From: Matthew Hoyle <MHoyle@oeclaw.co.uk>

Sent: Wednesday 23 October 2024 12:36

To: 'James Lee'; obligations@uwo.ca

Subject: RE: UK Supreme Court on Duty of Care

Thanks James.

I do wonder whether Darnley can really be analysed in the way the UKSC think it can.

Having said at [45] that one has to analyse the activity as a whole, they then do not do that in relation to Darnley, essentially by isolating the role of the secretary from the wider organisation. The claimant had been injured by a third party. Absent treatment, he was going to develop brain damage (as we know because that is what happened). In other words, if the NHS Trust wasn t there at all, the same outcome would have obtained. The failure of the Trust as a whole was not to make him better off by getting him timely treatment.

By framing it as a duty not to act in such a way as foreseeably to cause physical injury (at [53]) obfuscates the point, because while counterfactually the hospital caused the claimant to suffer brain damage, the operative cause was the progression of the earlier head injury which the hospital did not cause. One can easily frame East Suffolk Rivers in that way the defendant plainly did act in a way which (counterfactually) caused injury to the claimant by failing to properly protect them from the flooding they were already at risk of.

Re-framing it again as Providing misleading information which might

foreseeably cause physical injury is an example of this doesn t really change that, and is again obfuscating the fact that the information was not the operative cause of injury to the claimant (cf. a case where a doctor causes a claimant to take unsuitable medicine which injures them). Why is that any different to building a defective flood defence?

Well, what it does is bring into play Hedley Byrne, because by giving that information the secretary (and hence the trust) was plainly undertaking responsibility for its accuracy.

Contrast all this with turning off the sprinklers in Capital & Counties, which is in essence no different to starting or accelerating the fire (or the doctor prescribing dangerous medicine). If the fire service had not been there, the claimant would have been better off.

I therefore don t think that means the conclusion in this case is wrong to recognise an interference principle where one s actions knowingly deter others from helping (just as much as if one turns of an automated system which would have helped), but I wonder if Darnley does in fact provide support for, or are examples of,  it.

Matthew Hoyle

Barrister

One Essex Court

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From: James Lee <james.lee@kcl.ac.uk>
Sent: 23 October 2024 10:21
To: obligations@uwo.ca
Subject: UK Supreme Court on Duty of Care

Dear Colleagues,

The UK Supreme Court has today given judgment in yet another public authority duty of care case, Tindall v Chief Constable of Thames Valley Police, concerning omissions and assumption of responsibility. The judgment is here https://www.supremecourt.uk/cases/docs/uksc-2023-0059-judgment.pdf

Mr Tindall died in a road traffic accident when his car collided with a car driven by a Mr Bird (who also died), whose vehicle and veered out of control having skidded on black ice.

An hour before that accident, there had been an earlier accident at the same point in the road, caused by the same black ice. A Mr Kendall had suffered injuries when his car rolled over and was not taken to hospital. The police had responded to Mr Kendall s accident, putting up a Police Sign while they attended to clearing debris from the scene. They arrived twenty minutes after the first accident, were there for twenty minutes and then left, taking the sign with them. They did nothing about the black ice itself. The fatal accident occurred twenty minutes later.

The claim was brought by Mrs Tindall s widow, alleging that the police s conduct on those facts was negligent.

The Court of Appeal had held that no duty was owed, with Stuart-Smith LJ giving an impressive judgment https://www.bailii.org/ew/cases/EWCA/Civ/2022/25.html, concluding that there was no duty owed on the facts and the claim should be struck out ([2022] EWCA Civ 25 at [73]-[74]:

There is nothing in the pleaded facts that could justify a finding that the police assumed responsibility to Mr Tindall or other road users. There is no feature differentiating the relationship of the police with Mr Tindall from their relationship with any other road user. There was no arguable pre-existing relationship between the police and Mr Tindall

What occurred was a transient and ineffectual response by officers in the exercise of a power. It did not involve any assumption of responsibility to other road users in general or to Mr Tindall in particular for the prevention of harm caused by a danger for the existence of which the police were not responsible. To hold otherwise would, in my judgment, be inconsistent with the decisions and principles set out in East Suffolk, Stovin, Capital & Counties and Gorringe.

The Supreme Court has now considered the case, with Lord Burrows and Lord Leggatt giving the judgment. The Court unanimously dismisses the appeal, holding that the police did not owe a duty of care and could not be said to have made matters worse:

[20] 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 ice hazard to which the officers had been alerted was a serious dereliction of their public duty owed to society at large. But as noted at the start of this judgment, it does not follow that they were in breach of a duty of care in the tort of negligence owed to particular individuals.

The Court summarises principles from the relevant authorities at [44]-[45], emphasising the need to view the activity as a whole.

However, the Court accepts, it says, for the first time, on the basis of the so-called interference principle here the argument was that the police had interfered as Mr Kendall had been warning other drivers of the black ice danger, and he stopped after that. The work of various members of this list and other academic colleagues is cited  particularly Tofaris & Steel, and McBride & Bagshaw. The Justices state:

[56] Despite the authors recent misgivings, we consider that the interference principle articulated by McBride and Bagshaw is a correct statement of English law. Although there has been no previous English case clearly accepting and applying this principle, it is an alternative way of rationalising the result in Kent v Griffiths and one which this court has endorsed in Darnley. It follows in any case from first principles. It is simply a particular illustration or manifestation of the duty of care not to make matters worse by acting in a way that creates an unreasonable and reasonably foreseeable risk of physical injury to the claimant. There is no reason in principle why the conduct which creates this risk should not consist in acts which are foreseeably likely to have the effect of putting off or preventing someone else from taking steps to protect the claimant from harm. Although it did not involve putting off another person s intervention, the interference by the fire officer in turning off the sprinklers in Capital & Counties is analogous. The sprinklers would otherwise have contained the fire and, by turning them off, the fire service prevented that containment and so made matters worse. There is no material distinction between diverting or displacing an object from protecting the claimant from harm and diverting or displacing a person from doing so.

[58] We also agree with the claimant that the detailed formulation of the interference principle by McBride and Bagshaw is correct. In particular, it is not enough to show that the defendant has acted in a way which had the effect of putting off or preventing someone else from helping the claimant. Rather, in line with the well-established approach to establishing any duty of care, for a duty of care to arise it is necessary to show that the defendant knew or ought to have known (ie that it was reasonably foreseeable) that its conduct would have this effect. 59. When questioned by the court, Nicholas Bowen KC for the claimant rightly accepted the consequence that, to succeed in this case, the claimant would need to show that the police knew or ought reasonably to have known that their conduct had or might have had the effect of putting off or preventing Mr Kendall from warning other motorists of the ice hazard. At this stage in the analysis, however, the claimant runs into a major factual difficulty.

On the facts the Supreme Court holds that that this did not apply, as the police did not know and could not have known that Mr Kendall was warning drivers in this way, as opposed to being a victim.

The Court then determines (from [74]ff) that none of the potential exceptions justifying the imposition of a duty of care there was no assumption of responsibility by the police (which was not in any event emphasised by the claimant), nor had the police taken control of the scene:

[83] The claimant s allegation that the police took control of the accident scene glosses over this point. In so far as the police can be said to have taken control of the scene of the accident, the scene in question was where Mr Kendall s car was located. It is not alleged that the police did anything which could on any view be characterised as taking control of the patch of ice which represented the source of danger. On the contrary, one of the criticisms made of the police is precisely that they did nothing at all about that source of danger. They did not cordon off or close the road. There is no suggestion that they even went to inspect the ice. Indeed, a major complaint is that the police were negligent in failing to inspect the ice or take other necessary measures. That cannot be turned around to say that there was a duty of care consequent on their having taken control of the patch of ice.

The willingness of the Court in principle to accept the interference principle perhaps explains why the Court granted permission in this case, when the Justices were otherwise always likely to dismiss the appeal given recent UKSC authority (eg Robinson, Poole and HXA), and the clarity of the Court of Appeal judgment in this case.

Best wishes,

James

-

James Lee

Professor of English Law 

The Dickson Poon School of Law

Somerset House East Wing

King's College London

Strand

London WC2R 2LS

E-mail: james.lee@kcl.ac.uk

Are you a student? Can I help? My feedback, advice and support hours (in room SW1.12) for the autumn term are Thursdays 10am-12pm and Fridays 2-3pm.

Otherwise, please just get in touch and we can find a mutually convenient time to meet.

Watch: James Lee, 2024 Judge Ian Borrin Lecture, Once Upon a Time in the Common Law: Institutional Narratives and Legal Change https://www.youtube.com/watch?v=GxYsLTx2FzE

Just Published! Jamie Glister and James Lee, Hanbury & Martin s Modern Equity, 23rd edition, Sweet & Maxwell, September 2024

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