UK Supreme Court recognises the “Interference Principle” in Tort Law
In Tindall v Chief Constable of Thames Police [2024] UKSC 33, the Supreme Court of the United Kingdom recognised, for the first-time, the interference principle as a principle of tort law. The recognition introduces an important new analytical prism through which future claimants may seek to establish liability relying on this principle to counter the general rule that there is no tortious liability for omissions.
Christina Lee and Keith Cheung consider the principle below.
Facts
In the early hours of 4 March 2014, Martin Kendall lost control of his car on an area of black ice. His car slid and rolled into a roadside ditch. The injury to Mr Kendall was not serious and he realised from his decade of experience as a road-gritter that the cause of his accident presented an imminent danger to other road users. He waved vigorously to a passing van and other traffic trying to encourage them either to stop or slow down so as to avoid any further accident.
In his call to the police, Mr Kendall told them about the cause of accident and warned them of the ice on the road. Mr Kendall was placed in the care of the ambulance service upon their arrival. During that time, a “police slow” sign was placed in the vicinity. The road was swept and debris from the accident was removed. A constable told the police station that attendance of a gritter was necessary but did not communicate the urgency [10]. When the 3 constables left at 05:26, the “police slow” sign was removed.
Between 05:45 to 05:52, Carl Bird lost control of his car on the same area of black ice. His vehicle crossed into the opposite lane and collided head-on with the car driven by Malcolm Tindall. Both Mr Bird and Mr Tindall died either on impact or shortly thereafter [12].
The Independent Police Complaints Commission concluded that the officers had a case to answer for gross negligence manslaughter and misconduct. The Crown Prosecution Service, however, decided not to prosecute. Two officers were nevertheless found guilty of misconduct and a third officer was found guilty of gross misconduct by the police disciplinary tribunal. The jury of a death inquest gave a narrative verdict that the police officers should have done more [15].
Mrs Tindall as administratrix brought proceedings against the Chief Constable of Thames Valley Police for breach of duty of care. The Chief Constable failed to strike out the claim at first instance but succeeded on appeal.
Notably, Mr Kendall’s evidence is that he would have done more (in alerting motorists to the danger) had the police not arrived at the scene. For the purposes of the 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. However, Mrs Tindall accepts the police did not say or do anything to encourage Mr Kendall to stop his attempts or to go in the ambulance [17].
State of the Law
The law of negligence draws a fundamental distinction between “acts” and “omission” which more recent discussions refer to as (1) making matters worse (or harming) and (2) failing to confer a benefit (or to protect from harm).
As a general rule, a person has no common law duty to protect another person from harm or to take care to do so: liability can generally arise only if a person acts in a way which makes another worse off as a result [1]. That distinction, however, is not always an easy one to make. Another way of stating the general rule is to say that a person owes a duty to take care not to expose others to unreasonable and reasonably foreseeable risks of physical harm created by that person’s own conduct. By contrast, no duty of care is in general owed to protect others from risks of physical harm which arise independently of the defendant’s conduct – whether from natural causes or third parties [44(iv)].
As matters stand, the law recognises that:
(1) there is a fundamental distinction between (a) making matters worse, where the finding of a duty of care is commonplace and straightforward, and (b) failing to confer a benefit (including failing to protect a person from harm), where there is generally no duty of care owed;
(2) a difficulty in drawing the distinction is how to identify the baseline relative to which one judges whether the defendant has made matters worse. Case law suggests that the relevant comparison is with what would have happened if the defendant had done nothing at all and had never embarked on the activity which has given rise to the claim. The starting point is that the defendant generally owes no common law duty of care to undertake an activity which may result in benefit to another person. So it is only if carrying out the activity makes another person worse off than if the activity had not been undertaken that liability can arise.
The general rule is not absolute. Two well-established exceptions are (1) where the defendant is in a position of control over the third party who has directly caused the damage and (2) where there is an assumption of responsibility.
Recognising a new principle
Academics Nicholas McBride and Roderick Bagshaw in their book Tort Law (2018, 6th edition) identify what they refer to as the interference principle:
If A [i.e. police] knows or ought to know that B [i.e. driver] is in need of help to avoid some harm, and A knows or ought to know that he has done something to put off or prevent someone else [i.e. Mr Kendall] helping B, then A will owe B a duty to take reasonable steps to give B the help she needs.” (the “Interference Principle”).
In Tort Law (2024, 7th edition), the learned authors expressed some reservations about the Interference Principle.
With this Judgment, the Supreme Court recognised the Interference Principle as a correct statement of English law. The principle, as formulated:
(1) is 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 [56]; and
(2) ensures 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 (i.e. that it was reasonably foreseeable) that its conduct would have this effect [58].
By embracing the Interference Principle, the Court clarified that the decision in OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 was wrongly decided and should be overruled. There, the coastguard misdirected a Royal Navy helicopter to the wrong area in searching for a canoeing party which had got into severe difficulties at sea. Although the party was rescued, four children later died from hypothermia. That decision held, however, the coastguard was not liable in negligence. The Court disagreed. The misdirection given to the Royal Navy helicopter did arguably make the victims worse off and the facts should have been held to fall within the Interference Principle.
Here, however, in order to rely on the Interference Principle, Mrs Tindall 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 [59] (which is missing). The focus of the claimant’s case has been on Mr Kendall’s evidence about what he says he would have done had the police not arrived at the scene. But that is only part of the necessary inquiry. What is also critical is what the police knew or ought to have known about the role of Mr Kendall and what he would have done but for their arrival. As far as the police were concerned, Mr Kendall was someone who had been injured in an accident and no more than that. He was a victim, not a rescuer [62]. There was no evidence to support the contention that the police knew or ought to have known that Mr Kendall had made or was intending to make attempts to alert other motorists to the ice hazard on the road.
Takeaway
On closer scrutiny, the Interference Principle foregrounds knowledge as the basis upon which liability is established but there are two levels of knowledge at play and a claimant would have to establish both. The first requires the potential defendant to know or ought to know that a plaintiff is in need of help to avoid harm. Importantly the second requires the potential defendant to know or ought to know that what they did would put off or prevent someone else from helping the plaintiff. It is in this way that liability is established by reason of one’s interference.
The recognition of this new principle is novel though it does so without disrupting the authorities distinguishing acts and omissions. The Interference Principle does not usurp or erode the omission principle. Instead, the Interference Principle targets the situation of knowing interference of harm prevention. It is that interference with the knowledge that such interference would prevent the positive act of someone else that would render that first person liable.
It will be rare for a private person to interfere in this way. Yet public authorities may need to do more. The claimant lost on very narrow grounds.
As the Court accepts, it is not fatal to the claimant’s case on causation that nothing was specifically said or done by a police officer to encourage or direct Mr Kendall to stop his attempts to warn other motorists and leave in the ambulance. It is enough, to establish causation, that the attendance of the police at the scene had this effect. Nor was there anything untoward in Mr Kendall’s decision to leave. Someone in his position would naturally expect that, once the police had arrived and he had told them about the ice, they would take charge of the situation and alert other road users to the danger. [60]. What is fatal is the absence of knowledge of Mr Kendall’s “warning efforts” [62]. Had Mr Kendall told the police what he had been doing to warn other road users, the outcome would have been different.
Authors
Christina W. Lee
Christina read law as an external student of the University of London and sat the Bar Finals examination of England and Wales in 1988. That year she was called to the English Bar and the Hong Kong Bar. She has developed a practice in personal injuries, medical negligence and insurance related matters over the years.
Before joining the Bar Christina was a simultaneous interpreter with the Hong Kong Government leaving the civil service in 1988 when she was Chief Interpreter (Simultaneous Interpretation).
More details can be found in Christina’s profile.
Keith Cheung
Keith is developing a broad civil practice with particular experience and interest in commercial litigation, company law, insolvency, arbitration, trusts, probate and intellectual property. He has represented domestic, Mainland and overseas clients in Hong Kong and worked with legal teams in offshore litigation in the Cayman Islands and the British Virgin Islands.
Keith is a member of the Chartered Institute of Arbitrators and the Hong Kong Institute of Arbitrators.
Prior to joining the Bar, Keith qualified as a solicitor with a major international law firm. He has received awards from international and domestic mooting competitions including the Best Speaker Award from a practitioners’ moot organised by Essex Court Chambers and the Singapore Academy of Law.
Find out more from Keith’s profile.
This article was first published on 31 October 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.