Kent v Griffiths (No.2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE ALDOUS,LORD JUSTICE LAWS
Judgment Date03 February 2000
Judgment citation (vLex)[2000] EWCA Civ J0203-5
Date03 February 2000
Docket NumberCase No: 1999/0926

[2000] EWCA Civ J0203-5

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

MR JUSTICE TURNER

ON APPEAL FROM QUEEN'S BENCH DIVISION

Before:

Master of the Rolls

Lord Justice Aldous and

Lord Justice Laws

Case No: 1999/0926

Kent
Appellant
and
GRIFFITHS & ORS
Respondent

MR JAMES MUNBY QC and MISS MARY O'ROURKE (instructed by Messrs Capsticks, London SW15 2TT) appeared for the appellant

MISS ELIZABETH-ANNE GUMBEL QC (instructed by Messrs T G Baynes & Sons, Kent, DA15 7ER) appeared for the respondent

LORD WOOLF MR :

1

The issue on this appeal is whether an ambulance service can owe any duty of care to a member of the public on whose behalf a '999' call is made if, due to carelessness, it fails to arrive within a reasonable time.

The Background

2

The appeal is against a judgment of Mr Justice Turner given on 16 July 1999 by the third defendant, the London Ambulance Service ("LAS"). The judge awarded the claimant damages amounting to £362,377. He dismissed the claims against the first and second defendants who were the claimant's doctors. The LAS was ordered to pay the claimant's costs of the action, including the costs incurred by the claimant in respect of the claim against the first and second defendants, and to indemnify the claimant in respect of her liability in costs to the first and second defendants. The judge gave the LAS permission to appeal as the case raised a novel point of law. There is no appeal in relation to the decision as to the dismissal of the claim against the first and second defendants. There is a cross-appeal by the claimant as to damages. That cross-claim is to be heard on a later date.

3

The facts relevant to the issue on this appeal can be stated shortly. They are not in dispute. They are set out clearly in the judgment.

4

The claimant is an asthmatic. On 16 February 1991 she suffered an asthma attack. The first defendant attended at her home. At 16.25 the first defendant telephoned the LAS, gave the claimant's name, address and age and indicated that she was suffering from bronchial asthma and asked for an ambulance to take her "immediately please" to casualty where she was expected. The control replied "okay doctor". By 16.38 the ambulance had not arrived so the claimant's husband made a second call. The LAS's response was "Yes. They are well on their way to you … give them another 7 or 8 minutes". At 16.54 the first defendant made a second call as the ambulance had still not arrived. The response was "Well it should be a couple of minutes". The ambulance did not arrive, as the judge found, until 17.05. The claimant arrived at the hospital at 17.17.

5

The record prepared by a member of the ambulance crew indicated that the time of arrival at the claimant's home was not 17.05 but 16.47. The judge found that there had been contemporary falsification of the records by the member of the ambulance crew. He considered that he had not been given any satisfactory explanation for the ambulance taking 34 minutes to travel 6.5 miles from its base to the claimant's home. The judge was satisfied that the crew member had "withheld the true reason, whatever it might have been, why it took so long for the ambulance to reach the claimant's house". The crew member "knew full well just how critical was going to be the record which he made" of the time of arrival. In the absence of any reasonable excuse for the delay, the judge was "driven to conclude that the delay was culpable". The ambulance did not reach the claimant's home within a reasonable time. It could and should have arrived at the claimant's home at least 14 minutes sooner than it did. If it had arrived in a reasonable time, as it should have done, there was a high probability that the respiratory arrest, from which the claimant suffered, would have been averted. The judge also made criticisms as to the information communicated by the LAS to the ambulance crew, which would also amount to carelessness, but he did not base his decision on this additional finding.

6

The doctor gave evidence that if she had been told, when she had first telephoned for the ambulance, that it would be 40 minutes before it arrived she would have probably asked the claimant's husband to drive his wife to the hospital. She would have accompanied them.

7

I should set out the views of this very experienced judge as to the general merits of the claimant's case. He said:

"I should have found it offensive to, and inconsistent with, concepts of common humanity if in circumstances such as the present where there had been an unreasonable and unexplained delay in providing the services which LAS were in a position to meet, and had accepted that it would supply an ambulance, the law could not in its turn provide a remedy to the person whose condition was significantly exacerbated in consequence."

8

I have already indicated that the issue on this appeal is whether the claimant was owed a duty of care. Originally in its defence the LAS admitted that it was under a duty to respond. However, after the decision of this Court in the case of Capital & Counties Plc v Hampshire County Council [1997] QB 1004.(Stuart-Smith, Potter and Judge LJJ) that a fire brigade was not under a common law duty to answer calls to fires or to take reasonable care to do so, an application was made to withdraw that admission by way of amendment. An application was also made to strike out the allegations against the LAS. This was based on an allegation that the statement of claim disclosed no cause of action in so far as it relied upon the delay in responding to the ambulance call.

9

The application to strike out was dismissed by this Court (Kennedy and Schiemann LJJ and Sir Patrick Russell) [1999] PIQR P192. The Court considered that the Capital & Counties case was arguably distinguishable upon the grounds that the duty to fight fires remains throughout a duty owed to the public at large. By contrast once a call to an ambulance service has been accepted, the service is dealing with a named individual upon whom the duty becomes focused. Furthermore, if an ambulance service is called and agrees to attend the patient, those caring for the patient normally abandon any attempt to find an alternative means of transport to the hospital.

The Appellant's Case

10

Mr Munby QC advanced a powerful argument on the part of the LAS. He relies on two primary submissions. The first is that the only duty which in private law the emergency services (including the ambulance services) owe to an individual member of the public is not, by their own acts, negligently to create an additional danger which causes injury to the individual to whose assistance they have been called. In this respect the position of the LAS in private law is no different from that of a volunteer who goes to the rescue of a person in difficulties. In particular the LAS is under no liability to a member of the public if it refuses to respond to a 999 call or does so but does not arrive within a reasonable time. The position is indistinguishable from the Capital & Counties case, to which I have already referred, in relation to fire brigades, the decision of this court in Alexandrou v Oxford [1993] 4 All ER 328 as to the police when responding to a '999' call and OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 in relation to the coast-guards when making a rescue at sea.

11

The second primary submission is that negligence in the performance of a statutory duty or in the exercise of a power could only in the circumstances of this case give rise to liability if the three requirements laid down in Caparo Industries Plc v Dickman [1990] 2 AC 605 for establishing a free standing common law duty are met. It is accepted that two of the requirements, namely that of foreseeability and of it being just, fair and reasonable for there to be a duty of care, are met. What is contended is that the additional requirement, that there should be a relationship of sufficient proximity between the claimant and the LAS, does not exist. Mr Munby relies in particular on X v Bedfordshire County Council [1995] 2 AC 633.

12

Although Mr Munby advances separate submissions, both submissions require an understanding of the reasons given for the decisions in the Alexandrou and Capital & Counties cases. Both cases are binding on this Court and unless they can be distinguished this appeal has to be allowed.

The Claimant's Case

13

Miss Gumbel QC, in her helpful argument, relies on three unchallenged findings of the judge:

1. The requisite degree of urgency was communicated to the central ambulance control.

2. The LAS was in a position to accept the request and accepted that it would supply the ambulance in accordance with the request.

3. The provision of the ambulance was unduly delayed.

14

These facts, she submits, were sufficient to establish proximity. She contends that, this being the case, Turner J's decision was in accordance with previous authority. She submits that there are distinctions between this case and Capital & Counties. First of all, she relies on the difference, apart from the nature of the service that the LAS provides, between the facts of this case and the cases relied on by Mr Munby. Here, only a single individual was involved who made a specific request that was accepted and therefore relied on. This was not a case of general reliance, but specific reliance. It was foreseeable that the claimant could suffer personal injuries if there was delay. The nature of the damage was important. There was a contrast with a fire or a crime, where an unlimited number of members of the public could be affected and the damage...

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