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Critical Analysis of the Courts' Approach to the Question of Duty of Care in the Public Sector, Was the decision in Kent v Griffiths and others 'the right decision for the wrong reasons?
As the law stood in 2001, when Kent v Griffiths was decided, it was very difficult to hold a public authority liable in tort. The test that had to be satisfied, apart from the ordinary Caparo Industries (Caparo Industrees Plc v Dickman  2AC 605) test, was the one laid down by Lord Browne-Wilkinson in the House of Lords in X (minors) v Bedfordshire (X (minors) v Bedfordshire County Council  3 All ER 353). This required that when suing a public authority for acting negligently in the exercise of its statutory duties, you had to first show that the authority’s action was one that could rightfully be challenged in tort. For Lord Browne-Wilkinson this meant that “Where parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law”. It is only when the authority has acted outside that discretion that, “it can (but not necessarily will) give rise to common law liability”. And even in such cases, the court will only be able to find in favour of a plaintiff if the issue did not involve policy decisions (ibid. at 379-380).
In Barrett v Enfield London Borough Council (Barrett v Enfield London Borough Council  3 All ER 193) Lord Hutton relied on a similar concept of justifiable and non-justifiable issues. You could not bring a negligence claim if the area was considered to be a non-justifiable issue.
These cases also mentioned the approach first seen in Home Office v Dorset Yacht Co Ltd (Home Office v Dorset Yacht Co Ltd  2 All ER 294) and adopted in Anns v Merton London Borough Council (Anns v Merton London Borough Council  AC 728) which distinguishes between policy and operation. In essence, what this means is that if the act you are challenging was a public or political policy decision, it will be non-justifiable, but if you are rather claiming negligence in the operation or carrying out of the policy, you may have an action.
All of these tests have been difficult to apply in practice, but have generally succeeded in making it very difficult to sue public authorities for negligence.
From this basis, it is quite easy to see how plaintiffs who claim negligence on the part of emergency rescue services may run into difficulties with issues of justification. The case law clearly shows these difficulties. At the same time, even if they can pass these hurdles, plaintiffs still run into difficulties in establishing the Caparo principles, particularly in the light of the common law dealing with rescue.
As most people are aware, there is no common-law duty to perform rescues, no matter how simple, and establishing a duty of care in emergency rescue circumstances can be very difficult. Ever since the US case of Osterlind v Hill (Osterlind v Hill 160 NE 301 (1928)) where a strong swimmer watched one of his canoe rental customers drown without taking the slightest steps to help out, the common-law has given no one any reason to doubt its position. This was confirmed in Barrett v Ministry of Defence (Barrett v Ministry of Defence  3 All ER 87) where the Ministry of Defence basically watched a lonely soldier drink himself to death in the wilds of Norway.
In X (minors) v Bedfordshire (Above, note 2) and Stovin v Wise (Stovin v Wise  AC 923) this view was completely assumed, and upheld implicitly. In Stovin, Lord Hoffman stated that the failure of a public authority to rescue a plaintiff was incapable of giving rise to liability unless Parliament specifically laid out a “right to financial compensation if the power has not been exercised” (ibid. at 955).
Taking all of these difficulties into consideration, we see that emergency services generally do not owe a duty of care when they are called out. In Alexandrou v Oxford (Alexandrou v Oxford  4 All ER 328) where the police went to a shop to investigate a burglar alarm but negligently failed to detect the burglar before leaving the premises, it was held that the police owed no duty of care to the plaintiff as to find one would go against public policy and, in any event, the plaintiff had failed to show sufficient proximity between himself and the police. Similarly in Ancell v McDermott (Ancell v McDermott  4 All ER 355) it was held that the police owed no duty of care to road users in warning them of hazards on highways which were known to them. While cases such as Knightley v Johns (Knightley v Johns  WLR 349) and Rigby v Chief Constable of Northamptonshire (Rigby v Chief Constable of Northamptonshire  1 WLR 1242) show how the police can be found to owe a duty of care to individuals, this will only be in very limited circumstances and with a very close connection between the claimant and the public authority.
Apart from cases dealing with the police, similar difficulties are encountered when attempting to sue the fire authorities, as Capital and Counties plc v Hampshire County Council (Capital and Counties plc v Hampshire County Council  QB 104) shows. This was in fact three separate cases consolidated into one. In the Hampshire case, a fire officer had negligently turned off an automatic sprinkler system. In Monroe v London Fire Brigade the fire officers had left an area around an explosion without properly making sure that there was no risk of fire. In Church of Jesus Christ of Latter Day Saints v West Yorkshire and Civil Defence Authority the fire authority had negligently failed to ensure there was an adequate supply of water to combat a fire. The Court of Appeal first held that a fire authority owed no duty of care simply by virtue of being called for help. The court next held that once on scene of the fire, the assumption of responsibility for tackling the fire and the reliance placed on the fire authority was still insufficient to place a duty of care on the fire authority. As a result, only the Hampshire case was successful on the grounds that the fire authority had physically caused the damaged in this case. In both other cases, it was settled that the fire authority owed no duty of care to those who relied on their services.
I will quickly mention the cases of Costello v Chief Constable of Northumbria Police (Costello v Chief Constable of the Northumbria Police  1 All ER 550) where the court held that only in exceptional cases would one police officer owe a duty of care to rescue another, and OLL Ltd. v Secretary of State for Transport (OLL Ltd. v Secretary of State for Transport  3 All ER 897) where the same principles were held to apply to the coastguard.
It is in the light of all this previous case law that the significance of the decision in Kent v Griffiths (Kent v Griffiths  2 All ER 474) must be assessed.
In Griffiths, the claimant, a pregnant woman with asthma, suffered an asthma attack in her home. Her doctor called 999 for an ambulance. They had to call twice and in the end, the ambulance arrived after 40 minutes. The ambulance, under its own guidelines, should have arrived within 14 minutes, and the crew falsified its response time in their logbook. The claimant was given oxygen intermittently on the 10-minute journey back to the hospital. She suffered a respiratory arrest, was brain damaged and her baby miscarried. She sued the ambulance service for personal injury.
In the first instance, it was found that the ambulance had not arrived within a reasonable time and no explanation had been offered. It was further held that this was the cause of the respiratory arrest and subsequent injury. Turner J stated that he would find it “offensive to, and inconsistent with, concepts of common humanity” if in circumstances such as these, no duty of care existed. He therefore found that where an ambulance service was in a position to supply a timeous rescue, and had accepted to do so, it owed a duty of care to the rescuee as an individual patient.
This was truly a remarkable decision in light of all the previous case law we have seen. Up until then, it had been consistently held that emergency services owed no duty of care to those who they were assisting, unless they created the danger or caused the damage themselves (Above, note 13). This decision had the potential of placing all emergency services under a duty of care to those who they were rescuing, in circumstances where they themselves were not the creator of the harm. This would mean the police and fire authorities, ambulance services and the coastguard would no longer be immune to liability for negligence. However, this was not to be.
When the case reached the Court of Appeal, Turner J’s decision was upheld, but the reasoning of Lord Woolf MR, who gave the judgement of the court, closed the potential for such an interpretation to services beyond ambulances. He said that the duty of care in this instance was present solely on the basis of its particular facts and that no general principle was being created. He said that what was being provided here was a health service, which have long been under a duty of care to patients, and not just an emergency service. Therefore, similar cases for police, firemen and the coastguard will be easily distinguished. This is because while all other emergency services are protecting the public at large, the ambulance is only out to protect the individual patient.
He said that also, there was no question of conflict of priorities, or of matters of policy or allocation of resources, which would all clearly be non-justifiable per Bedfordshire (Above, note 2). The injury was completely foreseeable and had not been challenged, and there had been no reason given for the delay in providing the service. In these circumstances, a health service could be found liable for damages.
This reasoning of Lord Woolf MR is the reason the judgement has been criticised so much. For those who wished to see the emergency services owe members of the public who were relying on them, a duty of care not to perform their services negligently, it was a big disappointment. I have to say I am inclined to agree with this view. The emergency services perform some of the most vital and dangerous services to the public and deserve admiration. Obviously they cannot guarantee to save life and property every time. However, when they are called upon by an individual, and take over responsibility for a task, and are completely relied on by such individuals, I see no reason why they should not owe a duty of care to the individual, in such circumstances, not to act negligently in the performance of their duties. So long as this would apply only in the performance of their statutory duties, where no valid conflicts with other priorities exist, I see no reason on grounds of public policy for denying such a duty of care.
Therefore, my conclusion would be that while I think the decision in Kent v Griffiths is the right decision, and the claimant was entitled to damages, the reasoning used by Lord Woolf MR has closed the possibility of extending the decision to other emergency services.
Markesinis & Deakin, Tort Law, 5th ed., Clarendon Press, Oxford, 2003
Hepple, Howarth & Mathews, Tort, Cases and Materials, 5th ed. Butterworths, 2000
Harpwood, Principles of Tort Law, 4th ed. Cavendish Publishing, London 2000
Jones, Textbook on Torts, 8th ed. Oxford University Press, 2002
Caparo Industrees Plc v Dickman  2AC 605
X (minors) v Bedfordshire County Council  3 All ER 353
Barrett v Enfield London Borough Council  3 All ER 193
Home Office v Dorset Yacht Co Ltd  2 All ER 294
Anns v Merton London Borough Council  AC 728
Osterlind v Hill 160 NE 301 (1928)
Barrett v Ministry of Defence  3 All ER 87
Stovin v Wise  AC 923
Alexandrou v Oxford  4 All ER 328
Capital and Counties plc v Hampshire County Council  QB 104
Costello v Chief Constable of the Northumbria Police  1 All ER 550
OLL Ltd. v Secretary of State for Transport  3 All ER 897
Kent v Griffiths  2 All ER 474
Ancell v McDermott  4 All ER 355
Knightley v Johns  WLR 349
Rigby v Chief Constable of Northamptonshire  1 WLR 1242
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