Duty of care owed by public bodies following Tindall

Following the Supreme Court decision in Tindall v Chief Constable of Thames Valley Police (Tindall) [23.10.24], on 15 January 2025 the Court of Appeal handed down a combined judgment for these two cases concerning whether the police may be liable in negligence for failing to protect a person from harm caused by the criminal actions of another. In both cases, the Court of Appeal found for the police.

The facts

In Chief Constable of Northamptonshire Police v Woodcock (Woodcock), the police were aware that Ms Woodcock’s former partner had been stalking her, had threated to kill her and were attempting to arrest him. On 19 March 2015 a neighbour made a 999 call reporting him loitering outside her house. She said she did not have Ms Woodcock’s number and didn’t want to get involved. The call handler advised that officers would “go straight round”. However, they did not call Ms Woodcock to inform her of the risk. Before officers arrived, Ms Woodcock left the house and was stabbed repeatedly. She alleged that the Chief Constable owed her a duty of care to protect her from the attack.

In CJ and others v Chief Constable of Wiltshire Police (CJ and Others), in December 2012 the police received a laptop containing indecent images of children suspected to have been downloaded by BP who had previously been imprisoned for sexual offences. The investigating officer arranged for the laptop to be examined. This was not completed until April 2014 and further indecent images were found. In August 2013, the officer closed the investigation because he “wanted an inbox that made him and his team look good.” In May 2014 the officer received the examination report which suggested that BP’s son MP was the person who had downloaded the images. The officer failed to take any further action. MP was subject to enhanced DBS checks and had been able to secure work as a childminder. In 2015 the claimants made reports that MP had abused them. He pleaded guilty to 40 serious sexual offences. The claimants alleged that the Chief Constable owed them a duty of care to prevent the abuse.

The general principle

As was reaffirmed by the Supreme Court in Tindall, the general rule is that a person has no common law duty to protect another 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. The liability of public authorities in negligence is governed by the same principles that apply to private individuals.

There are exceptions to the general rule including where a defendant has assumed responsibility to protect a person from harm or has control of the third party.

In Tindall, the judges went on to approve the “interference principle” that if A knows or ought to have known that B is in need of help to avoid some harm, and A knows or ought to have known 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 that she needs. This is an illustration of the duty not to make matters worse.

Decisions at first instance

In Woodcock, the court at first instance held that there was no duty of care. This was overturned on appeal.

Five claimants in CJ and Others brought claims under Article 3 of the European Convention on Human Rights (freedom from inhuman and degrading treatment).  Only two pursued a claim in negligence.

The judge at first instance found that had the officer acted effectively, the abuse would have been avoided. However, this was a pure omissions case and as such, there was no duty of care in negligence.

As to the claims under Article 3, it was common ground that the abuse suffered did give rise to Article 3 harm. However, the investigation could not amount to an Article 3 investigation because the harm had not yet occurred so there was no “real and immediate risk” of ill treatment in breach of the Article.

The decision of the Court of Appeal

In Woodcock, the Court of Appeal held that the circumstances did not fall outside of the general principles or amount to exceptional circumstances justifying a finding of liability. It will usually be necessary when asserting an assumption of responsibility to show a specific representation or promise made to take particular action which was relied on. There was no such promise here and the words to the neighbour were not sufficient.

The court further rejected the assertion that the interference principle had been invoked. There was no evidence that the neighbour would have taken protective action, or that the police could reasonably have foreseen the call handler’s words would have caused her to refrain from doing so.

In CJ and Others, the Court of Appeal concluded that the officer’s failings were omissions which had not made matters worse. The general rule applied and as such there was no duty of care.

As to Article 3, the judges agreed with the decision below; a general future risk is not sufficient to engage the investigative duty because it would not satisfy the requirement of a “real and immediate” risk of ill treatment.

Comment

Following the recent Supreme Court decision in Tindall, this decision helpfully applies the principles to two different factual situations. The decision provides another stark reminder of the very limited circumstances when the police and other public officers will owe a duty of care for failing to protect another from harm.

Whilst a failure to act may give rise to disciplinary investigations, it will not usually give rise to liability in the tort of negligence unless it falls into one of the limited exceptions.

Nichola and Rebecca are part of Kennedys’ blue light team supporting our clients in the public and emergency services.