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Tindall and another (Appellants) v Chief Constable of Thames Valley Police (Respondent) [2024] UKSC 33

Nicholas Bowen KC, Duncan Fairgrieve KC (hons) and David Lemer represented the Appellants in this important Supreme Court judgment on public authority liability in negligence.  

Case comment

The Tindall judgment is the first analysis at this level of (1) the test in law and fact to establish a duty of care to protect as a result of the creation / increase of a danger created by a defendant who has “made matters worse” and (2) an examination of the exceptions[1] to the omissions principle that a person is generally liable for acts that cause harm rather than omissions to assist and protect others. It represents a welcome change of direction from recent restrictive decisions in this area of the law[2] which have focused in on only the first and best-known exception, an assumption of responsibility, and is the latest in a series of cases involving public service failure to protect members of the public. 

Whilst a claim against the highway authority remains, the strike out has been upheld; a tragedy for the family who viscerally believe that it was the incompetence of the attending officers which caused / failed to prevent the ensuing double fatality. Morally the Supreme Court agreed (§14 & §20) “the failure .. to take steps to protect road users from the danger posed by the ice hazard to which the officers had been alerted was a serious dereliction of their public duty owed to society at large”.  However, it will be cold comfort that although the Justices agreed with our submissions and reversed the Court of Appeal’s reasoning on all the main legal issues, there was a factual lacuna that led to the dismissal of the claim.  This was a gap in the evidence relating to the requirement of reasonable foreseeability (see§59-66 & §68). 

The case concerned the fatal consequences of an incompetent response by police to an earlier road accident.  The Court of Appeal found it to be a paradigm example of an ineffectual response, it having been established for many years that where a statutory authority engages with the public through the exercise of public functions, the only duty owed is not to add to the damage which a person would have suffered had the authority done nothing[3].  The legal analysis should be compulsory reading for all those involved in damages claims against public bodies and is of particular importance in cases involving failures to protect and or warn in the context of the treatment of the psychiatric ill in the community, decisions of social workers and probation officers, the fire service and the police in relation to their obligation to protect property and to investigate and suppress crime[4].   

Since the return to common law orthodoxy in Michael and Robinson, followed by Poole and HXA[5], (i.e. the underpinning of liability in negligence reverting to the omissions principle rather than the shifting sands of public policy) it has been an uphill struggle to succeed for those suing the public services for damages. Whether the loss was caused by positive intervention by (say) a police officer, a social worker or an HMRC officer (a causing harm case), or a complaint of a failure (omission) to intervene (eg. a failed rescue / failure to protect victims of crime / abuse) by the exercise of their public functions with the consequent failure to make things better (i.e. failed to confer a benefit), there was limited scope for optimism because of the general rule that a person has no common law duty to protect another person from harm or to take care to do so: liability generally arising only if a person acts in a way which makes another worse off as a result.  As confirmed in Michael and then Robinson the “equality” principle (stretching back to Dicey’s work in the mid-19th century) meant that the same law applies to public bodies, so like private citizens state actors are also liable for what they do, rather than what they fail to do.  So the police or social services might be under a duty of care to protect an individual from a danger of injury which they themselves had created (Robinson) but, in the absence of circumstances such as an assumption of responsibility, they were not normally under a such duty where they had not created the danger of injury, including injury caused by the acts of third parties; but if the danger was created (or increased) by an act, a duty could arise by a failure to take reasonable steps to make things better.

The introductory section of the judgment (§1-43) sets out the factual background and the relevant case law which established and then reinstated the general rule that public bodies, like individual citizens have no common law duty to protect another person 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 principles from the main cases are then pithily summarised in §44.

Making Matters Worse: the correct legal test

The Tindall judgment is significant because it expands and clarifies the difference between imposing liability for making matters worse (causing harm) and dismissing claims for a failure to protect, most frequently by failing to make things better due to a negligent or “ineffectual” response.  The Court of Appeal accepted the police’s submission[6] that to impose a duty of care for making matters worse, the claimant must establish a negligent positive act (that caused physical damage).  Stuart-Smith LJ dismissed the claim as this test was not met as the police had done nothing negligent to encourage or direct Mr Kendall to cease his attempts to warn other motorists of the danger and leave in the ambulance. 

The Supreme Court reversed this and accepted the Appellants’ submissions, rehearsed at §48-§49, and found at §61 that “(t)o give rise to a duty of care, it would be sufficient that the activity of the police as a whole created a danger, ie that the activity of the police as a whole created an unreasonable and reasonably foreseeable risk of physical harm to the victim. Breach of such a duty (ie negligence) would be established by failure to take reasonable steps to remove this risk.”  In reaching this decision the Court declared that the well known OLL judgment of Mr Justice May (based upon Capital & Counties) was wrongly decided. This is a significant change in the law.

The 2nd Tofaris & Steel exception / the McBride & Bagshot interference principle

Most notably, in §48-70, the Court in departing from OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 formally and finally recognised that the "interference exception" was an established exception to the omissions principle and part of the common law.  It was seen as a variant of the existing causing harm / making matters worse exception, that when person A arrives at a scene and displaces B, the in-situ rescuer, and prevents B taking steps to protect C from harm. This was seen as no different to A creating a danger/making matters worse. Applying the interference exception here, the police’s attendance and displacement of Mr Kendall was sufficient to establish a duty of care to Mr Tindall. Consequently, the police then abandoning the scene was capable of amounting to a breach of that duty, which ultimately resulted in Mr Tindall and Mr Bird's death, albeit note the Court's factual conclusions as referenced above and summarised below. 

It did not matter, for the interference exception to apply, whether the police said or did anything which physically displaced Mr Kendall, the mere presence of the police was enough, as it gave Mr Kendall the impression they would take over and this encouraged him to leave.

In making this decision, the SC departed from the earlier case of OLL Ltd v Secretary of State for Transport .  In that case, the coastguard misdirected its own lifeboat and a Royal Navy helicopter to the wrong area in search of a canoeing party, resulting in the death of four children from hypothermia due to the delay in their rescue. A negligence claim against the coastguard, alleging that competent action would have led to a quicker rescue and saved lives, was struck out on the grounds that the coastguard did not owe a duty of care. Mr Justice May found no distinction between the two authorities, ruling that ineffectual responses by a public authority were insufficient to establish a duty of care. 

However, the Supreme Court ruled that OLL was wrongly decided. The fact these were two distinct legal entities with separate duties and liabilities was key and what is now known as the interference exception should have been applied. The misdirection by the coastguard made the victims worse off and as such, a duty of care should have been imposed and the claim should treated as a causing harm case due to the coastguard’s interference with the other professional rescuer. 

However, the Supreme Court ultimately found that the interference exception did not apply because it was not enough to show that the police’s actions had the effect of preventing Mr Kendall from helping Mr Tindall. To fully establish that duty of care, it is necessary to show that the police knew or ought to have known that their conduct would have this effect. In this case, there was a previously unaddressed but in the eyes of the Court very significant lacuna in the evidence, nothing establishing that the police knew or could have known that Mr Kendall was acting as a rescuer rather than as a victim, seeking to be rescued himself.  This point had not featured in the Court of Appeal analysis.

The 3rd and 4th Exceptions: control and status

Other potential exceptions to the omissions principle were considered but dismissed (§78-§87), albeit not entirely satisfactorily. In particular, regarding the amalgum of the potential “assumption of responsibility”/“control, exception” the Court left the point open for future debate. The Justices felt they did “not need to explore this question” because, even if it could be accepted in general, it “plainly cannot apply here” as the police did not assume control of the specific patch of icy road which caused Mr Kendall's accident. This was around 184 metres away from the crash site, where the police set up their cars and warning signs. This does seem harsh as they plainly had control of the scene and the stetch of A Road in the vicinity of the initial crash. Active steps were taken to make the whole area safe, even if not “in control” of the patch of ice, the point being that the complain was that they failed to inspect the black ice or realise how treacherous the conditions were.  It is a shame, but not surprising that the opportunity was not taken to provide guidance on the requirements of the control exception as a matter of general principle, before deciding whether it applied in this particular case, as the Court had done did with the interference exception.   

Whatever the merits of the "Status" exception as developed by the academics, it was summarily  dismissed as “(w)hatever merit this argument might otherwise have had, it is irreconcilable with the decision of this court in Michael. Tofaris and Steel acknowledged this in their article and expressed the view that Michael should be overturned. We have not been invited on this appeal to consider departing from Michael and, given the weight of that authority and the further body of authority since founded on it, this would not have been a realistic argument to advance.” (§86)

The Future

Whether a High Court judge of the Court of Appeal will follow the encouraging aspects of Tindall (for claimants) by relaxing other constrictive principles which block routes to compensation for the victims of the manifold and often avoidable tragedies that destroy lives and livelihoods, remains to be seen[7]. In Doughty Street at least it is hoped that further liberalisation will happen, but this view is not universally shared and it is notoriously difficult to obtain funding, let alone succeed in these case. Legal aid is unavailable (absent an allegation of misfeasance / serious misconduct by a public authority) and damages are usually too modest to interest litigation funders, claimant lawyers have to take huge gambles (as here) on conditional fee arrangements in cases against very well resourced opposition that soak up multiple hundreds of hours, and can last for years. 

In this case, it was an ordinary member of the public who carried out rescue operations. However, it is at likely that this issue will arise when multiple rescue authorities attend the same scene. Better communication on scene will be essential to ensure everyone understands the role they are playing. While in this particular case the foreseeability of harm fell marginally short of being established, in many other situations it will not be; a burning building (Grenfell), a car crash, flooding, or a terrorist incident are but a few conceivable situations in which harm is clearly foreseeable following the displacement of on scene rescuers. Members of the public now have an additional and important form of recourse, when such harm is caused by the carelessness of public authorities. We expect that those authorities will need to reflect upon and change protocols and training, to ensure these duties are met.

Whilst a loss on a narrow factual basis, the judgment has significant implications for the responsibilities of public bodies generally, particularly the police, all of which have the capacity to cause harm as well as make life better.  This is a controversial area of acute legal difficulty, consequent human tragedy and is likely to remain so, Tindall is unlikely to be the last word.

Nicholas Bowen KC[8]


[1] (1) Putting off or preventing someone else from taking steps to protect the claimant from harm (§48-58) (2) special control over the source of danger (iii) A defendant’s status creates an obligation to protect a claimant from that danger (§74-§88).

[2] N v Poole Borough Council [2020] AC 780 and HXA v Surrey County Council [2024] 1 WLR 335 which have taken a very restrictive approach on the availability of assumption of responsibility as a route to liability for public authority negligence.

[3] East Suffolk Rivers Catchment Board v Kent [1941] AC 74

[4] It will be relevant to several other significant cases working their way through the system, particularly the appeals in CJ v Chief Constable of Wiltshire [2022] EWHC 1661 (QB); P.I.Q.R P2

Woodcock v CC of Northamptonshire Police [2023] EWHC 1062 (KB) [2024] 1 All E.R. 157 due to be heard by the Court of Appeal on 28 October 2024 and a mental health case Kamba v North West London NHS Foundation Trust listed on 4 November 2024.

[5] Michael v Chief Constable of South Wales Police [2015] AC 1732; Robinson v Chief Constable of West Yorkshire Police [2018] AC 736; N v Poole Borough Council [2020] AC 780 and HXA v Surrey County Council [2024] 1 WLR 335 

[6] Relying on Capital & Counties plc v Hampshire County Council [1997] QB 1004 and OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897: the Lyme Bay canoe case.

[7] See footnote 4 above

[8] David Lemer and Duncan Fairgrieve KC Hon were also instructed to act for the family on the appeals by Joel Leigh, commercial dispute resolution partner at Howard Kennedy LLP assisted by Jim Fairlie who assisted with the preparation of this article.