The Court of Appeal and Assumption of Responsibility – When do Public Authorities owe a Duty of Care?

Recent Developments: Tindall & Anor v Chief Constable of Thames Valley Police & Anor [2022] EWCA Civ 25

 

Summary

In Tindall, the Court of Appeal outlined the authorities and principles to be applied when considering arguments in relation to an assumption of responsibility by public authorities. Specifically, the Court considered whether the police had a duty to exercise reasonable care to protect an individual member of the public from harm following an alleged assumption of responsibility.

Black ice on a fast, country road had caused a road traffic accident. The police attended the scene. As a public authority, they had a duty not to make things worse. They left the road as they had found it. In doing so, they failed to “confer a benefit” (see Tindall 67). The Claimants alleged that this was negligent, and that the Chief Constable was vicariously liable to the Claimants in tort given that, 20-25 minutes later, another road traffic accident occurred.

In respect of the proceedings, a claim in negligence was brought by Mr Tindall’s widow. She sought substantial damages against both Thames Valley Police and the Highway Authority. The Chief Constable made an application to strike out the claim. This was refused by Master McCloud. She found that it was not “fanciful” that the police may have assumed a duty of care and, by attending the scene of the accident, made matters worse. The appeal went directly to the Court of Appeal by way of a leapfrog appeal.

 

The Facts

At about 5:45am on 4 March 2014, a fatal road traffic accident occurred on the A413 between Wendover and Amersham. Tragically, two drivers – Mr Tindall and Mr Bird – were killed in a head-on collision. The accident was caused when Mr Bird’s car went out of control on black ice.

About an hour earlier, another accident had been caused by black ice on the same stretch of road. Mr Kendall, the driver of the car involved in the first accident, ended up in a ditch having lost control. He suffered non-life-threatening injuries and was taken to hospital. However, before being taken to hospital, Mr Kendall – who was very concerned that the unexpected black ice would cause another accident – started to warn other vehicles of this danger by signalling to them to slow down. Mr Kendall gave evidence that, but for the arrival of the police officers, he would have continued to warn subsequent motorists about the danger of the black ice.

The first accident was attended by police officers from Thames Valley Police. The Chief Constable was responsible for them. When they arrived at the scene of the accident, Mr Kendall stressed to them that the black ice posed a dangerous situation. When making his emergency call, he had also stressed this. The police arrived about 20 minutes after Mr Kendall’s accident. They put up a “Police Slow” and cleared the debris on the road. They then removed the “Police Slow” sign and left the scene of the accident. No effective steps were taken to remove the original danger. About 20 minutes later, there was a fatal accident. It was caused by the patch of black ice that Mr Kendall had warned the police about.

 

The Outcome

The Court of Appeal struck out the claim. It was held that the police officers who attended Mr Kendall’s road traffic accident – which had been caused by the patch of black ice – did not owe a duty of care to make the road safer for later motorists. This is so even though the police may have prevented the later fatal road traffic accident caused by black ice had they done more – by, for instance, waiting with “Police Slow” signs until the arrival of a gritter.

The Claimants argued that the police, by virtue of attending at the first accident, had made matters worse. That argument was rejected by the Court of Appeal. It was held that the officers, despite attending at the earlier accident, had done nothing which either created or increased the original hazard posed by the black ice on the road. Put simply, the police officers in attendance at the scene had left the road as they found it. The Court of Appeal held that “in general the duty of the public authority is to avoid causing damage, not to prevent future damage due to causes for which they were not responsible.” (see Tindall at 54) This is because “it is not sufficient that the police are specifically alerted and respond to the risk of damage to identified property… or injury to members of the public at large… or to an individual.” (see Tindall 54)

The Court of Appeal also rejected the Claimants’ argument that the police had assumed a duty of care. Although the police, as a public authority, had knowledge of the danger – and the power to deal with it – that, in and of itself, does not amount to an assumption of responsibility. The police officers had been entitled to leave the scene of the accident at the time they did. This is notwithstanding the fact that Mr Kendall had hoped the police would stay and continue to warn motorists of the dangerous situation caused by the presence of the black ice.

Mr Kendall’s hopes did not align with a duty on the police to act in a particular way. The Court of Appeal held that “mere arrival of a public authority upon, or presence at, a scene of potential danger is not sufficient to found a duty of care even if members of the public have an expectation that the public authority will intervene to tackle the potential danger.” (see Tindall at 54). There are limited circumstances in which the police or a public authority will be held to have assumed a duty of care to an individual member of the public to protect them from being harmed by things that are not their fault.

The Claimants further argued that, because the police had the power to exercise control over the accident scene, they had come under a duty of care. That argument was also rejected by the Court of Appeal. It was held that “where a statutory authority (including the police) is entrusted with a mere power it cannot be generally be made liable for any damage sustained by a member of the public by reasons of a failure to exercise that power.” [see Tindall at 54].

In deciding to strike out the case, the Court of Appeal, having considered common law principles, held that the Claimants’ case was bound to fail. In those circumstances, a strike out was appropriate because there was no need for there to be a trial of the facts.

 

Comment

The Court of Appeal concluded by stating that “the law is not in a state of flux.” Rather “the law is settled by successive decisions that are binding upon this court.” [See Tindall at 75]

The Court of Appeal considered this case to be “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.” [See Tindall at 67] The Court of Appeal have made it clear that “merely acting ineffectually” is unlikely to lead to public bodies being found liable [see Tindall at 54]. Crucially, this decision confirms that the test for the relevant public authority is whether they have made the situation worse. A “transient and ineffectual” intervention by a public authority will not normally lead to an assumption of responsibility [see Tindall at 74].

The Court of Appeal’s decision has very practical implications for police officers – many of whom are often faced with having to attend a large number of road traffic accidents on every shift. They will be able to attend a scene, take control of it, deal with it as they sit fit, and move on. They must, though, not make things worse. If the intervention of the police was “ineffectual”, the Court is also likely to consider whether it was “transient”. “Transient” responses are unlikely to lead an assumption of responsibility, particularly in cases where the police have not made things worse.

In summary, this is a decision that will be welcomed by not just the police but by public authorities more widely. In the same vein, this case makes it significantly harder for Claimants to establish that, where “a public authority has the power to prevent harm”, they have a duty of care to prevent one individual being harmed by another person [see Tindall at 71]. In view of what the Court of Appeal described as “the firmly established principles that are set out in and derived from the authorities”, only the Supreme Court could reconsider the position.

 

Case review by Richard Ive, a Third-Six pupil at Farrar’s Building.

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