The duty of care owed by public authorities

It is well known that a duty of care in negligence does not usually arise for failing to protect another from harm, as opposed to actually causing harm. The general rule is subject to limited exceptions, such as where a defendant has “assumed responsibility” to a claimant. In recent years, a number of court decisions at the highest level have clarified the application of this general principle in a public authority context.

In Michael v Chief Constable of South Wales [2015], the Supreme Court held that the defendant police force did not owe a duty of care to protect the claimant from her ex-partner who had threatened to and sadly did kill her. Lord Toulson explained that as a general rule, there is no liability on a defendant for injury caused to a claimant by a third party, unless they are in position of control over the third party or have otherwise assumed a positive responsibility to safeguard the claimant.

In CN and GN v Poole Borough Council [2019), the Supreme Court similarly found no duty on the part of the defendant local authority to protect the claimants from harm from abusive neighbours. This was a case of “failure to confer a benefit” where no duty was generally owed. Social Services was involved with the family but investigating and monitoring the claimants’ position did not generate an assumption of responsibility for their safety. The reasoning was followed in the recent conjoined 2023 appeals of HXA and YXA where the Supreme Court again found no duty of care was owed to protect the claimants from harm in a social services context – this time it was abuse within the family home. Again these cases involved failing to confer a benefit. There was no relevant assumption of responsibility in either case despite years of involvement by social services in HXA and some period of respite accommodation by the local authority in YXA.

Tindall v The Chief Constable of Thames Valley Police

This is the latest decision on liability in negligence of public authorities. The court found in favour of the defendant.

In March 2014 a road traffic accident occurred involving one vehicle driven by Mr Kendall on a patch of black ice. He was not seriously injured and was able to wave at other vehicles to warn them of the danger and call the police. He was met by fire and ambulance crews and a “police slow” road sign was positioned in the carriageway whilst paramedics attended to Mr Kendall. He was taken to hospital and the police removed the sign and returned to their station. About 20 minutes later a fatal accident took place meters away on the same stretch of ice. Both drivers were killed, one of whom was Mr Tindall.

The Independent Police Complaints Commissioner (IPCC) concluded that the police officers had a case to answer for gross negligence manslaughter and misconduct in public office. However, the Crown Prosecution Service decided not to prosecute. All three officers were subjected to misconduct proceedings which concluded that they should have done more. This was also the conclusion of the jury at the inquest who found that signage should have been placed; gritters should have been requested and that officers should have stayed at the scene; the road should have been closed and support requested.

Mrs Tindall brought a claim in negligence on the premise that the police in failing to take steps had made matters worse once Mr Kendall was removed from the scene. Mr Kendall’s evidence was that had he remained at the scene, he would have taken steps to warn road users of the risk of the ice, thereby avoiding the accident. Alternatively, it was argued that the case fell within one of the exceptions to the general rule that no duty of care is owed to protect a person from harm.

The matter proceeded to the Supreme Court who, after reviewing the authorities, found that Kendall was entitled to expect that once the police arrived that they would take charge of the situation and alert other drivers to the danger. However, there was no evidence that the police knew or ought to have known about Mr Kendall’s intentions to warn other road users and this was described as the “fatal factual lacuna” in the claimant’s case. The police believed Kendall was a victim, not a rescuer. In the circumstances the police could not be liable for making matters worse, where it was not reasonably foreseeable their conduct would have this effect.

The Court went on to consider the exceptions to the general rule, namely:

• Had the officers assumed responsibility for Mr Tindall? No, there had been no words or conduct indicating a reliance on a promise made to take care to protect Mr Tindall from harm;
• Had the police taken control of the accident scene so as to give rise to a duty of care? No, it was accepted that the fatal accident occurred 184 metres away from the police scene and so at no point did they have control of the area. On the contrary the allegation was that they did nothing at all and therefore cannot have been said to have taken control.

Comment

Tindall v The Chief Constable of Thames Valley Police is the latest in a line of recent authorities considering when a duty of care may be owed to the public by public authorities under significant financial and resourcing restraints. The decision reinforces that such situations will be few and far between, although it is clearly fact specific.