'Failure To Remove' Claims: Some Further Developments

• Published date: 24 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: 1 Chancery Lane
• Author: Paul Stagg

The new year is not yet a month old and yet there have already been two significant judgments handed down since the last strains of Auld Lang Syne died out. Both are of considerable assistance to those defending 'failure to remove' claims against local authorities.

Negligence Claims: the Tindall Case

In a series of articles published last year, I analysed in detail the decisions at first instance in HXA v Surrey CC [2021] EWHC 250 (QB) [link] and YXA v Wolverhampton CC [2021] EWHC 1444 (QB), [2021] PIQR P19 [link], and the decision of Stacey J on appeal [link]. A further article by my colleague Katie Ayres looked at the decision of Lambert J in DFX v Coventry CC [2021] EWHC 1382 (QB), [2021] PIQR P18 [link]. The claimants in HXA and YXA have now sought permission to appeal to the Court of Appeal. The outcomes of the stalled appeal in Champion v Surrey CC and the part-heard application in DEF v Kirklees MBC are awaited.

The focus of the argument in the cases decided to date has been on whether a duty of care is owed by virtue of an assumption of responsibility by the defendant. The decision in Tindall v Chief Constable of Thames Valley Police [2022] EWCA Civ 22 focuses principally on other exceptions to the general rule, which have not yet been the subject of any decision in the context of 'failure to remove'-type claims. It will be recalled that in N v Poole BC [2019] UKSC 25, [2020] AC 780 at [76], the Supreme Court approved the following summary of the exceptions from an article.

In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A's status creates an obligation to protect B from that danger.

As the name of the case makes clear, the case is nothing to do with social services. It concerned a road traffic accident on a freezing spring morning in 2014 on the A413. Black ice had formed on a section of the road. Very early in the morning, a passing motorist, Mr K had skidded on the ice and crashed. He was hurt, though not seriously. He telephoned the police and reported his accident, and the fact that there was ice on the road. Officers arrived about 20 minutes later, and in the meantime Mr K was seeking to alert other road users to the danger. The officers were informed by Mr K of the danger, cleared the road of debris and placed a sign on the road to instruct motorists to go slowly. Insufficient attempts were made to secure the attendance of a gritting lorry. Mr K was taken away in an ambulance. The officers then removed the sign and left the scene. Some 20 minutes later, the claimant's husband was driving along the road when a driver coming in the opposite direction lost control on the ice and collided with his car. Both, tragically, were killed.

The pleaded case against the police was that the officers had made the danger worse in that following their attendance, Mr K ceased his efforts to warn vehicles. They had also failed to take proper steps to protect motorists using the road.

In her judgment [2020] EWHC 837 (QB), [2021] RTR 1, Master McCloud dismissed the police's application to strike out. An appeal was directed to proceed directly to the Court of Appeal.

Giving judgment for the Court of Appeal, Stuart-Smith LJ reviewed the authorities in detail at [23]-[53]. He gave a useful summary at [54] in the following terms (citations omitted):

i) Where a statutory authority (including the police) is entrusted with a mere power it cannot generally be made liable for any damage sustained by a member...