First Do No Harm

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Insurance Article

15 March, 2022

"First do no Harm" is part of the Hippocratic oath that many medical schools still insist their graduates take as part of the qualifying process to become a doctor. The recent Court of Appeal decision in Tindall v Chief Constable of Thames Valley Police (2022) EWCA Civ 25 suggests that a similar promise adopted by local authorities would help ensure that they are not found liable in a number of situations where they have used their powers to intervene in a particular situation. This might be to try to assist a vulnerable child, or perhaps to try to eradicate a danger on the public highway.

Of course, it must be accepted that no local authority would purposelessly set out to do harm or make a situation worse. Yet there are occasions where the authority may become involved and in so doing causes direct harm to an individual due to it acting negligently. That may still give rise to a finding of liability for any harm caused especially if it is clear that a duty of care is owed (eg for a child in care). But what about the situation where the authority intervenes and merely fails to use its powers effectively?

The Tindall case involved Thames Valley Police rather than a local authority in the consideration by the court of these issues. However, the principles arising from the decision of Stuart-Smith L.J. must apply to all public authorities and not simply to the police.

The Facts

In the early hours of 4 March 2014, the police had attended the scene of a non-fatal road traffic accident which had been caused by the presence of black ice on the road surface. Prior to the police's arrival, one of those involved in that collision, Mr Kendall, had remained at the roadside to warn other vehicles of the presence of the ice. The police then placed a 'Police Slow' sign on the road, those involved in the collision were taken to hospital and the vehicles removed from the scene, with the police having been made aware of the location of the ice patch by Mr Kendall. The police then cleared the road of debris and removed the sign they had put out and left the scene. Around 25 minutes later, Mr Tindall was driving along the road when he also became involved in a road traffic accident caused by the same bit of black ice which had caused the first accident. Tragically, Mr Tindall, and the driver of the other vehicle involved in the collision, were killed in that collision.

Mr Tindall's Claim against the Police

Mr Tindall's estate brought proceedings alleging that the Police had assumed a duty of care from their attendance at the first accident and owed the Claimant a duty not to make things worse. Mr Tindall also pursued the local Highway Authority as part of the same action though this was not considered for the purposes of this judgment.

Against the Police, it was alleged that the officers had ineffectively exercised their powers in dealing with the black ice, and thereby made matters worse, by; (a) causing, by their presence, the previous motorist, Mr Kendall to cease his attempts at slowing approaching traffic down (it being accepted that the officers had not positively requested or tried to persuade him to cease that action), (b) removing the Police Slow sign which gave warning to fellow road users, and (c) by not attempting to take any steps to ensure that the black ice was removed or, at least, made less hazardous to motorists, or alternatively closing the road.

The Police's application

The Police applied to strike out the claim arguing that there was no reasonable argument that the Police had a duty of care to Mr Tindall. It argued that:

  • Just as with private individuals, public authorities do not owe a duty to protect others from harm. The only exception to that would be where the public authority positively made matters worse.
  • In respect of the involvement of Mr Kendall, the fact that they did not persuade or order him to leave the scene, meant that this aspect did not apply, even if that could be argued as 'making matters worse'.
  • Likewise, the removal of the sign the officers had placed, did not make matters worse. The road was merely restored to the condition in which they found it.
  • There was no special relationship between the Police and Mr Tindall which warranted the imposition of an assumed duty, and they had no control over the hazard which had formed.

Initially, the application to strike out was refused but the police appealed.

The Police's Appeal

Stuart-Smith LJ outlined the principles, derived from previous authorities, that he considered applied, when considering the extent of the duty of care that the Police (and by analogy a local authority) owe to exercise reasonable care and to protect an individual from harm. These were as follows:

"i) Where a statutory authority is entrusted with a mere power it cannot generally be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. In general, the duty of a public authority is to avoid causing damage, not to prevent future damage due to causes for which they were not responsible: put another way (as it was in the case of East Suffolk RBC v Kent (1941) AC 74) A public authority is not liable for omissions, only for acts;

ii) It follows that a public authority will not generally be held liable where it has intervened but has done so ineffectually so that it has failed to confer a benefit that would have resulted if it had acted competently: see for instance Robinson v chief Constable of West Yorkshire Police (2018) AC 736;

iii) Principle (ii) applies even where it may be said that the public authority's intervention involves it taking control of operations: see East Suffolk case above.

iv) Knowledge of a danger which the public authority has power to address is not sufficient to give rise to a duty of care to address it effectually or to prevent harm arising from that danger: see Stovin v Wise (1996) UKHL 15;

v) Mere arrival of a public authority upon, or presence at, a scene of potential danger is not sufficient to found a duty of care even if members of the public have an expectation that the public authority will intervene to tackle the potential danger: see Capital and Counties v Hampshire CC (1997) 3WLR 331;

vi) The fact that a public authority has intervened in the past in a manner that would confer a benefit on members of the public is not of itself sufficient to give rise to a duty to act again in the same way (or at all): see Gorringe v Calderdale MBC (2004) 1WLR 1057;

vii) In cases involving the police the courts have consistently drawn the distinction between merely acting ineffectually (see for example Alexandrou v Oxford 4 All ER 328) and making matters worse eg. Robinson case above);

viii) The circumstances in which the police will be held to have assumed responsibility to an individual member of the public to protect them from harm are limited. It is not sufficient that the police are specifically alerted and respond to the risk of damage to identified property (Alexandrou case above) ) or injury to members of the public at large see eg Ancell v McDermott (1993) 4 all ER 355 or to an individual see Michael v Chief Constable of South Wales Police (2015) UKSC 2 );

ix) In determining whether a public authority owes a private law duty to an individual, it is material to ask whether the relationship between the authority and the individual is any different from the relationship between the authority and other members of the same class as the individual: see Gorringe case above, per Lord Scott.

Based on those principles extracted from a comprehensive assessment of the relevant caselaw the Court of Appeal over-turned the decision of the Master and allowed the Police's application. In doing so the Court disagreed with the Claimant that the individual or collective actions of the officers had 'made matters worse' in the ways that the Claimant alleged, and there was no other viable basis to impose a duty of care on the facts of this case.

Forbes Comment

Even though it was accepted that the actions of the police had been ineffectual this did not interfere with the requirement that a duty of care existed. In this case, the undoubted failings of the officers were simply not connected to a situation where there was either a duty of care, or an assumed duty of care by the Police. There was no evidence to suggest that the actions taken by those officers had positively 'made matters worse' such as would have triggered that duty of care as indeed happened in Robinson v Chief Constable of West Yorkshire Police cited above.

If we apply these principles and the judgment to let us say local authority social services departments interventions in cases involving children we see a consistency in the continuing development of the law as set out by the Supreme Court in CN and GN v Poole B.C. (2019) UKSC 25 and followed in a number of subsequent judgements. It is now established law that a local authority intervening and merely exercising its statutory powers does not create a duty of care even if those powers are used ineffectually. A duty of care will only be created if there is a clear assumption of responsibility (and as Tindall indicated those situations will be very limited) or, if a positive intervention actually makes matters worse and leads to harm that would not otherwise have occasioned.

So be it the police or a local authority involved, the adoption of a form of the oath espoused by Hippocrates long ago -"whatever you do don't make it worse" is strongly advised.

For more information contact John Myles in our Insurance department via email or phone on 01254 222432. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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