After police attended a black-ice accident on the A413 and then left, a later collision on the same ice killed Malcolm Tindall. His widow argued that the police had made matters worse by displacing another person’s warning efforts, or had come under a duty to protect later road users. The Supreme Court dismissed her appeal: on the agreed and alleged facts, the police owed Mr Tindall no duty of care in negligence.
At about 4.30 am on 4 March 2014, Martin Kendall lost control of his car on black ice while travelling southbound on the A413 towards High Wycombe. His car ended in a roadside ditch. He was not seriously injured. Having previously worked as a road-gritter, he realised that the ice was an imminent danger to other drivers. He waved at passing traffic and then called 101. He told the call handler about the ice and his injuries. Officers were warned that the road was icy, dark and fast.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Police and other emergency services attended the first crash. The officers cleared debris and temporarily used a warning sign. They removed it when they left. They had not treated the patch of ice.
Between 5.45 and 5.52 am, Carl Bird lost control on the same ice, about 184 metres from Mr Kendall’s car. His car crossed into the path of Malcolm Tindall’s car. Both drivers died. Mr Bird’s passenger survived.
Mrs Tindall claimed that the Chief Constable was liable for her husband’s death. The issue arose on an application to strike out her claim or give summary judgment. The Court therefore considered the case on the agreed or alleged facts.
The decisions below
The Chief Constable applied to strike out the claim, or for summary judgment, on the basis that the agreed or alleged facts disclosed no valid claim. Master McCloud refused. She thought that whether the police had made matters worse, or had assumed responsibility by taking control, depended on facts that should be tried.
The Court of Appeal held that the claim could not proceed. Mrs Tindall appealed to the Supreme Court.
Making matters worse and failing to protect
Lord Leggatt and Lord Burrows, with whom Lord Hodge, Lord Briggs and Lady Simler agreed, started from a settled distinction. Negligence generally imposes a duty not to make another person worse off. It does not generally impose a duty to protect someone from harm, or otherwise confer a benefit. Public authorities, including the police, are judged by the same principles as private individuals. Statutory powers to protect the public do not themselves create a common-law duty to pay compensation when protection fails.
The comparison is with what would have happened if the defendant had done nothing. A duty may arise if the defendant’s own conduct creates an unreasonable and reasonably foreseeable risk of physical injury. There is generally no duty to protect against risks arising independently of that conduct, whether from nature or from third parties. Exceptions can arise where responsibility has been assumed or where the defendant controls the third party who causes the damage.
Displacing Mr Kendall
Mrs Tindall argued that, without the police intervention, Mr Kendall would have continued warning other motorists. A person who stops someone else from providing protection can make the danger worse. That required attention both to what the officers did and to what they knew or ought to have known about the help they were displacing.
The Supreme Court accepted that principle as English law. It is not a true exception. It is one way of making matters worse, by creating an additional danger. Causation alone was not enough. The police had to know, or ought reasonably to have known, that their attendance would displace Mr Kendall’s warning efforts.
There was no pleaded allegation or evidence that the officers knew or ought to have known that Mr Kendall had been warning other road users and would otherwise have continued. Judged against what would have happened without their attendance, the necessary basis for liability was missing.
There was no realistic basis for expecting new evidence on that issue at trial after the investigations already conducted.
The fire service
The alternative suggestion that the police had displaced the fire service also had no evidential basis. There was no realistic prospect of establishing that the fire service would have remained and made the road safe but for the officers’ attendance.
Protecting road users from harm
The alternative case depended on an exception to the general rule.
There was no assumption of responsibility. The officers had no communication or interaction with Mr Tindall, and he was unaware of anything they said or did on which he could have relied. Mrs Tindall did not pursue this argument except insofar as it overlapped with control.
Control of the first accident scene was not control of the patch of black ice. Nor had the officers taken control of Mr Tindall or promised to protect him. The Court did not need to decide how broadly a control principle might apply to dangers on publicly accessible land.
A suggested duty based on the special status of the police was irreconcilable with Michael. The Court was not invited to depart from that decision, and status could not supply a duty when the other principles did not.
Verdict: The Supreme Court unanimously dismissed Mrs Tindall’s appeal. On the facts agreed or alleged, the police neither made the danger worse nor owed a duty to protect Mr Tindall from it. The claim against the Chief Constable could not proceed to trial.
Source: Tindall and another v Chief Constable of Thames Valley Police [2024] UKSC 33
