the purpose of the distinction as it is used in the law of negligence, which is to distinguish between regulating the way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity. To hold the defendant liable for an act, rather than an omission, it is therefore necessary to be able to say, according to common-sense principles of causation, that the damage was caused by something which the defendant did.”
Stuart-Smith LJ carefully considered the authorities and came to the conclusion that the appeal should succeed and the Claimant’s claim should be struck out. He said: “I cannot accept the Claimant’s submission that a duty can arise in circumstances “where a defendant had the power to exercise physical control, or at least influence, over a third party, including a physical scene (such as the accident scene in the present case) and, absent their negligence, ought to have exercised such physical control.” The submission is far too wide. If correct, it would mean that whenever a public authority has the power to prevent harm and, if acting competently, ought to have prevented it, then a duty of care to prevent the harm arises. This is directly contrary to the firmly established principles that are set out in and derived from the authorities to which I have referred”.
There has therefore been no extension of the duties owed by public authorities. This has significant implications: just as the decision in N v Poole Borough Council was a social services “failure to remove” case yet with a principle that applied in this case, so this decision will bolster the position of local authorities seeking to defend themselves against different types of claim where no duty is owed.
The importance of strike outs
Of particular interest to practitioners is the relevance of the strike out mechanism and its utility in these circumstances. One of the Master’s findings was that it was not appropriate to strike the claim out on the basis of legal principle before a trial of the facts. This was a further ground of appeal in which it was pointed out that courts have been able to resolve issues concerning the existence of a duty of care on strike out applications, and those of you who have been following the recent stream of litigation arising out of social services cases will be aware of this being a hotly contested facet in that arena too.
In two recent appeals to the High Court, Stacey J handed down her long-awaited decision ( EWHC 2974 (QB)) on the appeals from the decisions of Deputy Master Bagot QC in HXA v Surrey CC EWHC 250 (QB) and Master Dagnall in YXA v Wolverhampton CC  EWHC 1444 (QB). She dismissed the claimants’ appeals, upholding the striking out of the claims in negligence brought by them against social services authorities.
In Tindall, the Chief Constable reiterated the importance of the strike out mechanism as an appropriate step when it is considered that no duty is owed. In argument, Andrew Warnock QC pointed out that courts of the highest level have been able to resolve issues concerning the existence of a duty of care on strike out applications. Indeed, key cases in the appeal, namely Michael, N v Poole, and others all proceeded by way of strike out applications. In Van Colle v Chief Constable of Hertfordshire  1 AC 225, also a strike out application, the House of Lords overturned the Court of Appeal, which had declined to strike out a claim on the basis that the facts should be found at trial. At [§140] Lord Brown said: “As a final comment I add only this, In common, I think, with all your Lordships, I regard this issue as plainly one which the House should decide one way or the other on the pleaded facts. Either a duty of care arises on these facts or it does not. No useful purpose would be served by allowing the action to go to trial for facts to be found and then for further consideration to be given to the applicable law. In my judgment the Court of Appeal erred in this respect as well in supposing that the claim might ultimately succeed”.
This article was first published in Lexis Nexis, 21st January 2022.