Tindall v Chief Constable of Thames Valley Police: Supreme Court grants permission to appeal in significant case on public authority liability

Analysis

The Supreme Court recently granted permission to appeal ("the Tindall Appeal") in respect of the decision of the Court of Appeal in Tindall v Chief Constable of Thames Valley Police & Ors [2022] EWCA Civ 25. This decision overturned Master McCloud's initial refusal to grant summary judgment in favour of the First Defendant. A detailed summary of the case follows below. 

The issues at the centre of the Appeal are of significant public importance and will be of particular interest to all personal injury and public law practitioners, given the fundamental questions the case poses about the extent of the duties owed by the police to members of the public when undertaking its civil operational functions and the circumstances in which liability arises.

The Appeal requires the Supreme Court to clarify the exact meaning and scope of the notion of liability for 'making matters worse' and to consider when and how responsibility is legally assumed by a public authority so as to create a duty of care to protect an individual from harm. As part of this, the Tindall Appeal will challenge the application of the nine principles set out in the Court of Appeal decision (see below). It will also ask the Supreme Court to consider the accuracy of those principles and, more fundamentally, the wisdom of such a checklist. 

The Tindall Appeal also highlights an interesting divergence in approach between the English and Scottish courts. It seems fair to say that, based on the Scottish decision in A.J. Allan (Blairnyle) Ltd v Strathclyde Fire Board [2016] CSIH, this case would not have been struck out in Scotland. In that case, it was held that taking control of a dangerous situation on the highway and then negligently leaving the scene could be seen as either making matters worse or as an assumption of responsibility. 

The grant of permission comes at an interesting time, with similar issues arising (albeit in the context of proceedings brought against local authorities in respect of child protection duties) in the Supreme Court cases of Surrey County Council v HXA and Wolverhampton City Council v YXA, where judgment is pending. The Court was tasked in those cases, and now in the Tindall Appeal for certainty and consistency, with clarifying the duties owed by all public authorities and liability at common law; areas which the authorities show require clarification and which have yet to be fully considered at apex level. 

Joel Leigh of Howard Kennedy LLP acts on behalf of the Claimants instructing Nicholas Bowen KC and David Lemer of Doughty Street Chambers and Duncan Fairgrieve KC (Hon) of 1 Crown Office Row. 

Case summary

Factual background

The underlying facts of the case date back to March 2014, when Malcolm Tindall was killed in a road traffic accident. Mr Tindall was driving when a car in the opposite direction lost control on black ice and collided with his vehicle head-on. The driver of the other car also died, and a passenger was airlifted to hospital. While the police were not present at the scene at the time of Mr Tindall's accident, it is their actions and failings earlier on the same morning that are central to the case.

A little over an hour before Mr Tindall's accident, on the same stretch of road, another motorist (Mr Kendall) had lost control of his car on the same black ice. He suffered minor injuries and was able to exit his vehicle which had overturned in a ditch. Having inspected the road and identified the black ice, he proceeded to wave to passing traffic to stop or slow down in order to reduce the risk of further accidents. Mr Kendall made an emergency call in which he explained the road conditions and was informed that police officers were on their way.

Once on the scene, the police officers put out a warning sign and the road was cleared and swept of debris. Mr Kendall was then taken to hospital, leaving the scene in the care of the police. Despite the continuing conditions, the police removed the warning sign and left the site. At the time of Mr Tindall's accident twenty or so minutes later, there were no police present and no warnings to motorists in place. 

Decision at first instance 

Mr Tindall's widow issued proceedings both in her own right and as Administratrix of her late husband's estate against the Chief Constable of Thames Valley Police and Buckinghamshire County Council in May 2018. The Council joined its sub-contractor, Ringway Jacobs Ltd, as a Third Party. The claim against the Council and Third Party was stayed following the decision of Master McCloud and pending the outcome of the Tindall Appeal. 

Focusing on the claim against the police, the case on liability was put on two main bases:

1. That the police owed Mr Tindall a duty not to make matters worse and that, either individually or in concert the officers involved had, by their conduct, and in breach of that duty, made matters worse. It was argued that the police officers' attendance led directly to Mr Kendall ceasing in his attempts and therefore a worsening in the situation from a road user's perspective. 
2. That the police owed a duty because they had taken control and assumed responsibility in circumstances where the police may be held to have had sufficient power to influence the situation, so as to create a relationship of proximity between them and road users. Further, that the police had then relinquished that responsibility.

The police sought to strike out the claim on the basis that it did not disclose a legally recognisable cause of action. In the alternative, summary judgment was sought on the basis that the claim had no real prospects of success. At first instance, Master McCloud dismissed both applications. 

Court of Appeal decision

The police appealed Master McCloud's decision on the basis that the Master had erred in her conclusions in respect of both of the points listed above. The police also submitted that the Master had erred when concluding that the point of law in the appeal could only be determined after a trial of the facts. 

The Court of Appeal found in favour of the police. It considered a line of authorities on the question of when public authorities may owe a duty of care at common law, the principles of which it said could be traced back to East Suffolk Rivers Catchment Board v Kent [1941] AC 74. The Court of Appeal produced a set of nine principles to be applied when considering whether a public authority has assumed responsibility to an individual member of the public such as to give rise to a duty to exercise reasonable case to protect them from harm. The principles are set out at paragraph 54 of the judgment and can be summarised as follows:

1. Where a statutory authority is entrusted with a mere power (rather than a duty) it will not generally be liable for damage sustained as a result of a failure to exercise the power.
2. A public authority will not generally be liable where it has intervened but has done so ineffectually.
3. Principle (2) applies even where it may be said that the public authority's intervention involves it taking control of operations.
4. Knowledge of a danger which the public authority has power to address is not sufficient to give rise to a duty of care to address it effectually or to prevent harm arising from that danger.
5. The presence of a public authority at a scene of potential danger is not sufficient to find a duty of care, regardless of the expectations of members of the public.
6. Prior effective intervention by a public authority is not of itself sufficient to give rise to a duty to act again in the same way.
7. In cases involving the police the courts have drawn the distinction between merely acting ineffectually and making matters worse.
8. The circumstances in which the police will be held to have assumed responsibility to an individual member of the public to protect them from harm are limited.
9. It is material to ask whether the relationship between the public authority and the individual is any different from the relationship between the authority and other members of the same class as the individual.

The court considered that while the actions of the police were clearly an example of a public authority responding ineffectually and failing to confer a benefit that may have resulted if they had acted more competently, it did not amount to making matters worse. Further, the court did not consider that the facts pointed to an assumption of duty to prevent harm because there was no feature differentiating the relationship of the police with Mr Tindall from their relationship with any other road user. 

In terms of the suitability of the case for summary judgment, the Court of Appeal's view was that the law in respect of these points had been settled by previous decisions binding on the court and that a trial was not required. Interestingly, the Court of Appeal decision was based on the proposition that the law in this area is no longer in flux but that was not the conclusion reached by the Court of Appeal in HXA and YXA. This appears to create a discrepancy in the court's approach.

Appeal to the Supreme Court 

The Tindall Appeal is brought on two grounds:

1. That the Court of Appeal erred in law in holding that it was not arguable that the police had made matters worse or added to the existing danger or created a fresh danger and thereby owed a common law duty of care to Mr Tindall.
2. That the Court of Appeal further erred in categorising the facts as an example of a failure to confer a benefit case and in rejecting the Appellant’s argument that a duty was nonetheless owed to respond competently to the accident because one of the exceptions to the general rule against liability for a pure omission applied. 

In respect of the second ground, the appellant submits that on the pleaded facts it can be argued that either (1) the attendance by the police stopped Mr Kendall (and others) taking steps to prevent the second accident, and/or (2) there was an assumption of responsibility, as by the police having attended and committed to a proper response it acquired a special level of control over the icy section of the road and the ability to control the speed of the oncoming traffic.