Further developments in ‘failure to remove’ claims

Tindall and another v Chief Constable of Thames Valley Police and another [19.01.22]

Following a number of first instance decisions last year which focused predominantly on assumption of responsibility, this case now provides some welcomed clarity around other possible exceptions when dealing with duty of care issues.

Background

The claim did not involve social services but followed a fatal road traffic accident on 4 March 2014. Mr Bird lost control of his vehicle due to black ice and collided with Mr Tindall’s vehicle. Both parties were sadly killed.

There had been a road traffic accident on the same stretch of road an hour earlier. Mr Kendall had also lost control of his vehicle due to black ice and sustained non-life-threatening injuries. Before leaving the scene, Mr Kendall had warned other road users to slow down. Police officers attended,  placed “Police Slow” signs and cleared debris from the road. They left the scene approximately 20 minutes before Mr Tindall’s accident having removed the “Police Slow” sign.

It was alleged by Mr Tindall’s wife, who was pursuing the claim on behalf of Mr Tindall’s estate, that the police officers were negligent for leaving the scene of the first accident, by removing the warning sign and halting Mr Kendall’s attempts to warn road users of the danger.

The Chief Constable applied to strike out the claim against the police on the basis that it disclosed no reasonable cause of action or, alternatively, for summary judgment. Both applications were refused resulting in an appeal which was directed to the Court of Appeal.

Court of Appeal decision

The appeal, pursued on two primary grounds, was successful.

Ground 1: Notwithstanding that the police had attended the scene prior to the fatal accident, it was submitted that they did nothing which increased the pre-existing hazard.

The claimants submitted that the police made matters worse by causing Mr Kendall to leave the accident scene, thereby preventing him from continuing to warn other road users of the dangerous road conditions and in removing the warning signs which they had previously erected. The Court of Appeal rejected this submission as by the time Mr Kendall left the scene in an ambulance, the police had not done anything that could reasonably be described as negligent.

Further, the court considered the removal of the sign was a failure to confer a benefit but it did not make matters worse.

Ground 2: It was wrong to conclude that the police offices owed a duty of care on the basis that they had assumed responsibility of the location, having attended prior to the fatal accident.

The Court of Appeal did not accept the claimants' submission that a duty can arise in circumstances.

Where a defendant had the power to exercise physical control, or at least influence, over a third party, including a physical scene (such as the accident scene in the present case) and, absent their negligence, ought to have exercised such physical control.

To impose such a duty would mean that whenever a public authority has the power to prevent harm and, if acting competently, ought to have prevented it, then a duty of care to prevent the harm arises.  This was too wide reaching and contrary to firmly established principles.

Given these findings, the Court of Appeal found no reason why there needed to be a trial of the facts and the strike out application was successful.

Comment

This judgment confirms that although the police officers could have done more, there was no duty to do so.  They had not undertaken a positive act that made the situation worse. They had not assumed responsibility for Mr Tindall by clearing the road following the first accident and they did not cause or contribute to Mr Tindall’s accident. The road conditions were the road conditions regardless of the police officers’ actions.

In the context of failure to remove cases, this case makes it clear that allowing an already established danger to continue is not the same as a positive act which creates a danger. Therefore, although each case turns on its own facts, so long as the local authority has not made the situation worse the claim should be capable of being repudiated.

This decision provides further guidance and clarity in what is becoming a more settled area of law, which will no doubt be welcomed by local authorities.

Related item: Judicial clarity provided on the Human Rights Act and ‘failure to remove’ cases