Tindall and another v Chief Constable of Thames Valley Police

A person generally owes a duty to avoid creating unreasonable and reasonably foreseeable risks of physical injury, but no duty to protect others from independently arising harm. The same principles govern public authorities and private persons.

Liability may arise under the interference principle where a defendant knows or ought to know that its conduct will put off or prevent another person from protecting the claimant. The defendant’s activity is assessed as a whole against what would have happened had it never been undertaken. An ineffectual intervention does not itself create a duty.

Assumption of responsibility ordinarily requires an undertaking to protect the claimant. Liability based on control requires control of the source of danger, not merely attendance at a related location or possession of an unexercised power.

After a motorist skidded on black ice, police officers attended the scene, displayed warning measures temporarily, requested a gritter and then left. The motorist, who would otherwise have continued trying to warn approaching traffic, departed in an ambulance. Shortly afterwards, another vehicle skidded on the same ice and collided with Malcolm Tindall’s car, killing both drivers.

Mr Tindall’s widow alleged that the police had made matters worse by displacing the first motorist’s warning efforts. Alternatively, she alleged that the officers assumed responsibility for road users or acquired a duty by taking control of the accident scene.

The High Court declined to strike out the claim or give summary judgment: [2020] EWHC 837(QB); [2021] RTR 6. The Court of Appeal allowed the Chief Constable’s appeal and dismissed the claim: [2022] EWCA Civ 25; [2022] 4 WLR 104. The central issue was whether the agreed or alleged facts could establish that the police owed Mr Tindall a duty of care.

1. Appeal dismissed. Lord Leggatt and Lord Burrows delivered a joint judgment with which Lord Hodge, Lord Briggs and Lady Simler agreed. The pleaded facts and evidence disclosed no reasonable basis on which the police owed Mr Tindall a duty of care.

2. Negligence distinguishes between making matters worse and failing to confer a benefit, including failing to protect another from harm. The relevant baseline is what would have happened if the defendant had done nothing and had never embarked on the activity in question. The activity must be viewed as a whole. A duty ordinarily arises only where the defendant’s conduct creates an unreasonable and reasonably foreseeable risk of physical injury. These principles apply equally to public authorities and private persons: paras 20–45.

3. The interference principle is part of English law. A defendant may owe a duty where it knows or ought to know that its conduct will put off or prevent another person from protecting the claimant. It is a particular instance of making matters worse, rather than a distinct exception to omissions liability. Reasonable foreseeability that the defendant’s conduct will displace the other person’s assistance is essential: paras 49–59. OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 was wrongly decided insofar as it denied that misdirecting an independent rescue service could engage this principle: para 57.

4. The attendance of the police caused the first motorist to stop warning traffic, and no express encouragement or coercion was required to establish causation. The claim nevertheless failed because the police neither knew nor ought reasonably to have known that he had been acting, or intended to act, as a rescuer. To them he appeared only as an injured accident victim. That factual lacuna was fatal to the alleged interference duty: paras 60–70. The analogous allegation concerning displacement of the fire service lacked both a pleaded evidential basis and reasonable foreseeability: paras 71–73.

5. No assumption of responsibility arose. The police made no promise or assurance to Mr Tindall and had no interaction with him or other later road users on which they could rely: paras 75–77.

6. Control of the place where the first car came to rest was not control of the patch of ice which constituted the source of danger. The police neither inspected nor cordoned off that hazard. Merely possessing a power of control, or taking temporary and ultimately ineffectual precautions, could not create a duty to protect road users: paras 78–84. Police status could not independently establish a duty consistently with Michael v Chief Constable of South Wales Police [2015] UKSC 2: paras 85–87.

1. United Kingdom Supreme Court: The claimant’s appeal was dismissed unanimously. The Court of Appeal’s summary disposal of the negligence claim was upheld: [2024] UKSC 33.

2. Court of Appeal: The Chief Constable’s appeal was allowed. The court held that the facts disclosed only an ineffectual response and no assumption of responsibility or relevant control: [2022] EWCA Civ 25; [2022] 4 WLR 104.

3. High Court: Master McCloud refused to strike out the claim or give summary judgment because she considered that the issues required full examination at trial: [2020] EWHC 837(QB); [2021] RTR 6.