From: James Lee
<james.lee@kcl.ac.uk>
Sent: Wednesday 23 October 2024
10:21
To: obligations@uwo.ca
Subject: UK Supreme Court on Duty
of Care
Dear Colleagues,
The UK Supreme Court has today given judgment in yet
another public authority duty of care case, Tindall v Chief Constable of Thames
Valley Police, concerning omissions and assumption of responsibility. The
judgment is here https://www.supremecourt.uk/cases/docs/uksc-2023-0059-judgment.pdf
Mr Tindall died in a road traffic accident when his
car collided with a car driven by a Mr Bird (who also died), whose vehicle and
veered out of control having skidded on black ice.
An hour before that accident, there had been an
earlier accident at the same point in the road, caused by the same black ice. A
Mr Kendall had suffered injuries when his car rolled over and was not taken to
hospital. The police had responded to Mr Kendall s accident, putting up a
Police Sign while they attended to clearing debris from the scene. They
arrived twenty minutes after the first accident, were there for twenty minutes
and then left, taking the sign with them. They did nothing about the black ice
itself. The fatal accident occurred twenty minutes later.
The claim was brought by Mrs Tindall s widow, alleging
that the police s conduct on those facts was negligent.
The Court of Appeal had held that no duty was owed,
with Stuart-Smith LJ giving an impressive judgment https://www.bailii.org/ew/cases/EWCA/Civ/2022/25.html,
concluding that there was no duty owed on the facts and the claim should be
struck out ([2022] EWCA Civ 25 at [73]-[74]:
There is nothing in the pleaded facts that could
justify a finding that the police assumed responsibility to Mr Tindall or other
road users. There is no feature differentiating the relationship of the police
with Mr Tindall from their relationship with any other road user. There was no
arguable pre-existing relationship between the police and Mr Tindall
What occurred was a transient and ineffectual response
by officers in the exercise of a power. It did not involve any assumption of
responsibility to other road users in general or to Mr Tindall in particular
for the prevention of harm caused by a danger for the existence of which the
police were not responsible. To hold otherwise would, in my judgment, be
inconsistent with the decisions and principles set out in East Suffolk, Stovin,
Capital & Counties and Gorringe.
The Supreme Court has now considered the case, with
Lord Burrows and Lord Leggatt giving the judgment. The Court unanimously
dismisses the appeal, holding that the police did not owe a duty of care and
could not be said to have made matters worse:
[20]
There can be no doubt on these facts that the failure of the police officers
to take steps to protect road users from the danger posed by the ice hazard to
which the officers had been alerted was a serious dereliction of their public
duty owed to society at large. But as noted at the start of this judgment, it
does not follow that they were in breach of a duty of care in the tort of
negligence owed to particular individuals.
The Court summarises principles from the relevant
authorities at [44]-[45], emphasising the need to view the activity as a whole.
However, the Court accepts, it says, for the first
time, on the basis of the so-called interference principle here the
argument was that the police had interfered as Mr Kendall had been warning
other drivers of the black ice danger, and he stopped after that. The work of
various members of this list and other academic colleagues is cited
particularly Tofaris & Steel, and McBride & Bagshaw. The Justices
state:
[56]
Despite the authors recent misgivings, we consider that the interference
principle articulated by McBride and Bagshaw is a correct statement of English
law. Although there has been no previous English case clearly accepting and
applying this principle, it is an alternative way of rationalising the result
in Kent v Griffiths and one which this court has endorsed in Darnley. It
follows in any case from first principles. It is simply a particular
illustration or manifestation of the duty of care not to make matters worse by
acting in a way that creates an unreasonable and reasonably foreseeable risk of
physical injury to the claimant. There is no reason in principle why the
conduct which creates this risk should not consist in acts which are foreseeably
likely to have the effect of putting off or preventing someone else from taking
steps to protect the claimant from harm. Although it did not involve putting
off another person s intervention, the interference by the fire officer in
turning off the sprinklers in Capital & Counties is analogous. The
sprinklers would otherwise have contained the fire and, by turning them off,
the fire service prevented that containment and so made matters worse. There is
no material distinction between diverting or displacing an object from
protecting the claimant from harm and diverting or displacing a person from
doing so.
[58]
We also agree with the claimant that the detailed formulation of the
interference principle by McBride and Bagshaw is correct. In particular, it is
not enough to show that the defendant has acted in a way which had the effect
of putting off or preventing someone else from helping the claimant. Rather, in
line with the well-established approach to establishing any duty of care, for a
duty of care to arise it is necessary to show that the defendant knew or ought
to have known (ie that it was reasonably foreseeable) that its conduct would
have this effect. 59. When questioned by the court, Nicholas Bowen KC for the
claimant rightly accepted the consequence that, to succeed in this case, the
claimant would need to show that the police knew or ought reasonably to have
known that their conduct had or might have had the effect of putting off or
preventing Mr Kendall from warning other motorists of the ice hazard. At this
stage in the analysis, however, the claimant runs into a major factual
difficulty.
On the facts the Supreme Court holds that that this
did not apply, as the police did not know and could not have known that Mr
Kendall was warning drivers in this way, as opposed to being a victim.
The Court then determines (from [74]ff) that none of
the potential exceptions justifying the imposition of a duty of care there
was no assumption of responsibility by the police (which was not in any event
emphasised by the claimant), nor had the police taken control of the scene:
[83]
The claimant s allegation that the police took control of the accident scene
glosses over this point. In so far as the police can be said to have taken
control of the scene of the accident, the scene in question was where Mr
Kendall s car was located. It is not alleged that the police did anything which
could on any view be characterised as taking control of the patch of ice which
represented the source of danger. On the contrary, one of the criticisms made
of the police is precisely that they did nothing at all about that source of
danger. They did not cordon off or close the road. There is no suggestion that
they even went to inspect the ice. Indeed, a major complaint is that the police
were negligent in failing to inspect the ice or take other necessary measures.
That cannot be turned around to say that there was a duty of care consequent on
their having taken control of the patch of ice.
The willingness of the Court in principle to accept
the interference principle perhaps explains why the Court granted permission
in this case, when the Justices were otherwise always likely to dismiss the
appeal given recent UKSC authority (eg Robinson, Poole and HXA), and the
clarity of the Court of Appeal judgment in this case.
Best wishes,
James
-
James Lee
Professor of English Law
The Dickson Poon School of Law
Somerset House East Wing
King's College London
Strand
London WC2R 2LS
E-mail: james.lee@kcl.ac.uk
Are you a student? Can I help? My feedback,
advice and support hours (in room SW1.12) for the autumn term are Thursdays
10am-12pm and Fridays 2-3pm.
Otherwise, please just get in touch and we
can find a mutually convenient time to meet.
Watch: James Lee, 2024
Judge Ian Borrin Lecture, Once Upon a Time in the Common Law: Institutional
Narratives and Legal Change https://www.youtube.com/watch?v=GxYsLTx2FzE
Just Published! Jamie Glister and
James Lee, Hanbury & Martin s Modern Equity, 23rd edition, Sweet
& Maxwell, September 2024
