To care, or not to care: when does a public agency owe a private duty?

At a glance

The UK Supreme Court has delivered another judgment dealing with when a public authority can owe a private duty of care to members of the public.
The decision reaffirms what is becoming a bright line distinction in the UK between cases where the public authority, by positive acts, creates a risk or ‘makes things worse’ (where a duty of care will arise) and cases where the public authority merely is alleged to have failed to act to prevent harm by a third party (where a duty of care will not arise, except in exceptional circumstances).
While Australian Appellate Courts and the High Court have not yet had the opportunity to squarely consider this particular UK line of authority, the reasoning is not inconsistent with Australian authorities on novel duties of care generally, and it is at least possible that the concepts will be embraced as part of the Australian common law. This and other cases will give some comfort to agencies seeking to defend claims for failing to confer a benefit / protecting plaintiffs from harm by others, or harm from natural causes.

In 2024, a motorist driving on a country road slipped on black ice. His car rolled into a ditch but he was not badly injured. He realised the icy road would present a danger to other motorists. He phoned the local police (Thames Valley) to alert them of the danger, and, while waiting, waved at other cars to alert them to what was ahead.

The call handler allocated three constables to the job. They arrived at the scene. The motorist who had the crash left in an ambulance. Police temporarily placed a ‘slow down – hazard’ type sign on the road, but they packed it away and drove off with it when they left the scene a short time later. One of the officers had called for a ‘gritter’ to spread salt on the road for traction, but the police officers left before the gritter arrived.

Some ~15 minutes after police left the scene, two motorists were killed in a head-on collision in the same stretch of road, attributable to the black ice, while a passenger was critically injured. The passenger survived but suffered catastrophic injuries.

The officers were found guilty of misconduct in an internal investigation. An inquest was conducted which found police officers “should” have done more.

A surviving widow sued the local constabulary. The chief constable applied to strike out the proceedings, on the grounds that the facts did not disclose a valid claim in law, or alternatively, that the claim had no real prospect of success. That application failed in the High Court (a UK superior court) but succeeded in the Court of Appeal. The widow then appealed again to the Supreme Court (the UK’s highest court). Judgment was handed down on 23 October 2024.

The caselaw regarding duties of care

Lord Leggatt and Lord Burrows wrote the primary judgment, with whom Lord Hodge, Lord Briggs and Lady Simler agreed.

Their Honours noted at the outset that the police officers had unquestionably engaged in a serious dereliction of their duty owed to the public and society at large. But this was not the same as their having owed a private duty of care to individual motorists on the road, including the deceased or his widow.

So, it does not follow that if the Government uses public resources to set up a protective system, and it fails to achieve its purposes in a particular case; then the public should always bear the additional burden of compensating a victim for the harm so caused, particularly if the harm is caused by the actions of a third party for whose behaviour the state is not responsible.

Their Honours stepped through relevant caselaw as to whether a public authority owes a duty of care in analogous circumstances. The principle derived from those cases, broadly speaking, was that a public authority does owe a duty not to do anything to make matters worse than they already are. But it does not owe a duty to intervene and make things better.

So, for example in Michael v Chief Constable of South Wales Police [2015] UKSC 2, the local constabulary owed no duty of care to save a woman in respect of whom they had received a ‘000’ call (on the UK equivalent phone number). The Court in that case affirmed the rule that a public authority owes no duty of care to prevent harm caused by others. The fundamental reason is that the common law does not impose liability for pure omissions. Lord Toulson held in that case: “it is one thing to require a person who embarks on an action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.”

These principles were recently crystalised in the UK in the matter of Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4. In that case, two police officers attempted to arrest a suspected drug dealer in a shopping street. In the ensuing struggle, they accidentally knocked over and injured the plaintiff, a frail elderly lady. In that case the Supreme Court found police liable, because they had taken a positive action (knocking over the woman) and actively caused harm, as opposed to failing to prevent harm caused by others.

Principles

Having regard to these cases, their Honour distilled the following principles:

There is a distinction between making matters worse, where finding of a duty is commonplace, and failing to confer a benefit, where generally there is no duty owed.
Another way of stating the general rule is 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 owed to protect others from risks of physical harm which arise independent of the defendant’s conduct – whether from natural causes or third parties.
A defendant’s conduct has to be viewed as a whole. For example, take a case where a defendant failed to apply a handbrake, leading to a car rolling down a hill and causing damage. On a narrow view, that would be an “omission” case. However, where focus is engaged on the whole of the activity, rather than merely the use of the handbrake, it is clear that the defendant took positive acts – parking on the hill – that should give rise to a duty to take reasonable care not to harm others.
There are exceptions to these general principles, such as whether a defendant has assumed a responsibility to protect a person from harm from a third party.

Principles applied

The plaintiff accepted these principles but said the police officer had made matters worse by removing the ‘slow down – hazard’ type sign before leaving the scene. Alternatively, the plaintiff argued that the case fell within one of the exceptions – the constabulary had, by their actions, assumed responsibility for this patch of road, and therefore owed a duty to protect persons from harm.

Their Honours noted that they accepted as principle part of the plaintiff’s argument, that one of the exceptions to the general rule can be a case where someone does something to dissuade or hamper others from helping a plaintiff in need (and thereby makings things worse). In such a case, a duty of care can arise. Examples include cases where the coastguard negligently directed a Navy helicopter to a wrong area, leading to a missing canoeing party being rescued late and suffering injury and death.

It was argued that police, by attending the scene, had the effect of stopping the motorist from waving his hands at cars, suggesting the Police had therefore made things worse, and a duty was owed. However, their Honours found the problem with this argument was that police had no reason to know that the motorist was waving to passing cars. Police could not have reasonably foreseen that their attendance would displace the motorist’s attempts to stop traffic. It followed that the case did not fall within the exception. The general rule applied. Police had failed undoubtedly to confer a benefit (making the road safer), but they were under no private duty of care to the injured plaintiff to do so.

The plaintiff’s appeal failed; the Court of Appeal’s decision to summarily dismiss the claim was affirmed.

The Takeaways

The bright line distinction between ‘creation of risk’ or ‘failure to intervene’ cases is not a direct feature of Australian jurisprudence. It does not appear as a so called “golden thread” here. Rather, the “salient features” test from Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 prevails as the starting point for consideration of a novel duty of care.

With that said, noting the marked simplicity of the test, it is not difficult to imagine a similar principle being picked up by common law here. As we noted in our update regarding the Full Federal Court’s decision in Sharma, Justice Beach has commented that the very concepts we use to consider whether there is a novel duty through consideration of the salient feature “may have reached their shelf life”. Indeed, the ‘creation of risk’ or ‘failure to intervene’ dichotomy bears some resemblance to the concept of a duty being owed when an agency choosing to ‘enter the field’ as was discussed in Electricity Networks Corporation v Herridge Parties (2022) 276 CLR 271; a decision which made no reference to salient features or Stavar whatsoever.

A consideration of the statutory framework in which a public agency operates will of course always be a starting point for consideration of any duty. We will be watching with interest how Australian Courts then consider the UK authorities in decisions to come.