The police generally owe no duty to protect individuals from harm caused by third parties or natural hazards. This strict rule, restated in Michael, remains good law. However, in Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33, the Supreme Court has provided a salutary clarification of the doctrinal uncertainty surrounding “ineffectual interventions” exception.
The facts were tragic. A driver, Mr. Kendall, lost control on black ice. Uninjured, he began signaling to approaching traffic. Police officers attended, cleared debris, and erected a warning sign. However, upon clearing the debris, they removed the sign and departed, leaving the ice exactly as dangerous as they found it. Shortly thereafter, another driver hit the ice and crashed, killing himself and a third party, Mr. Tindall.
The claimant argued that by taking control of the scene and then abandoning it, the police had assumed a duty of care. The Supreme Court disagreed. Lord Leggatt and Lord Burrows (delivering the unanimous judgment) reaffirming the rule in Michael v Chief Constable of South Wales [2015] UKSC 2, the Court held that liability arises only where the authority has created the danger or made matters worse than if they had never attended at all.
The Interference Principle
Lord Leggatt’s judgment is notable for its compelling articulation of the “interference principle” (from McBride & Bagshaw). This establishes that an authority acts with actionable misfeasance if its conduct actively worsens the victim’s position, either by creating a new peril or by disabling an alternative source of rescue.
His Lordship accepted that there is no logical distinction between turning off a protective device (as in the sprinklers in Capital & Counties plc v Hampshire County Council [1997] Q.B. 1004) and sending away a rescuer (as in OLL Ltd v Secretary of State for Transport [1997] 3 All E.R. 897, where the Coastguard misdirected a Navy helicopter). In both instances, the intervention transforms a passive failure into one of active harm.
This synthesis brings welcome clarity to the “misleading assurances” line of authority. As Lord Leggatt observed (at [53]), cases like Kent v Griffiths [2001] QB 36 and Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, are properly understood not as exceptions to the omissions rule, but as examples of positive acts: the provision of misinformation is an active intervention that foreseeably causes physical injury. This is apposite since public authorities “monopolise” a rescue, and by regarding it as a positive act, the Supreme Court has provided a conceptual tool that converts what appears to be a passive failure into actionable harm. It is submitted that this approach is conceptually sound; it prevents the anomalous result where an authority could demand bystanders stand back, fail to assist, and then claim it “did nothing”.
Activity as a Whole
Crucially, Lord Leggatt held that the law must look at “the activity as a whole” (at [45]). This contextual approach prevents the artificial “slicing” of conduct by a public authority.
Once a positive act is initiated, the entire intervention is treated as a single unit. Consequently, any subsequent negligent omission, in its execution, becomes part of a positive course of conduct. It is submitted that this is a principled position; it recognises that an authority cannot escape liability for a danger it has effectively managed and then mismanaged. It also represents a shift back to the negligence orthodoxy re-established by Lord Reed in Robinson [2018] UKSC 4 against granting public immunity where a duty of care clearly exists on established principles.
Incompetence is not Interference
Finally, the judgment draws a necessary distinction between “incompetence” and “interference”. Lord Leggatt distinguished between “failing to confer a benefit” and displacing an existing protection (at [44] and [56]).
With respect to an “incompetence”, Lord Leggatt reasoned (applying the principle in East Suffolk Rivers Catchment Board v Kent [1941] AC 74) that an authority is protected from liability if it merely fails to improve a situation relative to the baseline of “no rescue”. Incompetence (marked by a failure to make matters better) is not a tort. Conversely, a true interference arises where the authority’s intervention leaves the victim worse off than the “no rescue” baseline (e.g., by stopping Mr. Kendall’s warnings).
It is correct that the law maintains this strict policy. In Tindall, the police were merely incompetent (non-legal sense) for failing to keep the sign up; they did not make the ice worse than it was before they arrived. To hold otherwise would encourage “defensive policing”, deterring officers from responding to unclear risks for fear that any partial or ineffectual attempt to help would attract immediate litigation.
