And To Make Matters Worse… Guidance on Establishing a Duty of Care by a Public Authority

A ‘public authority’ is generally an entity which possesses the power and ability to intervene in a variety of situations where a private entity would be unable to. Of course, as the saying goes, ‘with great power comes great responsibility’. Plainly, that applies were a public authority has positively acted, and in doing so, causes direct harm to someone because that action was negligent. But does responsibility also manifest where a public authority fails to use its powers effectively?

That was the question posed in the recent Court of Appeal decision of Tindall v Chief Constable of Thames Valley Police [2022] EWCA Civ 25. The judgment can be found here.

The Facts

In the early hours of 4 March 2014, the police had attended the scene of a non-fatal road traffic accident which had been caused by the presence of black ice on the road surface. Prior to the police’s arrival, one of those involved in that collision, Mr Kendall, had remained at the roadside to warn other vehicles of the presence of the ice. The police then placed a ‘Police Slow’ sign on the road, those involved in the collision were taken to hospital and the vehicles removed from the scene, with the police having been made aware of the location of the ice patch by Mr Kendall. The police then cleared the road of debris and removed the sign they had put out and left the scene. Around 25 minutes later, Mr Tindall was driving along the road when he also became involved in a road traffic accident caused by the same bit of black ice which had caused the first accident. Tragically, Mr Tindall, and the driver of the other vehicle involved in the collision, were killed in that collision.

Mr Tindall’s Claim against the Police

Mr Tindall’s estate brought proceedings alleging that the Police had assumed a duty of care from their attendance at the first accident and owed the Claimant a duty not to make things worse. Mr Tindall also pursued the local Highway Authority as part of the same action though this was not considered for the purposes of this judgment.

Further to the case against the Police, it was alleged that the officers had ineffectively exercised their powers in dealing with the black ice, and thereby made matters worse, by; (a) causing, by their presence, the previous motorist, Mr Kendall to cease his attempts at slowing approaching traffic down (it being accepted that the officers had not positively requested or tried to persuade him to cease that action), (b) removing the Police Slow sign which gave warning to fellow road users, and (c) by not attempting to take any steps to ensure that the black ice was removed or, at least, made less hazardous to motorists, or alternatively closing the road.

The Police’s application to strike out

The Police applied to strike out the claim arguing that there was no reasonable argument that the Police had a duty of care to Mr Tindall. It was argued that:

• As with private individuals, public authorities do not owe a duty to protect others from harm. The only exception to that would be where the public authority positively made matters worse.
• In respect of the involvement of Mr Kendall, the fact that they did not persuade or order him to leave the scene, meant that this aspect did not apply, even if that could be argued as ‘making matters worse’.
• Likewise, the removal of the sign the officers had placed, did not make matters worse. The road was merely restored to the condition in which they found it.
• There was no special relationship between the Police and Mr Tindall which warranted the imposition of an assumed duty, and they had no control over the hazard which had formed.

At a first hearing, before Master McCloud, the application was dismissed.

The Police’s Appeal

Stuart-Smith LJ outlined the principles which he derived from previous authorities when considering whether the Police ought to be taken to have a duty to exercise reasonable care and to protect an individual from harm. In his view, those were as follows:

“i) Where a statutory authority (including the police) is entrusted with a mere power it cannot generally be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. In general the duty of a public authority is to avoid causing damage, not to prevent future damage due to causes for which they were not responsible: see East Suffolk, Stovin;

ii) It follows that a public authority will not generally be held liable where it has intervened but has done so ineffectually so that it has failed to confer a benefit that would have resulted if it had acted competently: see Capital & Counties, Gorringe, Robinson;

iii) Principle (ii) applies even where it may be said that the public authority’s intervention involves it taking control of operations: see East Suffolk, Capital & Counties;

iv) 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: see Stovin;

v) 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 Capital & Counties, Sandhar;

vi) The fact that a public authority has intervened in the past in a manner that would confer a benefit on members of the public is not of itself sufficient to give rise to a duty to act again in the same way (or at all): see Gorringe;

vii) In cases involving the police the courts have consistently drawn the distinction between merely acting ineffectually (e.g. Ancell, Alexandrou) and making matters worse (e.g. Rigby, Knightly, Robinson);

viii) 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. It is not sufficient that the police are specifically alerted and respond to the risk of damage to identified property (Alexandrou) or injury to members of the public at large (Ancell) or to an individual (Michael);

ix) In determining whether a public authority owes a private law duty to an individual, it is material to ask whether the relationship between the authority and the individual is any different from the relationship between the authority and other members of the same class as the individual: see Gorringe, per Lord Scott.”

Having drawn that line of authority together, the Court of Appeal over-turned the decision of the Master and allowed the Police’s application. In short, the Court disagreed with the Claimant that the individual or collective actions of the officers had ‘made matters worse’ in the ways that the Claimant alleged, and there was no other viable basis to impose a duty of care on the facts of this case.

Comment

The conclusions of the Court of Appeal did not say that the actions of the officers had not been ineffectual or failed to confer a level of safety benefit to road users of the road which would reasonably have been expected – indeed both were accepted by all as fair criticism of what had happened. But that does not circumvent the first condition requiring the establishment of a duty of care. In this case, the undoubted failings of the officers were simply not committed in a situation where there was either a duty of care, or an assumed duty of care by the Police. What was missing was evidence that the actions which had been taken by those officers had positively ‘made matters worse’ such as would have triggered that duty of care as indeed happened in Robinson v Chief Constable of West Yorkshire Police [2018] AC 736. That is the ‘take home’ point from Tindall, and one which needs a careful analysis in cases involving failings by public authorities.