Judgment handed down in Tindall v Chief Constable of Thames Valley Police

The Supreme Court has today handed down judgment in the case of Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33. The appeal concerned whether police responding to an accident on black ice owed a duty to road users who later came upon the same patch of black ice. It was contended that they did because they had made matters worse in that, by their attendance, they displaced a person, Mr Kendall, who had previously been trying to warn other vehicles and would have continued to do so but for the arrival of the police. After the departure of the police there was a further fatal accident on the same stretch of black ice. The Supreme Court held that no duty was owed to a victim of the second accident and that the claim on behalf of his widow and estate should be struck out.

The judgment gives useful guidance as to the meaning of making matters worse and the following key points arise:

1. In distinguishing between cases of failing to confer a benefit and making matters worse, it is important to view the defendant’s activity as a whole. In answering whether the defendant has made matters worse, the relative comparison is with what would have happened if the defendant had never embarked on the activity. Liability can only arise if carrying out the activity makes another person worse off than if the activity had not been undertaken. More than that, the general rule is that a person owes a duty to take care not to expose others to unreasonable and reasonably foreseeable risks of harm created by that person’s conduct, but not to protect others from risks of harm which arise independently of the defendant’s conduct (emphasis added). [paras 44-45]
2. The “exception” to the general rule proposed by Tofaris & Steele in their article “Negligence liability for omissions and the police” (2016) 75 CLJ 128, which had been cited in a number of recent Supreme Court decisions, – that A has done something which prevents another from protecting B from a source of danger – is in fact, as the authors recognise, an instance of the general rule. It is making matters worse by creating an additional danger. [para 49]
3. The Supreme Court explicitly endorsed the ‘interference principle’ advanced by McBride and Bagshaw in their book Tort Law, 6th ed (2018). That is that:
   “[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.”
   The court held that his was again, simply a particular illustration of the duty of care not to make matters worse by acting in a way which creates an unreasonable and reasonably foreseeable risk of physical injury to the claimant. OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897, a case which had cast some doubt on whether the interference principle was a correct statement of the law, was wrongly decided. [paras 50 and 56-57]
4. However, it is not enough to show that the defendant’s conduct has had the effect of putting off or preventing someone else from helping the claimant. It must be shown that the defendant knew or ought to have known, i.e. that it was reasonably foreseeable, that its conduct would have this effect. It was this crucial element which was missing from the Claimant’s case in Tindall. There was nothing in the evidence to provide any support for the contention that the police knew or ought to have known that Mr Kendall was intending to make attempts to alert other motorists to the ice hazard on the road. [para 58, 62]
5. In circumstances where the police officers neither knew nor ought to have known of Mr Kendall’s intention to protect other motorists, even if they had encouraged or coerced Mr Kendall to leave the scene to go to the hospital (which on the agreed facts they did not), that could not have given rise to any duty to protect road users from harm. [para 67]
6. The law in this area has been settled by successive Supreme Court decisions. It is clear and not in flux. Therefore, where it is clear on the facts alleged that no duty of care was owed, it would be a waste of resources to allow the claim to proceed to trial. The suggestion that evidence that the police knew or ought to have known of Mr Kendall’s intentions might emerge at trial was unrealistic. “The attitude of Mr Micawber is never a good reason to avoid summary disposal of a claim.” [paras 68-9]
7. In paragraph 75 the court also gave guidance as to what is required for an assumption of responsibility. In a case such as this, it involves a promise, express or implied, by words or conduct, to take care to protect another person from harm. While not necessary in all situations (see HXA v Surrey County Council [2023] UKSC 52 in relation to children and social services), in some situations it is also necessary that the claimant has relied on this promise. Assumptions of responsibility may also arise in the context of a person voluntarily accepting a specific role or entering into a specific relationship, such as that between a professional person and his or her client or patient.
8. The court left open the question of whether a duty of care could arise from control over a source of danger such as an artificial or natural hazard. On the facts such an argument was untenable even if the principle of law was correct. Further, there is at present no clear authority that such a principle was correct and holding that it was would involve a significant extrapolation from the cases relied upon by the Claimant. [paras 81-83]
9. Finally, the argument advanced by Tofaris and Steel that the police should, as a result of their status, be held to owe a duty of care to a person who they know or ought to know is at a special risk of personal harm, was irreconcilable with the Supreme Court’s decision in Michael v Chief Constable of South Wales Police [2015] UKSC 2. The court was not invited to depart from Michael and any such invitation would have been unrealistic. [paras 85-86]

Andrew Warnock KC and Ella Davis represented Thames Valley Police on instructions from DAC Beachcroft.