By Andrew Steel, National Head of Public Sector Services.
Civil claims for damages are often made by members of the public against the emergency services. The content of each claim will differ greatly, dependent upon which service is named as the Defendant.
We often defend claims made against the police where the Claimant contends that they should never have been arrested and seeks damages for the period of time they spent in a police cell. We defend claims made against the Ambulance Service for incorrect treatment being administered at the scene, or where someone has been injured whilst being transported to hospital. We act for the Fire Service where a fire appliance is involved in a road traffic collision on route to a call and proceeding through a red light.
When these claims are made, is the duty of care the police have towards the public the same as fire and ambulance services? Does it differ? If so, how and why? Would a one size fits all approach be appropriate?
BACKGROUND CASE LAW
Historically, the courts have been slow to impose a duty of care on emergency services. Much of the case law involves civil actions made against the Police, but the views of the court in relation to public policy points can be read to apply to all emergency services.
CASES AGAINST THE POLICE
In Hill vs The Chief Constable of West Yorkshire  2 WLR 1049, the court found there to be no liability where the police failed to arrest Peter Sutcliffe, the Yorkshire Ripper. The rationale of the court decision was that while there was a fundamental duty to catch criminals that existed towards the general public, it was impossible to define a class of people specifically to whom a duty existed by the failure to arrest. Therefore the duty was not established for proximity reasons. Given this decision, one can see how difficult it was for individuals to bring successful claims given the Hill decision.
The Hill case was largely regarded as the status quo until relatively recently, when the position began to change.
In Robinson vs The Chief Constable of West Yorkshire  EWCA Civ 15 the Claimant was walking along a main street in Huddersfield town centre. Officers attempted to arrest a suspected drug dealer. While doing so a struggle ensued, leading to both the officers and the suspect falling to the ground and colliding with the Claimant, who suffered personal injury. The Claimant alleged that a duty of care between her and the police existed and the actions of the officers in deciding to arrest at the time they did was negligent, leading directly to her injuries.
The Chief Constable was successful at first instance, and in the Court of Appeal. However, the Supreme Court reached a different conclusion. They found that if a third party was injured because of a negligent act by a police officer (which was a foreseeable consequence of the officer’s actions), a breach of the duty of care was established.
A distinction was made between whether there was a positive act undertaken by the police, as compared to an omission. Hill was a case that involved an omission (the police failed to do something), whereas in Robinson there was a positive act (the decision to arrest). In positive act cases, where there was an injury to athird party that was a reasonably foreseeable consequence of the positive act, the police were liable.
Contrast this duty with the decision in Sherratt vs The Chief Constable of Greater Manchester Police  EWHC 1746. Here, a call was made to GMP from the deceased’s mother, concerned about her daughter’s welfare. The call handler advised they would send officers to check on her and if needed, would arrange for other emergency services to attend. The officers first attended on the same evening and failed to gain entry. They attended again the next morning, accessed the address and found the deceased, who had died from an overdose.
The Court of Appeal found that a duty of care existed.
The key question was that of an ‘assumption of responsibility’. The GMP, through the actions of the call handler, had assumed responsibility for the care of the deceased. There was sufficient proximity of relationship between the deceased and the GMP to give rise to a duty of care (contrast Hill and the fact that the call had been made by someone other than the deceased).
GMP argued that despite what was said by the control room, the primary function of the police was the investigation and suppression of crime, not to care for the welfare of a person who may be injured. The Court of Appeal disagreed. Based on what the operative said, the GMP had agreed to perform the same function as the ambulance service in coming to the aid of an injured person, then arranging to take that person to hospital if required. The mother was entitled to rely on what was said to her, and view of that conversation, did not take further action herself.
Does the decision in Sherratt move the law forward in finding that a duty existed for the police where the primary function was not healthcare? Can this be said to be fair to police forces? An ambulance service would never be asked to investigate and suppress crime, but police forces are called on to care for peoples’ welfare.
CASES AGAINST THE AMBULANCE SERVICE
In Kent vs Griffiths  EWHC Civ 3017 a doctor called 999 and asked for an ambulance to assist with a patient suffering from a severe asthma attack. Before the ambulance arrived, the Claimant suffered from a respiratory arrest and was left with permanent brain damage.
The Court found that the ambulance had not arrived in a reasonable time and there was no explanation for the delay. If they had arrived on time, it was likely the respiratory arrest would not have occurred. It was further held that the ambulance service should be regarded as part of the health service: where a duty of care towards patients exists. The Court could not find any circumstances in situations like this where it would be unjust to impose a duty of care, therefore liability was established.
This decision can be contrasted with Sherratt. In the police case, there needed to be an assumption of responsibility by the call handler specifically, to create the duty of care. In Kent this already existed as the ambulance service is an extension of the NHS.
CASES AGAINST THE FIRE SERVE
In AJ Allan vs Strathclyde Fire Board  CSIH 3 the fire service was called to attend a fire at a farmhouse. They extinguished the fire, however it later reignited and burnt down the building. The Claimant alleged the fire service was negligent as they failed to use thermal imaging to ensure the fire had been fully extinguished prior to leaving.
The Court found that the general duty of care the fire service had towards members of the public was not to negligently add to the damage the owners of the farmhouse would have suffered had the fire service not been called. As there was no evidence of anything being done (a positive act) to make things worse, there was no liability. Is this case similar to the Robinson decision for police forces?
Where do these cases leave us?
- No general duty of care.
- No assumption of responsibility.
- Only establish a duty of care where there has been a positive act (as opposed to a failure to do something) which has resulted in causing additional damage to that which would have been caused should there have been no attendance.
- Seen as an extension of the NHS.
- A duty of care to patients exists.
- No circumstances where it would be unjust to impose a duty of care if the ambulance arrives late leading to injury.
- No specific assumption of responsibility given by call handler for a duty to arise.
- Can be liable to third party if damage is caused by a positive act where the damage is a reasonably foreseeable consequence.
- A duty of care will not exist where there has been an omission.
- A duty of care can be established if the police have assumed responsibility for someone’s welfare, even if that relates to doing something outside of the core functions of a police force.
A review of the way the courts have developed the law in this area reveals, clearly, that civil actions against the emergency services are now far more likely to succeed now as compared to 30 years ago. These sit alongside decisions made in cases where breaches of the European Convention on Human Rights are alleged which have also opened up potential avenues for Claimants seeking damages.
Whilst it is clear from these cases that the law currently imposes different duties on different emergency services, this is all likelihood reflects the different tasks that are carried out by each. In the writers view however, the current duties imposed upon police forces by the civil courts appear overly stringent. Not only do forces faces claims made by people injured by a positive act carried out by officers in the course of their normal duties, they also face claims made by people who say that the police assumed responsibility for them by way of a conversation with a call handler – which may have involved something completely outside of the core functions of the police. This simply cannot be right and should be challenged.
About the Author
Andrew Steel (Andrew.Steel@plexuslaw.co.uk) is National Head of Public Sector Services and a Partner in the Manchester office of Plexus Law. He has acted for public authorities and corporate clients and has a particular interest in defending civil actions against the police, with significant experience of false imprisonment, assault, malicious prosecution, and the Human Rights Act.
Plexus Law is a modern and flexible law firm with a national network of offices and a highly motivated team of litigators delivering effective solutions and outcomes for our clients. Plexus offers litigation and related services to the public sector.
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