The plaintiff and appellant Valerie Tindall claimed that the Chief Constable of Thames Valley Police was vicariously liable for the death of her husband Martin. The respondent brought an application to strike out the application on the ground that there was no valid claim in law, which failed at first instance but was successful in the Court of Appeal.

The appeal was heard by Lord Hodge, Lord Briggs, Lord Leggatt, Lord Burrows and Lady Simler. Nicholas Bowen KC, Duncan Fairgrieve KC and David Lemer appeared for the appellants and Andrew Warnock KC and Ella Davis for the respondents.

It made things worse

At approximately 4.30am on 4 March 2014, Mr Martin Kendall lost control of his car on a patch of black ice while traveling on the A413 towards High Wycombe. Mr Kendall, who avoided serious injury when his car rolled into a ditch, realized the black ice was the cause of his accident and began to signal to passing traffic to slow down to try to avoid further accidents.

Mr Kendall then called 101 to alert the police and the incident was allocated to three computers. On arrival they spoke to Mr Kendall and placed a ‘police slow’ sign on the northbound carriageway while they cleared debris from the road and requested a barbecue, without communicating the urgency of the request. At 5:26 a.m., after Mr. Kendall left in an ambulance, officers returned to the police station and removed the “police slowly” sign. The fatal collision between Mr Tindall and another driver happened sometime between 5.45am and 5.52am when another driver lost control of his car on the same patch of black ice.

The Independent Police Complaints Commission concluded that the officers had a record to answer for gross culpable homicide and misconduct in public office. Although there was no prosecution, an inquest concluded he should have done more, including closing the road until the car arrived. Mr Kendall gave a witness statement saying he would have continued efforts to warn other drivers if the police had not arrived, although the claimant accepted the police had not asked him to stop.

The Court of Appeal concluded that, at the highest level, the applicant’s case was that the arrival of the police led Mr Kendall to privately assume that they would act in a certain way and thus influenced him to go to hospital. There was nothing in the claimant’s argument that a duty of care to Mr Tindall arose from the police’s physical control of the accident scene.

For the appellant it was argued that the Court of Appeal raised the bar too high in rejecting the applicant’s case that the police had made the situation worse. It was wrong to ask him to identify a specific positive act which caused Mr Kendall to stop his attempts to warn other drivers. What was critical was that Mr Tindall was at greater risk of physical harm than he would have been if the police had never been on the scene.

A victim, not a savior

In a joint opinion with which the other judges agreed, Lord Leggatt and Lord Burrows began: “There can be no doubt on these facts that the failure of the police officers to take steps to protect road users from the danger posed by the of ice to which the officers had been alerted was a serious breach of their public duties owed to society at large. But it does not follow that they breached a duty of care in the tort of negligence owed to certain persons.”

They continued: “There is a fundamental distinction between aggravation, where a finding of a duty of care is ordinary and simple, and failure to confer a benefit (including failure to protect a person from harm), where there is generally no bond. of due care.”

Assessing the claimant’s case that the police made matters worse, the judges said: “We accept that, on the agreed and alleged facts, the presence of the police at the scene of Mr Kendall’s accident caused Mr Kendall to desist from the attempts he would otherwise have made. they alerted other drivers to the ice on the road. It is not fatal to the plaintiff’s case as to causation that nothing was specifically said or done by a police officer to encourage or direct Mr. Kendall to stop his attempts to warn other drivers and to leave in the ambulance.”

However, they went on to say: “The focus of the claimant’s case centered on Mr Kendall’s evidence about what he says he would have done if the police had not attended the scene. But this is only part of the necessary inquiry. What is also critical is what the police knew or should have known about Mr Kendall’s role and what he would have done had he not come to them. As far as the police were concerned, Mr. Kendall was someone who had been injured in an accident and nothing more. He was a victim, not a savior.”

The judges concluded: “On the facts agreed or alleged in this case, none of the reasons put forward for the existence of a duty of care owed by the police to Mr Tindall withstands scrutiny. Applying the principle of interference, the police could not be held responsible for making the situation worse; and none of the possible exceptions to the general rule that there is no duty of care to protect a person from injury can be established.”

Therefore, the appeal was dismissed.