Valerie Tindall v Chief Constable of Thames Valley Police
| Jurisdiction | England & Wales |
| Judge | Master McCloud |
| Judgment Date | 07 April 2020 |
| Neutral Citation | [2020] EWHC 837 (QB) |
| Date | 07 April 2020 |
| Docket Number | * |
| Court | Queen's Bench Division |
[2020] EWHC 837 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Master McCloud
*
Mr N. Bowen QC and Mr D. Lemur instructed by Messrs Howard Kennedy LLP for the Claimants.
Mr D. Warnock QC instructed by Messrs DAC Beachcroft for the 1 st Defendant.
Hughes v Colin Richards & Co [2004] P.N.L.R. 35, CA
White Book 2019, commentary at CPR 3.4.2
Farah v British Airways, The Times, 26 January 2000
Barrett v Enfield LBC [2001] 2 AC 550
Poole Borough Council v GN [2019] UKSC 25
Gorringe v Calderdale MBC [2004] 1 WLR 1057
Mitchell v Glasgow City Council [2009] 1 AC 874
Summary Judgment
Three Rivers DC v Bank of England (No.3) [2001] 2 All E.R. 513
Swain v Hillman [2001] 1 All ER 91 (White Book 2019 24.2.3)
Fashion Gossip Ltd v Esprit Telecoms UK Ltd July 27, 2000, unrep., CA
Day v RAC Motoring Services Ltd [1999] 1 All E.R. 1007
White Book 2019 CPR 24.2.5
Negligence
Sheppard v Glossop Corpn [1921] 3 KB 132
East Suffolk Rivers Catchment Board v Kent [1941] AC 74
Dorset Yacht Co Ltd v Home Office [1970] AC 1004
Anns v Merton London Borough Council [1978] AC 728)
Smith v Littlewoods Ltd [1987] AC 241 §
Clough v Bussan [1990] 1 All ER 431
Ancell v McDermott [1993] 4 All ER 328
Capital and Counties v Hampshire [1997] QB 1004
OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897
Daly v Surrey County Council (QBD, 24 October 1997)
Gibson v Orr [1999] SC 420
Palmer v Tees [2000] PIQR P1 CA
Modbury Triangle Shopping Centre Ltd v Anzil (2000) 205 CLR 254
Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057
Couch v Attorney General (No 1) [2008] 3 NZLR 725
Van Colle v Chief Constable of Hertfordshire [2009] 1 AC 225
Michael v Chief Constable of South Wales [2015] AC 1732
A J Allan (Blairnyle) Limited and another v Strathclyde Fire Board Extra Division, [2016] CSIH
Robinson v Chief Constable of West Yorkshire [2018] UKSC 4
Poole Borough Council v GN [2019] UKSC 25
Legislation
Section 41 of the Highways Act 1980
Striking Out
CPR part 3.4(2)(a)
Articles / Texts
Craig Purshouse “Arrested development: Police negligence and the Caparo test for duty of care” (2014) 23 Torts Law Journal 1
Clerk & Lindsell (22 nd ed) 8–50
Negligence Liability of Public Authorities (2 nd ed.) by Fairgrieve and Squires, para 12.58–12.64
Negligence Liability for Omissions and the Police Tofaris and Steel in their article [2016] CLJ 128
Keywords: Tort — duty of care — acts — omissions — personal injury — road traffic — police — rescue — emergency — ice — negligence — highways
This judgment is about the circumstances in which a duty of care arises falling upon the police in the context of their actions at the scene of a road accident caused by locally icy and dangerous road conditions as a result of a water leak and flooding. Here the Claimant says that the Police attending the scene assumed or fell under a duty of care towards Mr Tindall. The Police say they did not.
This judgment is, as with many at this time, produced under less than ideal circumstances due to a pandemic infection affecting court business and it has been delayed due to its author's own symptoms now resolving. I apologise to the parties for delay, and possibly to the relief of the parties I shall keep this judgment shorter than might otherwise be expected – at least from this judge — whilst nonetheless providing the basis and reasons for my decision. It appears likely that the losing party will wish to appeal either this decision or, ultimately, a final decision at trial and I shall be willing to determine permission to appeal and destination of appeal by email if desired.
The losing party in this case are the 1 st Defendants. I have taken the view that with the law as to imposition of duty of care being in the state of flux which it is, and with any duty of care being a fact-dependant decision if there are issues as to whether the case concerns the issue of ‘making matters worse’ or ‘not making things better’ as illustrated for example in CC Essex Police v Transport Arendonk BVBA (2020) [2020] 1 WLUK 192, to strike this case out without trial would be incorrect. It is a matter for trial on the evidence. I have considered the various authorities and simply put it is going to have to be a matter for trial to determine whether this case is one of ‘making matters worse’ or not.
The facts
Since this is a strike out application I am proceeding on the pleaded facts. Here, a driver called Mr Kendall had an accident on a fairly fast stretch of country road, on a winter morning when a portion of the road had been frozen over causing black ice due to a nearby water leak and flooding. The vehicle came off the road. Mr Kendall sustained non life-threatening injuries. By chance, Mr Kendall had worked as a road gritter, and was familiar with the stretch of road in question. He was very concerned that any further vehicles coming at speed down that road would encounter the unexpected ice and have accidents. At the scene of the accident whilst awaiting for rescue he started to warn vehicles in the road by signalling to them to slow down. When the police attended he stressed to them that the situation was dangerous. He had stressed that when he made his emergency call.
During the rescue the police put out a warning sign, and then once the accident was cleared sufficiently and the road swept of any debris and Mr Kendall removed to hospital, the police at the scene removed the sign and left the site effectively as it had been prior to Mr Kendall's accident, which is to say covered in black ice and dangerous. Nobody remained to warn traffic, no signs were left and no functional steps were taken at the site to ensure further traffic knew of the hazard once the police left.
Not long afterwards Mr Tindall was driving his vehicle on the same stretch of the road. An oncoming driver (Mr Bird) lost control on the ice, and there was a head-on collision with Mr Tindall's vehicle. Mr Tindall was killed. Mr Bird was killed. A passenger in Mr Bird's car was airlifted to hospital and survived. I understand that there was an investigation and inquest and that there was significant criticism of the police officers who had attended the first accident for not following correct procedure. The IPCC concluded that three officers had a case to answer for gross negligence manslaughter and misconduct in public office, the file went to the CPS but no prosecution ensued. A police disciplinary tribunal found the officers guilty of misconduct and also that there were failures in operational training. The inquest gave a narrative verdict that more should have been done, and as to various facts such as the immediate cause of accident (ice) and that the highway authority and police based on the verbal information received should have carried out an investigation at the scene and that steps should have been taken including placement of signs, requesting gritters and staying on site until they arrived, closing roads, and requesting appropriate support.
. It is pleaded that by removing Mr Kendall from the scene (and not leaving the road safe) they police took a positive step in that they caused the warnings to other drivers to cease, making matters worse than they would have been if they had never attended. Mr Kendall has produced a statement in support of the claimant's case. He says among other things “it was obvious to me, and should have been obvious to anyone attending and seeing the sheet ice, that another accident was likely to occur if I had realised that no help was going to be forthcoming from the police, I would have done my very best to warn other motorists of the sheet ice and in fact, I tried to do precisely that when attempting to flag down the van described [above] and before dialling 101. … I would certainly have continued to wave my arms and would have attempted to stop each car that passed by. I considered myself to have been extremely lucky to have avoided serious injury. Something far worse could have happened to me and...
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