Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33 is an important, unanimous decision of five judges (Lord Hodge DPSC, Lord Briggs, Lord Leggatt, Lord Burrows and Lady Simler JJSC) sitting as the United Kingdom Supreme Court.  The Supreme Court replaced the House of Lords as the court at the top of the UK judicial hierarchy, so it sits in the equivalent position to the High Court of Australia.  The Australian common law was inherited from the UK.  Even though the law has developed in each country, so the common law of Australia is no longer necessarily the same as the common law in the UK, the principles are not wildly different and decisions from superior courts such as the Supreme Court remain persuasive in Australia.

In this case the Chief Constable was sued after a fatal motor accident.  At 3.40am on 4 March 2014 a Mr Kendall was involved in an accident when he lost control whilst driving over a patch of black ice.  He got out of his car and waved at other vehicles. He said (at [5]) ‘he was trying to encourage them to stop, or at least to slow down, in order to avoid the risk of a further accident’.  He tried to wave down a van but when that did not work, he rang police.  Whilst speaking to the police call taker ‘few more vehicles passed by … but he did not try to stop them as he was engaged on the phone. The call handler asked him to stay on the phone, and he did so, until the police arrived at the scene’ ([64]). Police, ambulance and fire crews attended the scene. Whilst on scene police activated their blue emergency lights and put out a sign advising drivers to proceed slowly ([7]-[9]).  At 5:26am Mr Kendall was transported from the scene by ambulance, the fire service and police packed up including the ‘Police Slow’ sign and left the scene ([11]).

Sometime between 5:45 and 5:52am Mr Bird travelled along the same stretch of road, came across the same patch of black ice and lost control of his car. He crossed onto the wrong side of the road and collided with the vehicle driven by Mr Tindall.  Both Mr Bird and Mr Tindall died ([12]).  Mr Tindall’s widow sued the Chief Constable alleging negligence by the police officers who attended but who took no steps to put in place a warning to other road users or to remain on scene until the roads authority could attend to deal with the ice.

An investigation by the Independent Police Complaints Commission (IPCC) ([14]):

… concluded that the officers had a case to answer for gross negligence manslaughter and misconduct in public office. The case was referred to the Crown Prosecution Service, which decided not to prosecute the officers. Their conduct was, however, the subject of disciplinary proceedings. The police disciplinary tribunal found that PCs Irwin and Flanagan were guilty of misconduct and PC Stamp of gross misconduct. …  The tribunal found, in particular, that there had been errors by the police officers in the discharge of their duty to carry out an investigation at the scene of an accident as trained; and that PC Stamp, without knowing whether a gritter was on its way, should have re­evaluated the situation and done more.

A jury in a coroner’s inquest found (at [15]):

… that the following actions should have been carried out after Mr Kendall’s accident: appropriate signs should have been placed; gritters should have been requested and the police should have stayed at the scene until the gritters arrived; the road should have been closed; and appropriate support should have been requested.

But did that mean the police owed a common law duty of care to Mr Tindall that gave rise to liability to pay damages? The Supreme Court said ‘no’.

The Court’s reasoning

The Court began with this important statement:

It has long been recognised that the tort of negligence draws a fundamental distinction between acts and omissions or, in the more illuminating language adopted in recent years, between making matters worse (or harming) and failing to confer a benefit (or to protect from harm). As a general rule, a person has no common law duty to protect another person from harm or to take care to do so: liability can generally arise only if a person acts in a way which makes another worse off as a result. In recent years this distinction has taken on added significance because it is now firmly established (or re-established) that the liability of public authorities in the tort of negligence to pay compensation is governed by the same principles that apply to private individuals. Many public authorities – notably, protective and rescue services such as the police force and fire brigade – have statutory powers and duties to protect the public from harm. But failure to do so, however blameworthy, does not make the authority liable in the tort of negligence to pay compensation to an injured person unless, applying the same principles, a private individual would have been so liable. That means that to recover such compensation a claimant generally needs to show that the public authority did not just fail to protect the claimant from harm but actually caused harm to the claimant.

The court (at [20]) quoted Michael v Chief Constable of South Wales Police [2015] UKSC 2 [114] where from Lord Toulson said:

It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.

The court acknowledged that it can be hard to draw the line between whether the defendant’s conduct has failed to help, or has made the situation worse.  The Court said (at [44]):

The cases show that the relevant comparison is with what would have happened if the defendant had done nothing at all and had never embarked on the activity which has given rise to the claim. The starting point is that the defendant generally owes no common law duty of care to undertake an activity which may result in benefit to another person. So it is only if carrying out the activity makes another person worse off than if the activity had not been undertaken that liability can arise.

The Supreme Court endorsed a legal principle that says there can be exceptions to the rule that there is no duty to protect people from harm.  At [42] they cited ‘… an article by Stelios Tofaris and Sandy Steel, “Negligence liability for omissions and the police” (2016) 75 CLJ 128’ where the authors said:

In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.

The claimant’s case

The claimant argued ([46]) that the police made the situation worse by encouraging Mr Kendall to leave in the ambulance.  If the police had never arrived, he would have remained on scene attempting to warn other drivers of the hazards.  Whilst the police were not there someone was attempting to warn traffic; when police left there was no-one so the risk to other road users was increased by the action of the police.  This, it was argued, was an example of the police having ‘done something which prevents another from protecting B from that danger’ and therefore an exception to the rule that there is no duty to prevent harm.  This is described (at [50]) as the ‘interference principle’ (citing Nicholas McBride and Roderick Bagshaw Tort Law (Pearson, 6th ed, 2018, pp 213-217):

“[I]f A knows or ought to know that B is in need of help to avoid some harm, and A knows or ought to know that he has done something to put off or prevent someone else helping B, then A will owe B a duty to take reasonable steps to give B the help she needs.

The court said (at [56]):

… we consider that the “interference principle” articulated by McBride and Bagshaw is a correct statement of English law… 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…

They added (at [58]):

… 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.

In this case Mr Kendall stopped trying to warn others when he rang police and certainly when he agreed to go to hospital by ambulance he may have expected that police would continue to warn others of the risk of ice ([48]).  But the police did not know (as he did not tell them) that he had been trying to warn traffic.  At [62] the court said:

There is no pleaded allegation that the police were aware that, before calling 101, Mr Kendall had been attempting to warn other motorists of the ice hazard. Nor is it alleged that Mr Kendall said anything to the call handler or to any of the police officers who attended the scene of his accident to suggest that he had any intention of making such attempts. Nor are any other facts alleged from which such an intention could reasonably have been inferred… As far as the police were concerned, Mr Kendall was someone who had been injured in an accident and no more than that. He was a victim, not a rescuer.

Because the police did not know, nor ought to have known, that by encouraging Mr Kendall to leave they were ‘doing something to prevent [Mr Kendall] helping [other road users]’ there was no relevant duty of care.

The other exceptions

The other exceptions identified by Tofaris and Steel (quoted above) also did not apply.

Assumption of responsibility

The police did not assume any responsibility to protect Mr Tindall.  At [76] the court said:

The basic stumbling-block for any argument based on assumption of responsibility in this case is the complete absence of any communication or interaction between the police officers who attended the scene of Mr Kendall’s accident and Mr Tindall. The police officers did not say or do anything of which Mr Tindall (or other motorists who drove along the relevant section of road after the police had left) were aware, or on which they could have relied. We find it impossible to see in these circumstances how an assumption of responsibility could be said to arise.

Control

The police may have taken control of the accident scene but that was some 184 meters away from the ice, that is if they took control, they took control where Mr Kendall’s care had come to rest.  At [83]-[84]:

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.

Counsel for the claimant rightly eschewed reliance on any argument that the existence of a power of control, without an actual exercise of control, is capable of giving rise to a duty of care.

Special status

The police and fire services are established by statute to provide vital public services, but previous cases have established that whatever their status the police do not by virtue of their status owe a relevant duty of care.

Outcome

The outcome was that the police, even if they had been derelict in their duties did not owe a common law duty to Mr Tindall and there was no legal obligation to pay damages.

Implications for Australia

As noted, this case is not binding in Australia but decisions of the UK Supreme Court are persuasive. The finding about no duty to prevent harm, as opposed to a duty not to cause harm or make the situation worse, are consistent with Australian authorities such as Stuart v Kirkland-Veenstra [2009] HCA 15 and Ibrahimi v Commonwealth of Australia [2018] NSWCA 321 (discussed in my post No duty to prevent a disaster and no duty to rescue (December 26, 2018)).

Interestingly it may be that the principles identified by Tofaris and Steel may make their way into explicit statements of Australian law.  The interference principle may have implications for emergency services if we consider the issue of community response and spontaneous volunteers.

Australian emergency services generally have powers to exclude people from areas impacted by emergencies.  It is however common to say that ‘first responders are always local’.  The first people on the scene are those closest to the scene, not the fire brigades, police or ambulance service.  There may be a temptation to direct these people to leave the scene to allow the jurisdictional services to take control, but it would be prudent to consider whether they are doing a good job and whether the emergency services have the capacity to do whatever it is they are doing.  If they are helping, removing them might deny someone assistance that the services cannot provide may be an example of ‘interference’.   That would be true whether they are performing first aid, directing traffic, or conducting a rescue. Of course, if they are an actual hinderance it’s a different matter, but it certainly implies that it is not prudent to assume everyone is a problem and should be removed.

The control issue is also important, and it reminds me or arguments particularly relevant to fire authorities.  Arguments have been made that they are ‘in control’ of the fire (see West v NSW [2014] ACTCA 45; Warragamba Winery v NSW[2012] NSWSC 70) but of course they’re not, they’re in control of the response to the fire but fires, particularly those marked ‘out of control’ are by definition not under the control of anyone thereby decreasing the chance of liability for failing to prevent damage by fire.

Conclusion

This case is not an Australian legal authority but the reasoning is consistent with Australian legal principles and it is likely to be persuasive in Australian law should the right case arise here.  It certainly confirms the principle that the law of negligence does not generally impose a duty on anyone – individual or government authority – to prevent harm from occurring to others. The duty is a duty not to cause harm. Emergency services are rarely the cause of the harm to others so they are under a duty, by their presence, not to make the situation worse. They are not under a legal duty to make it better.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.