When Duty Calls, Who Answers?

1. Introduction 

Duty of care is a legal obligation which requires individuals or entities to avoid acts or omissions that could foreseeably cause harm to others. 

Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33 (Tindall) is a recent UK Supreme Court of Appeal decision that considers whether a duty of care is owed to the public, by public authorities. 

This article will explore the Tindall decision and its implications on liability, and particularly, how Western Australian law approaches this duty in similar circumstances. 

2. Facts 

1. On 4 March 2024, Mr Kendall’s car skidded on a patch of black ice on the road, causing him to lose control and roll over into a ditch. Mr Kendall made and emergency call and stood by the side of the road, cautioning other road users to slow down. 
2. The Police attended the scene about 20 minutes later. The Police cleared up the accident debris and put up a “Police Slow” sign. Mr Kendall warned the Police of the dangerous state of the road, before attending the hospital for examination of his minor injuries. 
3. The Police removed their sign and left the scene. They considered that there was no hazard and failed to inspect or remove the sheet of black ice.  
4. At approximately 5:45am, a second accident occurred where both drivers, including Mr Tindall was killed. Mr Tindall’s car was hit by an oncoming car, which has skidded onto the ice and over to the other side of the road. 
5. The appellant, Mr Tindall’s wife, brought a claim against the Chief Constable of Thames Valley Police, alleging that the police’s conduct was negligent. 

Mr Kendall’s evidence was that had he remained at the scene, he would have continued to warn road users, and thereby the accident would have been avoided.

The UK Supreme Court ultimately held that the Police did not owe a duty of care and were not vicariously liable for the claimants’ injuries. The Court considered that the Police are not automatically liable for harm caused by their actions, or inactions unless specific conditions are met. 

In this case, the Court found that there was no ‘special relationship’ between the Police and the claimants, the harm was not foreseeable, and the harm was not within the scope of the Police’s duties. 

The Court held that the public policy considerations outweighed imposing duty of care, as it would have weakened the Police’s operations in an emergency situation. Despite the claimant’s argument that the Police had worsened the situation by displacing Mr Kendall, the Supreme Court ultimately found that no duty of care was owed to Mr Tindall and ruled that the appeal be dismissed. 

3. How does this apply to the Western Australian jurisdiction? 

In Western Australia, the applicable legislation, the Civil Liability Act 2002 (WA) (Civil Liability Act) considers the following relevant factors in determining whether a duty of care exists: 

1. Foreseeability – was the harm foreseeable?
2. Relationship – when considering the relationship between the parties, would it be reasonable that the defendant owed the plaintiff a duty of care?
3. Policy – in circumstances where the matter concerns public authorities, does a duty of care impede the core functions of the entity?

In WA, public authorities do not always owe a duty of care. This is a doctrine that the Courts carefully consider. The Tindall case reinforces the principle that public authorities (such as Police and emergency services) are not always found liable for their actions or inactions. 

Sections 5X and 5Y of the Civil Liability Act considers the broader impact of imposing a duty of care on public authorities, during the scope of their work. Where, if imposing a duty of care would unduly hinder their ability to perform essential services, the Court may be reluctant to impose it. This is similar to the findings in Tindall. 

Over the years we have seen the application of this rule in our High Court. 

1. In Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 it was found that the Minister owed a duty of care to the applicant to exercise reasonable care only in the discharge of his responsibilities;
2. King v Philcox [2015] HCA 19 held that the determination of whether a duty of care is owed considers the nature of the relationship between the parties and the factual circumstances of the case; and
3. Stuart & Anor v Kirkland-Veenstra & Anor [2008] HCATrans 397 emphasised that public policy considerations often influence whether a duty of care is owed by police officers, especially when exercising statutory powers.

4. Conclusion 

The Tindall case reminds us that public authorities aren’t automatically liable for every incident of harm that occurs during their operations. Courts in WA will typically weigh whether there was a specific duty of care owed, especially considering public policy and the nature of emergency services on a case-by-case basis.

This case serves as a reminder that claims where a public authority is a party to the proceedings, careful consideration is required to assess whether a duty was actually owed. 

Whilst each case will turn on its own facts, the key takeaway is that liability requires a clear assumption of responsibility. As professionals working in the insurance and risk practice, understanding these nuances is crucial when assessing a claim. 

So, when duty calls, who answers?