Executive Summary
In an admirably clear and accessible judgement, the United Kingdom Supreme Court ("UKSC") has found in favour of the Police Defendant notwithstanding the difficult factual basis of the case. This article explains why the UKSC found as it did and why it was right to do so. David Knapp, the partner at DAC Beachcroft who ran the defence of the claim from the start and who has over 35 years of experience in defending claims brought against the public sector, brings that experience to this article.
The Facts
Whilst an uncomplicated case, the simplified facts are as follows. On 14 March 2014 at around 04:30, a driver, K, lost control of his car on black ice on the A413. K was injured but not seriously. He realised that the black ice presented an imminent threat to road users. He said in a later witness statement that he tried to alert or slow down traffic.
He also called 101 and, in a recorded call, spoke to the police civilian call handler. He relayed the accident facts, his injuries and that he had tried to stop a passing van. He explained there was ice all over the road which had caused him to spin off. The call handler informed K that police officers would attend, they had been warned about the ice and that the road was dark and fast.
During that time, K did not seek to flag down traffic and, by the end of the call, police officers arrived. It was accepted that they knew the relevant circumstances of Ks accident and an attending firefighter said "I'm sure there will be another one joining it later." The officers also spoke to K and took details of the accident. K was then dealt with by paramedics and taken to hospital.
The police officers did very little at the scene. They placed a "Police Slow" sign up in one direction but removed it as they left. They swept the road and called for a council gritter before leaving with the fire crew.
Shortly afterwards, a car driven by B lost control on the same black ice area and collided with the car driven by the claimant's husband. Tragically, both were killed.
Subsequently, at a disciplinary hearing, one attending officer was found guilty of gross misconduct, the other two officers were found guilty of misconduct. At the subsequent inquest, a jury found the officers "should" have done more after attending Ks accident, namely remaining at the scene until gritters arrived, closing the road and placing warning signs.
For the purposes of the hearing, the police accepted that if they had not arrived, K would have continued to alert other road users at the scene. The claimant accepted that the police did not say or do anything to encourage K to leave the scene or persuade him to leave.
At this stage, we observe that the errors of the officers occurred at the end of a shift on what was plainly a cold winter's night. Tragically, errors of omission by front line public sector employees (whether they be emergency services or social workers or clinicians) can have tragic consequences and those of us who are not "on the front line" should perhaps reflect gratefully on that.
Proceedings
The claim was brought in the High Court against the local authority, their highway contractors and the police. The police applied to strike out the claim on the basis that no duty of care was owed as a matter of law. This proceeded unsuccessfully before Master McCloud. The appeal to her decision was leapfrogged to the Court of Appeal where the police succeeded. Permission to appeal was granted by the UKSC and their decision is here.
The UKSC judgement
The judgement provides a magisterial yet highly readable review of the development of the law and references authorities known to many, namely Capital and Counties, Gorringe, Michael and Robinson. Cases referred to approvingly were CN and HXA. These are key for an understanding of the duty of care owed by public authorities and the UKSC distilled the relevant principles in the judgement. In particular, the UKSC explained the difference between a public authority failing to protect (for which they are generally not liable) and making matters worse (for which the public authority would be liable).
Interestingly, the judgement approved of the "interference principle", a principle previously cited with some diffidence by academics. This is best identified in the well-known Capital and Counties case where a Fire Officer interfered by turning off sprinklers whilst seeking to fight the fire. That interference made the harm worse.
The UKSC then analysed the facts. On the facts, there was no evidence that K was a rescuer rather than a victim. K did not inform the call handler that he was trying to slow traffic as a warning. He told neither the handler nor police officers of any intention to make attempts to warn traffic. In short, there was no evidence that the police knew or ought to have known that K had made or was intending to make attempts to alert other motorists about the black ice hazard. Indeed, the reference to the van was consistent, in the context of the 101 call, to K seeking assistance for himself.
In the circumstances, the claimant's principal argument that the police displaced K as a rescuer failed, no duty of care was owed. Other legal arguments were more summarily dismissed. On the facts there could be no assumption of responsibility by the officers and that well-travelled route was a cul de sac.
The remaining argument for the claimant was that they took control of the scene but this was correctly dismissed. The authorities are clear that taking steps which are ineffectual, whether because they are inadequate to begin with or because the defendant does not persist with them cannot (as here) give rise to a duty of care.
There is much more of value to read in the judgement. It is accepted that the officers in the case made errors for which they were disciplined. It is however an old legal maxim that hard cases make good law and, having regard to the pressures upon hard pressed front line public sector professionals, it is firmly our view that this judgement was the right one.
David Knapp is a Partner within the Specialist Liability Team at DACB CSG. Should you have any questions about the article or the judgement, please contact him or one of the other authors below.
