In Tindall v Chief Constable of Thames Valley Police [2020] EWHC 837 (QB) — available on Westlaw but not yet Bailii or the ICLR, the courts have again demonstrated a reluctance to strike-out a police negligence claim. This shows the difficulty of trying to show whether the police have positively created a danger / made it worse or merely refrained from protecting someone. A claim against the police for negligence will usually arise in the first instance but not, subject to exceptions, the second.  

In this case, a country road was covered in black ice. A driver slid off the road and, whilst waiting for assistance, warned other drivers of this danger by signalling for them to slow down. The police arrived, put out a warning sign, cleared the car and removed the resulting debris. They then removed the sign and took the driver to hospital, leaving the road as it had been before the accident. Later, after the police had left, two other drivers approached each other from opposite directions on the same stretch of road. One lost control on the ice, their cars collided and, tragically, both were killed.

The Claimant maintained that the police officers’ removal of the driver who had been warning the traffic, together with the warning sign that they had put out whilst clearing the accident debris, were positive steps that caused the warnings to cease and made matters worse than if they had not attended. The Chief Constable sought to strike-out the claim on the basis that there was no duty of care.

The Master dismissed the application to strike-out for the following reasons:

- 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 [10];

- 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 [15];

- 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 [15]. 

The matter will, therefore, be considered at trial (if the case is not settled).

A question that arises from this is whether the courts can, in a strike-out application, properly identify whether a case relies on a positive act or intervention as opposed to an omission, regardless of the evidence to be called.

In the recent case of Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] AC 736, the Supreme Court held that a duty of care could be imposed on the police where they performed a positive act which created a danger of harm. In a blog post on this case, it was observed that in cases before Robinson, the courts had stated that whether a situation was characterised as a positive act or omission could merely depend on how it was described. This reflected what Lord Hughes, dissenting, stated in Robinson at [117] — 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 Michael v Chief Constable in South Wales [2015] UKSC 2; [2015] AC 1732 at [176] and [189], Lord Kerr and Lady Hale cited the “omissions principle”, as explained by Stelios Tofaris and Sandy Steel (who criticise its application to the police), that person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger: “Police Liability in Negligence for Failure to Prevent Crime: Time to Rethink” University of Cambridge Faculty of Law Research Paper No 39/2014, July 2014. See, also, the further article of Tofaris and Steele, “Negligence Liability for Omissions and the Police” (2016) The Cambridge Law Journal, 75(1), 128-157.

As to identifying whether something is based on an act or omission, Professor Nolan, who supports the application of the omission principle to the police, has stated that a “rule of thumb” in identifying a true omissions case is to ask whether, if the defendant were removed from the situation altogether, the claimant would still have suffered the damage: “The Duty of Care After Robinson v Chief Constable of West Yorkshire Police”, UK Supreme Court Yearbook Vol 9 174, at page 188. At page 194, he suggests that the distinction between positive conduct cases and omissions cases is that of making things worse for a claimant as opposed to not making them better. Similarly, in Professor Nolan’s earlier article, “The Liability of Public Authorities for Failing to Confer Benefits” (2011) 127 LQR 260-287, he posited the appropriate question as being whether the conduct of the defendant left the claimant in a worse position than if the defendant had not intervened at all.

One of the first decisions after Robinson concerning an application to strike out a negligence action against the police was Chief Constable of Essex Police v Transport Arendonk Bvba [2020] EWHC 212. There, the court declined to strike out a claim in negligence where police officers arrested the driver of a lorry carrying cargo and took him to the police station, during which time the cargo was stolen. The judge in that application concluded that it was at least arguable that the police had assumed a responsibility to the haulier to keep the lorry safe, such that the point would have to be determined at trial. 

The Master in the instant matter relied heavily on this decision, considering it to be “on point” – but, as noted in a blog post, that case seemed to be about police omission and assumption of responsibility. The majority in Michael stated at [97] that whereas the law required a person to exercise care when embarking on an action which might harm others, it imposed no liability for failing to prevent harm caused by someone else. This was subject to two exceptions: where person A was in a position of control over person B and ought to have foreseen the likelihood of B’s causing damage if they failed to take reasonable care in the exercise of that control; and where A assumed a responsibility towards person B.

Hence in Robinson, it was held that police officers created a danger to bystanders by performing, in a moderately busy shopping street, the arrest of a person who they expected would try to escape. That risk was realised when the person being arrested did try to escape, collided with an elderly woman and knocked her over, causing injury. Following the reasoning in Michael, Lord Reed observed at [73] that the claim was not that police officers had merely failed to protect the claimant from the risk of being injured but that their actions had positively resulted in causing her to be injured, which would not otherwise have happened if the police had not acted.

In Arendonk, it is arguable that the act of arresting the driver did not, of itself, create the danger of the cargo’s being stolen in the area and, also, the police had no control over the source of that danger. It may arguably have contributed to the risk of its theft by removing the driver, but that was pursuant to a lawful arrest that, of itself, did not create the risk. Any remaining argument that the police had failed to protect the cargo, by not permitting the haulier to be contacted or contacting the haulier themselves, was an omission – but could fall within para (ii) of the omission principle insofar as the police may have taken steps to prevent the driver from informing his employer of the situation (which it was suggested they did). 

Looking at this by considering the omissions principle, it could be said that the police were under no duty to take care to prevent the theft of the cargo occurring through a source of danger that they did not create unless unless they had assumed a responsibility to protect its owner from that danger or where they had done something which prevented the owner from protecting against it. The former seems unlikely. The latter is arguable depending on whether the police officers’ refusal to allow the driver to inform his employer of his arrest amounted to preventing the owner from protecting against the consequent risk of theft. Alternatively, on Professor Nolan’s test, one might ask only whether if the police were removed from the situation altogether, the cargo owner would still have suffered the damage. 

Applying this to Tindall, it is 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 putting out road signs, the police had assumed such a duty — although it might be said that the specific duty that the police assumed was to protect road users from the accident debris rather than the dangerous road itself, which could have remained dangerous for a significant period of time. There seems to be little difference between a police officer’s removal of a temporary road sign and a police officer’s moving a police car with flashing lights, parked in the road to warn drivers to slow down for an accident to be cleared, or even to cease performing manual warnings with arms and hands. 

Applying Professor Nolan’s test, it seems a stretch to say that had the police taken no action whatsoever, the two drivers would not have collided, or that by taking the original driver who had been involved in the earlier accident to hospital, this had “made matters worse”. The Master cited the case of Capital & Counties Plc v Hampshire County Council [1997] EWCA Civ 3091; [1997] QB 1004 where firefighters were found to be liable in negligence where they switched off a sprinkler system during a fire, which resulted in its rapidly going out of control. However, the sole purpose of the sprinkler system was to spray water on a fire. The driver who was warning the traffic was an independent person who, presumably, wanted to leave the scene and required assistance to do so. It must be at least possible that the driver accepted police assistance to take him to hospital rather than being forced by them to leave the scene. Had, alternatively, the AA transported him, it would be surprising if the motor recovery service thereby became responsible for any subsequent accidents.

The Master referred to that driver’s witness statement, where he said that had he realised that the police were going to take no action, he would have done his best to warn other motorists of the ice – but that falls short of suggesting that the police prevented him from doing this. It also has the potential to make the police liable for a situation about which they may have limited information — the state of a road which they have no responsibility to maintain, in respect of which dangers they may have no duty to warn and where they have no knowledge as to how long any danger may continue. It also might be thought unsatisfactory that the existence of a police duty of care may depend upon the actions of a third party about which they may have minimal knowledge — such that a duty may have arisen here only because the earlier driver decided to warn other drivers of the road danger, which itself might have been dangerous or risky for him (or others). It is unclear whether this might also have depended on the amount of time during which the driver performed the warnings, whether they were effective, if he had stopped them of his own accord before the police arrived or whether he would have done so because of cold, bad weather or tiredness etc. 

It is noteworthy that the Master referred to an inquest finding that “more should have been done” – which sounds much like an omission. She also referred to the fact that a police disciplinary hearing found the officers guilty of misconduct – but nowhere stated whether this was because they had created a danger or failed to take steps to prevent one. Given that the Master made specific reference to the stated failure of the police to put out signs, request gritters, stay on the site, close roads and request support – the impression given is that it was the latter.

All of this shows that identifying whether an incident has arisen as a consequence of a police action or omission is easier to describe in the abstract than in reality. For now, the courts are reluctant to strike-out claims against the police, even if analysis of the duty is a legal question, perhaps not requiring evidence. In any event, we will have to wait to see if these police cases are litigated further, to know how the courts will continue to fashion the police’s duties and obligations.