Valerie Tindall v Chief Constable of Thames Valley Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith,Lady Justice Nicola Davies,Lady Justice Thirlwall |
| Judgment Date | 18 January 2022 |
| Neutral Citation | [2022] EWCA Civ 25 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2020/1857 |
[2022] EWCA Civ 25
Lady Justice Thirlwall
Lady Justice Nicola Davies
and
Lord Justice Stuart-Smith
Case No: B3/2020/1857
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MASTER MCCLOUD
[2020] EWHC 837 (QBD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Bowen QC, David Lemer and Duncan Fairgrieve (instructed by Howard Kennedy LLP) for the Respondents/Claimants
Andrew Warnock QC and Ella Davis (instructed by DAC Beachcroft Claims Ltd) for the Appellant/First Defendant
Hearing dates: 5–6 October 2021
Remote hand-down: This judgment was handed down remotely at 10.30am on 18 January 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
Approved Judgment
Introduction
The issue in this appeal is whether the facts pleaded by the Claimant against the First Defendant [“the Chief Constable”] disclose a reasonable cause of action in tort, capable of giving rise to an award of substantial damages. The Chief Constable applied to strike out the Claimant's claim against him as disclosing no reasonable cause of action or, alternatively, for summary judgment, Master McCloud refused both applications. The Chief Constable now appeals against the Master's refusal.
The proceedings arise out of a fatal road traffic accident which occurred at about 5.45 am on 4 March 2014 and which, for the purposes of this appeal, must be taken to have occurred in the circumstances set out in the Claimant's Statements of Case. In briefest outline, the Claimant claims as the widow and administratrix of the estate of her late husband, Mr Malcolm Tindall, who was killed while driving on the A413 road between Wendover and Amersham. A car driven in the opposite direction by a Mr Carl Bird went out of control on black ice and collided head-on with Mr Tindall's car. Mr Bird was also killed.
There had been another accident on the same stretch of road about an hour earlier, also caused by black ice. In the first accident the driver, Mr Kendall, had lost control of his car, which rolled over and ended up in the ditch, causing him to suffer injuries for which he was taken to hospital. Police officers, for whom the Chief Constable is responsible, attended the scene of the first accident. They arrived about 20 minutes after it had happened and were there for about 20 minutes. While there they cleared debris from the road and put up a “Police Slow” sign by the carriageway. Having done that, they left the scene about 20 minutes or so before the fatal accident that is the subject of these proceedings, taking their “Police Slow” sign with them. It is alleged that their conduct at and on leaving the scene was negligent and that the Chief Constable is vicariously liable to the Claimant in tort.
The Facts
Master McCloud provided a summary of the facts as alleged by the Claimant.
“4. … 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.
5. 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.
6. 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. …”
Additional facts pleaded in the Claimant's Particulars of Claim included that during the 13 minutes that he was on the phone to the call handler, which continued up to the arrival of the first police car, Mr Kendall was unable to continue his attempts to stop the traffic. He told the call handler that his back and chest were hurting and that he had tried to flag down a van, which slowed but did not stop. He told the call handler that there was ice all over the road which was the reason he had spun off and was informed by the call handler that officers were on their way and that they had been warned about the ice and that the road was dark and fast. But for his contact with the police call handler and the subsequent engagement and arrival of the police Mr Kendall would have persisted in his attempts to slow or stop the traffic to prevent any further accidents caused by the patch of black ice. At or around the time that Mr Kendall finished talking to the call handler (during which he had not been attempting to alert traffic) police officers had arrived and first placed then removed a single warning sign. The fire and ambulance services arrived at about the same time as the police and Mr Kendall was taken to hospital.
In relation to the police response, the Claimant pleads that two police constables arrived at 5.03 am. A third officer attended three minutes later. All three officers understood that they were being called to an incident where there was a hazard consisting of ice in that area. One police officer placed the only “Police Slow” sign that they had with them on the northbound carriageway (i.e. the carriageway for Mr Bird's subsequent direction of travel) after ensuring that Mr Kendall was not seriously injured. A second officer checked the road for debris and swept the road. All three officers were aware of the ice hazard on the carriageway and of Mr Kendall's concern that it was very dangerous. One officer made a call to his control centre requesting a gritter, though it is alleged that his request was insufficiently “robust” and did not communicate the urgency of the situation. The three officers remained on the scene until 5.26 am when they left, taking the single “Police Slow” sign with them. They did so believing that there was no hazard and having failed to discover or inspect the sheet ice. The fatal accident happened about 20–25 minutes later.
Apart from alleging that the “Police Slow” sign was placed on the northbound carriageway, the pleadings do not disclose where it was in relation to Mr Kendall's car, the debris that was cleared by the police, or the area of black ice. The Particulars of Claim allege that Mr Bird was travelling northbound when he lost control “on a localised but large area of black ice outside Mapridge Cottage”. His car then crossed into the path of Mr Tindall's car, which was travelling in the opposite direction. The Particulars of Claim also allege that water had been present on the section of the road close to Mapridge Cottage for some weeks prior to the accident. This last allegation appears to be primarily or solely relevant to the claim against the second defendant Highway Authority.
During the hearing, it was necessary to clarify precisely what was being said on each side about Mr Kendall leaving the scene. For the purposes of this appeal the Chief Constable accepts that, but for the arrival of the police, Mr Kendall would have continued his attempts to alert other road users. For her part, the Claimant accepts that it was simply the arrival of the police on the scene that influenced Mr Kendall to go in the ambulance. The police did not say or do anything (either directly to Mr Kendall or generally) to encourage him to stop his attempts or to go in the ambulance; still less did they direct or in any way coerce him to stop what he was doing or to leave. The explanation for his decision to go in the ambulance (if any explanation is needed for someone who was removed on a body board) was his private expectation and assumption that the police would take over and alert road users to the danger. Specifically, the Claimant's reference in her skeleton argument to the police “placing Mr Kendall into the care of the ambulance service” implies no coercion or encouragement to Mr Kendall to stop his attempts to alert other road users. That is clear from the witness statement of Mr Kendall that forms the basis for the reference in the skeleton argument, where Mr Kendall said: “I spoke to one of the police who had arrived and he walked with me back to my car and examined it. He conducted a negative breath test then placed me into the care of the ambulance service, which had also arrived, along with the fire brigade. At this stage, I assumed that the police were clearly in control of the scene so thought no more about it and was treated at the scene then transported by ambulance to hospital.”
The pleaded allegation that the officers “having promptly attended were in a position to (and did) take control of the accident scene but their...
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