Making matters worse: the scope of police responsibility for a death

Tindall and another v Chief Constable of Thames Valley Police [2024] UKSC 33, (judgment here)

It is not coronial law under the microscope here, but rather a decision from the Supreme Court at the end of last year in a police civil action.  Nevertheless it provides helpful insight into the potential responsibility of police forces in their deployment to incidents that coroners and inquest practitioners will need to bear in mind should  a neglect or gross negligence manslaughter/unlawful killing conclusion be under consideration.

The Supreme Court was concerned with the test for the imposition of a duty of care in a civil claim for compensation.  The Court considered the elusive dividing line between ‘failing to protect a person from harm’ (where no duty of care arises) and ‘making matters worse’ (when a duty does bite). The Court acknowledged that drawing this distinction is “not always straightforward” [1] – which is perhaps something of an under-statement!

Fatal road traffic incident after police attendance

The facts of this case were pretty extraordinary, never mind the complexities of the legal arguments which then ensued. In the early hours of the morning Mr Kendall lost control of his car on an A road when he hit an area of black ice. His car slid off the road into a ditch. He was not seriously injured and was able to call police.

Mr Kendall said in his witness statement that given the dangerous state of the road he waved at a passing van and other traffic to encourage them to stop or slow down. A police van was allocated and arrived but was not carrying signs to slow down traffic or warn of hazard. A police car was also allocated which should have been equipped with two ‘POLICE SLOW’ warning signs but was actually only equipped with one sign.  Fire and ambulance crews arrived, and Mr Kendall was taken from the scene by ambulance at . At that point Mr Kendall obviously stopped his extremely public spirited act of trying to warn other road users of the ice hazard.

Nothing in Mr Kendall’s later evidence suggested that he told police he had been trying to warn other road users before they arrived or that he would have continued to do so if he had still been at the scene. The police officers cleared the area of debris, called for a gritter to attend and then left the scene, taking their one ‘POLICE SLOW’ sign with them. The fire crew also left having satisfied themselves that Mr Kendall had been taken to hospital and his car was not itself a hazard.

Unfortunately, approximately 20 minutes later a second car lost control on the same area of black ice and had a head on collision with a vehicle being driven by Mr Tindall. Both drivers died.

Jury findings at the Inquest

Following a five-week inquest into the deaths[2] the jury returned a narrative conclusion which stated that the police officers “should” have done more.[3] The jury found: that there was a localised patch of ice; that the cause of the road being in that condition was excess water which froze forming ice; that the highway authority responsible for the road had failed to investigate the cause of the excess water and take appropriate action to stop the water reaching the A road; and that the highway authority and the police, on the basis of the verbal information received, should have carried out a detailed investigation prior to, and at the scene of, Mr Kendall’s accident to identify the root cause. The jury also found that after Mr Kendall’s accident: appropriate signs should have been placed; gritters should have been requested and the police should have stayed at the scene until the gritters arrived; the road should have been closed; and appropriate support should have been requested.[4]

After the inquest the claimant, the widow of Mr Tindall, sued the police.  As no police officers or vehicles were involved in the fatal accident itself, her primary claim was that the response of the police to the earlier accident on the same stretch of road ‘made matters worse’ such that the Chief Constable owed a duty of care to other road users and so was liable in negligence or her husband’s death. In the alternative, it was argued that the case fell within one of the exceptions to the general rule that no duty of care is owed to protect a person from harm.[5]

The serious dereliction of the police’s public duty 

The view of the Supreme Court was that on these facts “there can be no doubt that the failure of the police officers 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”.[6]

However, the Court went on to observe that “it does not follow that they were in breach of a duty of care in the tort of negligence owed to particular individuals”. The Court quoted with approval Lord Toulson in Michael v Chief Constable of South Wales Police:[7]

“It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.”

Neither that basic principle nor the ordinary principles of the common law were in dispute, in particular, there was a fundamental distinction between making matters worse and failing to confer a benefit. The Court helpfully set out the facts and reasoning of six past cases to see how that distinction can be drawn, as well as the recognition of well-known exceptions to the general rule that there is no duty of care to confer a benefit.[8]

The case against the police and ‘the interference principle’

Not surprisingly given the state of the law, the claim against the Chief Constable in this case was primarily argued on the ground that the police simply ‘made matters worse’. The argument was founded on the allegation that, but for the arrival of the police, Mr Kendall would have continued making attempts to warn other road users. In short, the police made matters worse by “displacing Mr Kendall’s efforts” without making comparable efforts of their own.

It was argued that once police left the scene, road users were exposed to a risk of injury greater than if the police had never attended at all (because Mr Kendall would have persisted in his warning attempts). The claimant relied upon what had been previously described by legal commentators as ‘the interference principle’:

“If A knows or ought to know that B is in need of help to avoid some harm, and A knows or ought to know 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 she needs.”

It was submitted that the substitution of the police officers for ‘A’, drivers using the road for ‘B’ and Mr Kendall as ‘someone else’ should sound in liability. Although there had been no previous English case clearly accepting and applying this ‘interference’ principle, the Court accepted it was a correct statement of English law. The Court observed that it followed from first principles and was simply a particular illustration or manifestation of the duty of care not to make matters worse by acting in a way that creates an unreasonable and reasonably foreseeable risk of physical injury to the claimant.

The Court observed that Counsel for the claimant righty accepted that to succeed the Claimant would have to establish that the police knew or ought reasonably to have known (i.e. it was reasonably foreseeable) that their conduct had or might have had the effect of putting off or preventing Mr Kendall from warning other motorists of the ice hazard. The Court observed however that “at this stage in the analysis, the claimant runs into a major factual difficulty”.[9]

Fatal factual lacuna in the evidence

The Claimant’s case was holed beneath the waterline as there was no evidence that the police officers knew or ought to have known that Mr Kendall would have taken any steps to prevent other road users from suffering harm had he stayed at the scene.

The crucial question was whether the police could reasonably have foreseen that their attendance would ‘displace’attempts that Mr Kendall would otherwise have made to prevent harm to others. The absence of any affirmative evidence of this was fatal to the claim. Consequently, on the pleaded facts and evidence, there was no reasonable basis for imposing a duty of care on the grounds that the police had ‘made matters worse’.

 

Relevance for Coronial investigations

From a coronial perspective this case underscores the need to scrupulously analyse the factual evidence obtained during the investigation, as the extent of the police’s responsibilities will turn upon it.   If on the facts a duty to act could not arise, then an inquest conclusion that ascribes responsibility for failing to act would not be appropriate.

This does not mean it would be impermissible to record at an inquest the fact that police did not act or the fact that they left a scene.  But any suggestion that the police should have done something different may inappropriately suggest the police had been under a duty to act, when in law no such duty arose.

Particularly if there is to be any consideration of a conclusion encompassing ‘neglect’ arising from the failure of a state agent to undertake a particular action then the existence of a duty to act will be a central issue that must be first be carefully determined.

 

Footnotes

[1] §2

[2] i.e. conducted in compliance with the procedural obligations under Article 2 ECHR.

[3] The Jury’s narrative conclusion is set out at length in the judgment of the Supreme Court at §15.

[4] A judgmental conclusion permissible in accordance with R (Middleton) v HM Coroner for West Somerset [2004] 2 AC 182 at [37]

[5] The exceptions being : (i) Assumption of responsibility (see Kent v Griffiths [2001] QB 36 (CA); (ii) Being in a position of control (see Dorset Yacht [1970] A.C. 1004 (HL); (iii) Status (see Tofaris and Steel – Negligence Liability for omissions and the police (2016) 75 CLJ at [145-146], and [150-151]). On the facts of the case no duty was held to be owed on the basis of any of these exceptions.

[6] ±20

[7] [2015] UKSC 2, at §114.

[8] East Suffolk Rivers Catchment Board v Kent [1941] AC 74; Ancell v McDermott [1993] 4 All ER 255; Capital & Counties plc v Hampshire County Council [1997] QB 1004; Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; Michael v Chief Constable of South Wales Police [2015] UKSC 2; Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.

[9] §59.