Tindall & Anor v Thames Valley Police & Anor

A public authority ordinarily has no positive duty to protect individuals from harm. A duty of care may nevertheless arise where its intervention creates or worsens a source of danger. Whether conduct amounts to making matters worse, rather than merely failing to improve the position, is fact-dependent and may require a trial. At a strike-out or summary-judgment stage, the court should not decide that issue on assumed facts where the pleaded case has a realistic legal foundation.

The claim arose from a fatal collision on a road affected by black ice following an earlier accident. The claimants alleged that police officers attended, removed a person who was warning approaching traffic, erected and later removed a warning sign, and left without securing the hazard.

The first defendant sought strike-out and summary judgment. The central issue was whether the pleaded facts could establish a police duty of care because the police made the situation worse or assumed control and responsibility.

1. Applications dismissed. The claim was not bound to fail and was not fanciful.
2. Public authorities are generally subject to ordinary tort principles and ordinarily have no positive duty to protect others. A duty may arise where an authority takes positive steps which create or worsen a danger.
3. Whether conduct makes matters worse is fact-dependent. The distinction between an omission and a positive intervention cannot fairly be resolved on assumed facts where disputed evidence is material.
4. The pleaded conduct could constitute positive intervention: the police attended, removed a person warning traffic, erected a sign, and then removed it after taking only minimal safety measures.
5. CC Essex v Transport Arendonk BVBA supported leaving a materially similar duty question for trial. An alternative assumption-of-responsibility argument was also legally arguable, though not finally determined.

Not stated in the judgment.