Tindall and another v Chief Constable of Thames Valley Police

Facts

Black ice formed on a road. A collision occurred on the road, and police officers attended. The officers did not close the road, did not arrange warnings and did not take steps to deal with the ice. Later that day another driver lost control of a vehicle on the ice and was fatally injured in a further collision. The driver's family sued the chief constable in negligence, alleging that the police should have closed the road or given warning once they knew of the hazard.

Issue

Whether police officers who attend the scene of an accident on a road and know of a hazard such as ice owe a duty of care to later users of the road to take steps to warn them or to remove the danger; and, in particular, whether an exception to the rule against liability for omissions applied.

Held

The claim failed. The failure to close the road or warn drivers was an omission, not a positive act which created or increased the danger. The ice was a natural hazard which the police had not created, and they had not assumed a responsibility to later road users that would make them liable.

Ratio

• A public authority, including the police, is not liable in negligence for failing to prevent harm caused by a hazard it did not create, unless it has assumed responsibility to the claimant or one of the recognised exceptions to the rule against liability for omissions applies.
• Attending the scene of an accident and then leaving without removing or warning of a hazard that was already present does not amount to creating or increasing the danger, and merely having the power to act does not give rise to a duty to exercise it for the benefit of individual road users.

Key reasoning

• The ordinary rule, applied to public authorities as to private persons, is that there is no liability for a pure omission, and the police are in the same position as others when they fail to protect people from harm caused by third parties or natural causes.
• Attempts to describe the officers' conduct as positive acts did not change the fact that the complaint was a failure to close the road or to warn other drivers, and attending the scene did not make the later accident more likely.
• No assumption of responsibility to the later driver arose, since the officers did not make any promise or undertake to that driver, and later road users did not rely on them.

Where it fits in the module

In Tort (FHS), on Omissions, acts of third parties and public authorities, Tindall is the latest application of the Michael principles in the Supreme Court, applying the distinction between acts and omissions to the police and showing how limited the exceptions are. Candidates should compare it with Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, where the police were liable for a positive act that exposed a bystander to risk, with Poole BC v GN [2019] UKSC 25 and with the decisions on rescue and protective duties. The FHS debate asks whether the act and omission line is stable, whether it is a principled way of limiting public authority liability, and whether the Human Rights Act route under Article 2 fills the gap that remains.

Criticisms

• Whether an officer who takes charge of an accident scene and then leaves has acted or omitted is a matter of description, so the act and omission test may reach different results depending on how the conduct is framed.
• The police are the body that knows of the hazard and has the power to deal with it, and a rule that gives them no duty seems to leave road users without protection when they depend on the police to act.
• The decision gives little weight to the arguments that a duty would encourage better practice, and the fear of defensive policing relied on in earlier cases is not supported by evidence.
• The analogy with private persons ignores the statutory position of the police and the expectation of the public that officers who know of a hazard will deal with it.