Liability for omissions: Is the law as it should be?

John-Paul Swoboda examines liability for omissions in the police negligence case of Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33.

If you were writing a new legal code for an imaginary country, you could make a compelling case that a police force ought to be liable in the civil courts for a fatal accident caused by ice, which occurred after police officers left the scene – having been told there was ice all over the road. These were, in precis, the facts (but not the outcome) in Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33. Tindall was a claim brought by the estate of a deceased driver who died in a collision with another vehicle on black ice. This collision occurred shortly after a Mr Kendall, who previously worked as a road-gritter for ten years, had called the police to the scene after experiencing a less severe accident approximately an hour earlier. Before the arrival of police, Mr Kendall attempted to warn traffic of the danger. The police attended Mr Kendall, requested a road gritter (without communicating urgency), and then left the scene. They placed, but then removed, a ‘police slow’ roadsign. For the purposes of the appeal over the strike-out, the Chief Constable accepted that the court should assume that, but for the arrival of the police, Mr Kendall would have continued his attempts to alert other road users. The claimant accepted that the police did not say or do anything (either directly to Mr Kendall or generally) to stop his attempts or to go in the ambulance.

The Independent Police Complaints Commission concluded the attending officers in Tindall had a case to answer for gross negligence manslaughter. The Police Disciplinary Tribunal considered two of the attending officers were guilty of misconduct and one guilty of gross misconduct. In an Inquest the jury stated, in a narrative verdict, that the police officers attending “should” have done more including closing the road, placing warning signage and staying on the scene until gritters arrived. Yet the Supreme Court decided that the Thames Valley Police force was not only not liable but there was no real prospect of the civil claim succeeding such that it should be struck out.

Returning to our imaginary legal code, you could make a strong case, equally, that there ought to be no liability in a case where two police officers attempt to execute an arrest of a suspected drug dealer on a high street. In the struggle which ensued during the arrest, they knock over and fall onto a frail 76 year old lady and cause her injuries. These were the facts of Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4. There was no IPCC investigation and no disciplinary proceedings against the officers undertaking that arrest. The officers decided when and how to arrest but failed to note or heed the presence of Mrs Robinson. This was, arguably, a momentary failure by the officers in a high-pressure situation. Yet the Supreme Court in Robinson concluded the West Yorkshire Police were liable.

Why? What explains these contrasting decisions?

Tindall concerned an omission and Robinson an act. Or to put it into the language commended in the joint (and unanimous) judgment of Lord Leggatt and Lord Burrows in the Supreme Court, Tindall was a case about the police failing to confer a benefit (or a failure to protect from harm) whereas Robinson was a case where the police had made matters worse. The reasoning goes something like this. The common law has always drawn a distinction between causing harm and failing to intervene; there is no duty to make things better in a bad situation (unless you assume responsibility or control a third party). The law of negligence treats public authorities and private individuals no differently, so it matters not whether it was a police officer on duty attending the scene or a passing driver who notes the ice hazard but does nothing to prevent others from coming to harm. Neither of these parties made matters worse so there is no case of civil liability against either. In Tindall, whilst the officers attended, they did not act so as to worsen the situation: the black ice was there when they arrived and there when they left; the situation was made no better or worse. By contrast, by arresting a suspected drug dealer on the high street without thinking sufficiently about the safety of other users of the high-street (i.e. Robinson), the police’s actions made matters worse.

Could Tindall have been decided differently? 

The Supreme Court found in Tindall that the die had been cast long ago by successive decisions of the Supreme Court, notably Robinson and Michael v Chief Constable of South Wales Police [2015] UKSC 2 (the failure to respond to a 999 call did not make matters worse). The law was not in flux and on the facts no duty was owed. The Claimant’s argument was wrong, viz. mere attendance by the police at the scene was enough; the police did not “make matters worse”. There was a factual argument that the police had interfered to make matters worse; it was said by the Claimant that the police had by their attendance removed a person from the scene (Mr Kendall) who would have provided warning of the danger. The Supreme Court accepted in Tindall that if you interfere to make matters worse that is sufficient for a duty to be imposed, but on the facts of this case there was no evidence of such interference: the police had no idea that Mr Kendall was attempting to warn other road users and no idea that their conduct might put Mr Kendall off from warning other motorists.

In short, the common law already had a complete answer to the legal issue posed by the case and unless the claimant sought to challenge/overturn the (long) line of Supreme Court authority culminating in Robinson and Michael by invoking the 1966 Practice Statement no other outcome was possible. The Supreme Court was not invited to depart from Michael and indicated that the justices would not, in any event, have been persuaded to do so (para 86).

Should Tindall have been decided differently? 

It is hard not to feel disquiet at the outcome, where the officers who left the scene without taking any action were said to be in serious dereliction of their public duty owed to society at large.

The answer given by the Supreme Court as to why the officers dereliction of public duty is insufficient for the imposition of a private duty in negligence is best expressed, in my view, by Lord Toulson in Michael:

But that rule is not absolute because where the person failing to act is in a position of sufficient control over the third party who has directly caused the damage, there will be a duty (see e.g. Home Office v Dorset Yacht – albeitthe Supreme Court noted this could be said to be a case of creating a danger, para 79). In Tindall, the police had – or could have taken – indirect control over the situation which caused the damage, and a person (Mr Kendall) who was warning about it. If the police had closed the road, the driver who lost control and died would never have been able to drive on it: they controlled the scene if not the driver. The Supreme Court rejected this argument on the basis that the extent of the police’s control was over Mr Kendall’s collision site and not the black ice itself (para 83). The judgment commented, ‘Indeed, a major complaint is that the police were negligent in failing to inspect the ice or take other necessary measures. That cannot be turned around to say that there was a duty of care consequent on their having taken control of the patch of ice.’ (para 83)

Further, or alternatively, the common law does take into account circumstances of a party when deciding whether to impose a duty. Children (particularly young children) are much less likely to face a duty than adults or legal persons (like companies or public bodies). If your status can prevent you owing a duty, does it not make sense also that your status (say as an institution with responsibility for ensuring the safety of roads) could also lead to an enhanced duty? This argument was rejected by the Supreme Court at paras 85-87 as inconsistent with Michael.

However, the author of this blog contends that the breach and duty should be connected: as the scope of the duty shapes the limits of breach, the context of the defendant’s actions should determine the extent of their duties. If the current law imposes a binary situation (you either owe a duty or you don’t), does this do justice to the reality of modern life where some legal bodies are imbued with special responsibilities? Should there not be a more sophisticated approach where the extent of your duty depends on your status and the extent of your responsibility, including your public responsibilities. In this sense, the police are in a distinct position by comparison to members of the public.

Where there is an assumption of responsibility by the defendant to safeguard an individual, the law does impose a duty. In Tindall the police did, in a loose sense, assume responsibility to take action to prevent road accidents, which is why one of the officers who left the scene without making it safe was found guilty of gross misconduct by a police disciplinary tribunal. This is, nevertheless, a loose way of speaking because it was held to be insufficient to found a duty of care. In Michael, Lord Toulson also stated that (para 114):

If protection of public finances is the reason to protect the police from civil liability, would it not be better for the law to state this in a straightforward manner? The Court of Appeal did exactly that in the case of Robinson (before their decision was overruled by the Supreme Court). Hallet LJ stated:

On Hallet’s LJ formulation, there was ‘police immunity from suit’ irrespective of whether the failure was an act or omission. Of course, the problem with openly acknowledging this is that it may breach a claimant’s Article 6 ECHR rights: Osman v United Kingdom (2000) 29 E.H.R.R. 245. In that case, the European Court of Human Rights stated:

“The Court notes that the applicants’ claim never fully proceeded to trial in that there was never any determination on its merits nor on the facts on which it was based. The decision of the Court of Appeal striking out their statement of claim was given in the context of interlocutory proceedings initiated by the Metropolitan Police Commissioner and that Court assumed for the purposes of those proceedings that the facts as pleaded in the applicants’ statement of claim were true. The applicants’ claim was rejected since it was found to fall squarely within the scope of the exclusionary rule formulated by the House of Lords in the Hill case. The reasons which led the House of Lords in the Hill case to lay down an exclusionary rule to protect the police from negligence actions in the context at issue are based on the view that the interests of the community as a whole are best served by a police service whose efficiency and effectiveness in the battle against crime are not jeopardised by the constant risk of exposure to tortious liability for policy and operational decisions. Although the aim of such a rule may be accepted as legitimate in terms of the Convention, as being directed to the maintenance of the effectiveness of the police service and hence to the prevention of disorder or crime, the Court must nevertheless, in turning to the issue of proportionality, have particular regard to its scope and especially its application in the case at issue. While the Government has contended that the exclusionary rule of liability is not of an absolute nature and that its application may yield to other public policy considerations, it would appear to the Court that in the instant case the Court of Appeal proceeded on the basis that the rule provided a watertight defence to the police and that it was impossible to prise open an immunity which the police enjoy from civil suit in respect of their acts and omissions in the investigation and suppression of crime.” (paras 148-150)

The situation in respect of Article 6 may be different nowadays due to the possibility of a civil action under the Human Rights Act 1998, even if not in the law of negligence.

In my opinion, in the UK in the 21^st century where institutions do adopt broad responsibility (even if in a public capacity), there is greater intellectual coherence in either accepting a duty for public bodies in so far as it relates to their special responsibilities or a policy justification for immunity from suit (irrespective of whether an act or omission) than there is in rejecting a duty for an omission but imposing a duty for an act. Immunity from suit (subject to exceptions) or a duty matching the public authorities’ responsibilities would avoid decisions being based on what many members of the public might consider whimsical grounds. For example, in Tindall, the attending officer put up a warning sign when present but took it down when leaving, making matters no worse than when he had arrived: no duty. But had the officer, instead removed the exact same warning sign placed there by someone else he would, on the Supreme Court’s analysis, have made matters worse so as to give rise to a duty even though the critical act causing the fatal accident was the removal of the warning sign, not the placing of it.