This has become the latest case in a developing trend where the Courts have been disinclined to strike out a claim involving alleged negligence of police officers. This developing pattern of cases has demonstrated a “flux” 1 in this area.
The issue considered in this application to strike out was whether the Court can differentiate between the police positively creating a danger/making it worse or instead refraining to protect someone from the risk. Case law has determined that liability will usually attach in the case of a positive acts, but not where there is an omission .
Mr Kendall, (“K”) had been driving down a country road in winter. Due to a water leak a portion of the road had frozen over resulting in black ice. The patch of black ice caused K to lose control of his car and leave the road. K was a road-gritter and so was familiar with the issue of black ice and had not sustained life threatening injuries. As such, whilst awaiting recovery, he warned other approaching drivers of the hazardous road conditions by signalling for them to slow down.
The police later arrived on the scene and erected a warning sign, cleared the wreckage of K’s vehicle and cleared the resulting debris from the collision. As they were leaving the police removed the previously erected warning sign and transported K to hospital. As K was taken to hospital by the officers attending no one remained at the scene and “no functional steps” 2 were taken to ensure notification of the hazard to other motorists.
The Claimant’s husband (Mr Tindall) was later driving on the road in question when an oncoming driver (Mr Bird) lost control of their vehicle and collided with his. Sadly, both Mr Bird and Mr Tindall were tragically killed. A police disciplinary tribunal found that the officers attending the scene of the first accident (involving K) were guilty of misconduct and had committed failures of operational training.
The Claimant submitted that the police officers’ removal of the driver who had been warning the traffic, together with the warning sign that they had erected were positive acts that were causative of there being no warning to alert motorists of the hazard the road posed.
The Chief Constable sought to strike-out the claim on the basis that there was no duty of care.
Master McCloud dismissed the application to strike-out and found as follows:
- The legal position, following recent cases, was that although the police generally had no positive duty to protect individuals from harm, they could come under such a duty where they took steps which either created a danger or made it worse 3;
- What amounted to such an intervention was a very fact dependent exercise. The police officers’ removal of the person who was warning traffic and the police warning sign could amount to a sufficient intervention that made matters worse 4;
- The ambiguity of whether steps were acts or omissions – or “made things worse” versus “did not make things worse” had to be resolved at trial 5.
Act vs Omissions – Previous case law
In Robinson v Chief Constable of West Yorkshire Police 6 it was held that a duty of care could be imposed on the police where they performed a positive act which created danger or harm. Lord Hughes, dissenting, stated in Robinson 7 that there was “no firm line capable of determination between a case of omission and of commission” and that “the great majority of cases can be analysed in terms of either”.
In Chief Constable of Essex Police v Transport Arendonk Bvba 8 police officers arrested the driver of a lorry containing cargo. Whilst the driver was in police custody the cargo was stolen. The judge concluded that it was at least arguable that the police had assumed responsibility to the haulier to keep the lorry safe. As such the case proceeded with the issue to be determined at Trial and was not struck out.
In Robinson it was held that police officers created a danger to bystanders by performing, in a built up area, the arrest of a person who they anticipated would try to evade arrest. That risk materialised and the Claimant was injured in the struggle that ensued. This can be contrasted with Arendonk, where it is arguable that simply arresting the driver to whom the cargo belonged did not, of itself, create the danger of the cargo’s being stolen in the area.
As a result of this run of cases it must be arguable that the police were under no duty to prevent the two cars from colliding with each other unless they had assumed a duty of care to those road users or where they had done something to prevent the original driver from continuing to warn others of the danger.
The court considered it at least arguable that by erecting a road sign warning of the hazard, the police had assumed such a duty.
In the final concluding remarks at paragraph 19 of the judgment, the court concludes that the application to strike out is dismissed on the basis that the argument that the police “made matters worse” is not bound to fail on the present authorities and hence the issue should be considered at Trial.
Practice points and concluding remarks
The trend of case law regarding the legal duty of care remains shrouded in ambiguity. It will be necessary to closely monitor the subsequent litigation of these cases that have been allowed to proceed – assuming indeed that they do reach Trial. For now, given the reluctance to strike out cases of this type, practitioners should be wary of making early applications to strike out prior to any definitive judgment being available. Even if one of these cases reaches trial, it is easy to see a decision being heavily caveated with references to “fact specific” issues. It seems virtually impossible to have a one size fits all solution to this question at the moment.
- Para 3 Tindall
- Para 5 Tindall
- Para 10 Tindall
- Para 15 Tindall
- Para 15 Tindall
-  UKSC 4;  AC 736
- Para 117 Robinson
-  EWHC 212
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