Tindall and another v Chief Constable of Thames Valley Police

The Supreme Court has reaffirmed the general principle that there is no duty of care to protect a person from harm caused by a third party.

One exception to this principle, which is increasingly being tested in courts, is when the defendant has assumed responsibility to protect the individual from harm. The legal principle of assumed responsibility has been developed through case law. For a duty of care to arise through assumption of responsibility it is necessary to show that the defendant knew or ought to have known that its conduct would have resulted in the harm that was suffered.

This threshold is high, but one that many claimants continue to try and clear in claims against public bodies. The latest attempt to fix a public body with an assumption of responsibility has now been decided by the Supreme Court in the case of Tindall. That attempt has failed.

The facts of Tindall are important. There had been a single vehicle road traffic incident caused by black ice on the road. While he waited for the police, the driver made attempts to warn other road users of the ice. When the police attended, they placed a ‘Police Slow’ sign in the road while they dealt with the incident and cleaned the debris. The sign was removed when they left the scene. A further, more serious accident occurred around 20 minutes later. Unfortunately, Mr Tindall was killed.

A claim was brought against the police, alleging that through their actions they had assumed responsibility for the safety of the scene and thus owed Mr Tindall a duty of care that they had breached. The High Court held that the police did owe that duty. The Court of Appeal disagreed. Mr Tindall’s widow appealed to the Supreme Court.

The Supreme Court has dismissed the appeal.

It was further established that the police could not be held liable for making matters worse in this instance, and none of the possible exceptions to the general rule that  The Supreme Court has reinforced the legal principles previously established through case law, a line of cases which includes Gorringe v Calderdale MBC [2004] UKHL 15 (another highways case), Mitchell v Glasgow City Council [2009] UKHL 11 (a housing case) and Michael v Chief Constable of South Wales [2015] UKSC 2. The general principle that there was no duty of care to protect a person from harm by a third party was sound. The police had not assumed responsibility for Mr Tindall’s safety through any of their actions. As they had not made matters worse through their actions, they could not be regarded as having assumed responsibility for the safety of future road users such as Mr Tindall.

Forbes comment

Public bodies should take some comfort from this decision, which is a reiteration of the key principle that there is no duty of care to protect a person from harm from the conduct of third parties. The exception to this general rule is when there has been an assumption of responsibility. As outlined in previous case law, the threshold to establish assumed responsibility is high; for the police to have been liable, they would have had to take action that made matters worse and which they knew or ought to have known would have resulted in the harm that was caused. On the evidence, they had taken no such action, and the claim was bound to fail.

It should be noted that the relevance of the assumed responsibility exception will depend on the specific facts of each case. We are going to see further factual scenarios of alleged assumption tested in the courts for some time to come.