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.
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.
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:
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.
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?