The duty of care owed by police: a useful restatement

Summary

The Court of Appeal determined that no duty of care was owed by the police to a road user involved in a road traffic collision following their attendance at an earlier road traffic collision at the same location. Whilst officers in attendance at the earlier collision could have taken alternative steps to prevent future harm, the police didn't make matters worse. This was a failure to confer a benefit, not a positive act to give rise to a duty of care.

Background

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. Whilst waiting for the emergency services, he had started to warn vehicles about the ice by signalling to them to slow down. When the police arrived, they put up a “Police Slow” sign. K ceased his attempts to alert other road-users and went to hospital in an ambulance. After dealing with the accident and sweeping the road of debris, the police removed the sign. No one remained to warn traffic and no other steps were taken to alert traffic. The claimant’s husband (“T”) was later driving on the road in question when an oncoming driver (“B”) lost control of their vehicle and collided with his. Sadly, both were 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 or in the alternative for summary judgment.

At first instance, the application was refused. Master McCloud found that it was not fanciful that the police had made matters worse and therefore assumed a duty of care. It was noted 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; what amounted to such an intervention was a very fact-dependent exercise and 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. The Chief Constable appealed.

Decision 

In the leading judgment by Lord Justice Stuart-Smith, with which Lady Justice Thirlwall and Lady Justice Nicola Davies agreed, the appeal was allowed.

When considering whether the police were to be taken as having assumed responsibility to a member of the public to give rise to a duty to exercise reasonable care to protect them from harm, the court determined that the following principles could be derived from the authorities, which was settled law:

1. Where a statutory authority (including the police) 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: see East Suffolk, Stovin;
2. If 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 Capital & Counties, Gorringe, Robinson;
3. Principle (ii) applies even where it may be said that the public authority’s intervention involves it taking control of operations: see East Suffolk, Capital & Counties;
4. 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;
5. 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 & Counties, Sandhar;
6. 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;
7. In cases involving the police the courts have consistently drawn the distinction between merely acting ineffectually (e.g. Ancell, Alexandrou) and making matters worse (e.g. Rigby, Knightly, Robinson);
8. 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) or injury to members of the public at large (Ancell) or to an individual (Michael);
9. 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, per Lord Scott.

As a result, the allegation that negligence on the part of the police caused K to cease his own attempts to warn other motorists was unsupportable. By the time that K decided to leave in the ambulance the police had not done anything that could reasonably be described as negligent which may have contributed to K’s decision to leave, neither had the police made matters worse by putting out their warning sign, sweeping debris from the road, taking down the sign and leaving. The police had been confronted by a dangerous stretch of road which they had power to render less dangerous by a competent response. Whilst they failed to take steps that might have prevented harm being suffered, they did not make matters worse: they merely left the road as they found it.

Equally, the failure to keep the sign in position after leaving the scene was a failure to confer a benefit and not a case of making matters worse to give rise to a duty of care. Furthermore, an appreciation by the police that the road was dangerous because of ice did not impose on them a duty to act to prevent the danger, the existence of which they had not been in any way responsible for. That was not to be equated with a case where a public authority had been responsible for the creation of the danger by the manner in which it had exercised control over a third party or failed to exercise the power to control which it had. There was therefore no feature differentiating the police’s relationship with T from their relationship with any other road-user.

In light of those findings and in accordance with the settled legal principles it could not be said there had been an assumption of responsibility and therefore no duty of care was owed.

Commentary

This case is a useful restatement of the settled legal principles of when a public authority can be said to owe a duty of care to a member of the public and is a useful acknowledgement that non-actionability doctrine remains as robust as ever. In particular, it emphasises that 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 and give rise to a duty of care remain limited.