On 23 October 2024, the Supreme Court (SC) handed down judgment in the appeal case of Tindall v Chief Constable of Thames Valley Police. It has significant implications for the responsibilities of emergency services and the scope of liability for omissions.
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. The SC hearing took place on 26-27 June 2024. For a previous history of the matter, see Joel Leigh's earlier article here.
A full copy of the Supreme Court judgment and Press summary can be found using the links on the Supreme Court website here.
Counsel have published their own article here
Summary of the Facts
In March 2014, Mr Tindall tragically lost his life in a road traffic accident caused by ice. Earlier that morning, another motorist, Mr Kendall, had also lost control on the same icy road and crashed his car. Suffering some minor injuries, but otherwise unharmed, Mr Kendall left his car and began to signal other traffic in an attempt to warn them of the danger. He then called the non-emergency number to report the crash, Thames Valley Police responded to Mr Kendall’s accident, cleared debris, and put up a warning sign. However, once Mr Kendall had been taken from the scene to hospital, they removed the sign and left the scene. Twenty minutes later, Mr Tindall’s accident occurred on the same patch of ice.
Summary of the Legal Principles
The case revolves around the tort of negligence, which requires establishing a duty of care, a breach of that duty, causation, and recoverable loss. The primary issue is whether the police owed a duty of care to Mr Tindall. Generally, there is no duty to prevent harm by merely being near a danger (the “Omissions Principle”), but exceptions which are arguably applicable in this case include:
- Creating the danger or making matters worse: the police attended the scene and removed Mr Kendall, who warned other road users of the danger and prevented harm occurring them. The police therefore added to the danger/made matters worse by removing Mr Kendall and had created a duty to remove or lessen the danger.
- Interfering in the situation and preventing another rescuer: the police prevented Mr Kendall and other potential rescuers (e.g. the fire service who also attended on scene) from making the road safe, in effect “rescuing” other road users including Mr Tindall, creating a duty of care towards them by the act of displacing the in-situ rescuer and making the situation worse by preventing the alternative means of rescue.
- Assumption of responsibility/Control: Mr Kendall had taken it upon himself to protect other road users, and the police attended the scene and assumed a duty of care from Mr Kendall, thereafter leaving in breach of the duty.
- Status-based obligations: Whereby the police, given their special level of control and responsibility over the scene, have a duty of care to others as a result of their status creating a sufficiently close relationship to others. Here, by arriving on scene, exercising control over the scene making it temporarily safe for other road users, and encouraging (by mere presence or by requesting an ambulance for him) Mr Kendall to leave the scene, created a duty to other road users such as Mr Tindall.
However, while all four of the above exceptions have been cited with approval by the SC, the Omissions Principle is the general rule and these exceptions are rarely applied in practice. Indeed, exceptions 2-4 have not been applied in English law (though there is some precedent in the Scottish courts). Where there is further departure from the Omissions Principle, the Courts will apply an incremental approach, and only extend the exceptions to cases analogous to earlier precedent.
Claim History
Court of First Instance: In May 2018, Mr Tindall’s widow initiated proceedings in the High Court against the Chief Constable of Thames Valley Police and Buckinghamshire County Council. The claim against the police was based on two main arguments: duty not to make matters worse and assumption of responsibility. The police sought to strike out the claim, but Master McCloud dismissed their application on the basis that a duty of care might be found, and the proper forum for deciding whether a duty of care existed was at a full trial where all the facts would be examined.
Court of Appeal: The police appealed, arguing that the Master had erred in her conclusions. The Court of Appeal found in favour of the police. The court concluded that the police’s actions were an example of ineffectual response, omitting to act, not one of either making matters worse or assuming a duty of care from another.
Appeal to the Supreme Court: The case was then appealed to the SC, the hearing took place on 26-27 June 2024.
The Supreme Court Judgment
The SC unanimously dismissed the appeal.
In its 31-page judgment, the Court provided an extensive background on the omissions principle and its limited exceptions.
Most notably, in paragraphs 48-70, the SC departed from earlier case law and formally and finally recognised interfering (the "interference exception") as an established exception to the omissions principle. The SC viewed the interference exception as a variant of the existing “making matters worse” exception, when person A arrives at a scene and displaces B, the in-situ rescuer, and prevents B taking steps to protect C from harm. This is no different to A creating a danger/making matters worse. Applying the interference exception here, the police’s attendance and displacement of Mr Kendall could be sufficient establish a duty of care to Mr Tindall, albeit note the Court's factual conclusions as summarised below. Consequently, the police then abandoning the scene was capable of amounting to a breach of that duty, which ultimately resulted in Mr Tindall's death.
It did not matter, for the interference exception to apply, whether the police said or did anything which physically displaced Mr Kendall. The mere presence of the police was enough, as it gave Mr Kendall the impression they would take over and this encouraged him to leave. This suggests that the status of the "interferer" will factor into whether the interference exception applies, although it should be emphasised the SC did not explicitly say this.
In making this decision, the SC departed from the earlier case of OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897. In that case, the coastguard misdirected its own lifeboat and a Royal Navy helicopter to the wrong area in search of a canoeing party, resulting in the death of four children from hypothermia due to the delay in their rescue. A negligence claim against the coastguard, alleging that competent action would have led to a quicker rescue and saved lives, was struck out on the grounds that the coastguard did not owe a duty of care. Mr Justice May found no distinction between the two authorities, ruling that ineffectual responses by a public authority were insufficient to establish a duty of care. However, the SC expressly decided that OLL was wrongly decided. The fact these were two distinct legal entities with separate duties and liabilities was key and the interference exception should have been applied. The misdirection by the coastguard made the victims worse off and as such, the claim should have fallen within the interference exception.
However, as alluded to above the SC ultimately found that the interference exception did not apply here. To fully establish a duty of care in negligence claims, it is necessary to show that the defendant knew or ought to have known that their conduct could lead to the claimant being harmed. This goes right back to the foundational principles of duty of care, established in the Donoghue v Stevenson [1932] AC 562, there cannot be a duty of care without harm being a reasonable foreseeability of the defendant's actions. This applies to any duty of care in negligence claims, including those exceptions to the omissions principle. In this case, it was not enough to show that the police’s actions had the effect of preventing Mr Kendall from helping Mr Tindall, because while this was capable of establishing a duty of care, there was a very small but in the eyes of the Court a significant lacuna in the evidence; there was nothing establishing that the police knew Mr Kendall was acting as a rescuer rather than as a victim, seeking to be rescued himself.
The police could not have reasonably foreseen harm to Mr Tindall (and other road users), consequently there could not be a duty of care.
Other potential exceptions to the omissions principle were considered but dismissed, albeit not all entirely satisfactorily. In particular, regarding the potential “assumption of responsibility/control", exception the SC felt they did “not need to explore this question” because, even if it could be accepted in general, it “plainly cannot apply here” as the police did not assume control of the specific patch of icy road which caused Mr Kendall's accident. This was around 184 metres away from the crash site, where the police set up their cars and warning signs. It is perhaps surprising that the SC did not deal with the exception as a general principle before deciding whether it applied in this particular case, as it did with the interference exception.
The "Status" exception was quickly dismissed, as it was not relied upon save to support other exceptions to the omissions principle.
Conclusion and Implications for the Future
The judgment is undoubtedly a disappointing conclusion for the family of Mr Tindall. After years of struggle through the lower courts, the SC found that the facts fell just marginally short of establishing the police’s liability in tort. However, while this is the end of the road for their decade-long claim against the police, it is not the end of their pursuit of justice, as their action continues against the Local Authority and its sub-contractor, in respect of their role.
This judgment, however, marks a significant development in the law of tort. The interference exception is now an established exception to the omissions principle. This considerably broadens and clarifies the burden of responsibility on the police and all other public rescue authorities. When attending the scene of an accident or emergency, they will need to be mindful of the role they adopt and the impact on other rescuers.
In this case, it was an ordinary member of the public who carried out rescue operations. However, it is at least if not more likely that this issue will arise when multiple rescue authorities attend the same scene. Better communication on scene will be essential to ensure everyone understands the role they are playing. While in this particular case the foreseeability of harm fell marginally short of being established, in many other situations it will not be; a burning building, a car crash, flooding, or a terrorist incident are but a few conceivable situations in which harm is clearly foreseeable following the displacement of on scene rescuers. Members of the public now have an additional and important form of recourse, when such harm is caused by the carelessness of public authorities. We expect that authorities will need to reflect upon and change protocols and training, to ensure these duties are met.
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