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Claim in negligence: Police and ambulance services

Brief 211546

My Lords, I have had the benefit of reading the judgment from both the High Court of Justice and the Civil Division of the Court of Appeal. The claim that is before us today involves an action against the police for failing to answer an emergency call with sufficient competence. The appellant, Fiona, claims that she has suffered injuries resulting from the inability of the police to inspect the area where a suspicious looking person was reported as being. These judgments from the High Court of Justice and the Civil Division of the Court of Appeal found in the favour of the respondent, Frost. These judgments where based upon the legal arguments of the notion of where and when a duty of care is required. It is my contention to deal with this notion alone, although consideration must be given to the other two fundamental elements of negligence. These, as your Lordships are fully aware, are the subsequent breach of the duty, and the establishment of the damage and quantum that results as a reasonably foreseeable consequence.

It is a principal that an individual is under an obligation not to do things that are likely to harm others who are considered to be directly affected by their actions. The duty of care is well established doctrine of law. The duty of care is established by two leading authorities. As your Lordships are aware these authorities are Donoghue v Stevenson[1] and Caparo Industries plc v Dickman[2]. The sine quo non of these authorities is that of Donoghue v Stevenson. According to his Lordship Lord Atkin, a duty of care exists in law from one person to his neighbour. His Lordship, in introducing this concept answered his own question as to who your neighbour in law is. His Lordship provides, that your neighbour in law is ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question[3]’. Thus, his Lordship established that a duty of care is owed when there is no reasonable likelihood of an intervening act, making both a defendant and claimant proximate. The ‘Neighbour principal’ has been furthered extended by the case of Caparo Industries plc v Dickman. According to the ratio of this authority, a duty of care is to exist when there is proximity between the parties, foreseeability of damage, and that it is fair, just and reasonable to impose such a duty. It is clear and was accepted by the High Court and Court of Appeal that although it was foreseeable that loss and injury would result if sufficient care was not taken, there was a lack of proximity between the claimant and the defendant. It was equally accepted that it would be unfair, unjust and unreasonable to impose a duty of care on the police in these circumstances. These arguments require further examination.

The issue of proximity is a crucial element in substantiating a claim in negligence. This, by its definition, varies from case to case. As your Lordship’s are aware this concept encapsulates the notion of foreseeability. This is a complex notion, as the law demands differing approaches. It is clearly important in this case to ascertain if the police could have been sufficiently proximate to the appellant to owe her a duty of care. According, to the case of Capital & Counties plc v Hampshire County Council[4], and including the cases of John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority[5] and Church of Jesus Christ of Latter Day Saints (Great Britain) v West Yorkshire Fire and Civil Defence Authority[6], the emergency service, in these cases the fire brigade, were held not to be under a common law duty to answer an emergence call or to exercise care in doing so. It was held and admitted by the earlier case of Alexandrou v Oxford[7], that this was due to the lack of proximity between the claimant and defendant. Clearly, in these authorities the fire brigade was deemed to be insufficiently proximate due to the remoteness of the relationship between a telephone call and an emergency. How, therefore, can a Chief Constable be deemed to have acted negligently in not assisting the claimant when he is lacking a fundamental prerequisite of control through proximity? It is interesting though that the High Court and Court of Appeal admitted facts that showed that the police officers had not left their car and had merely done a perusal of the area. According to the case of Home Office v Dorset Yacht Co Ltd[8], there Lordship’s held that if an individual has sufficient control over another than this control imports responsibility. Clearly Frost, the Chief Constable, has sufficient control over the officers in the squad car. However, this authority can be distinguished from the current facts as the respondent in this matter had no control over the perpetrator of the assault, just over the police officers. In the above authority, the Home Office employees had sufficient control over the borstal inmates to justify the imposition of proximity. Further the case of Hill v Chief Constable of West Yorkshire Police[9] held that the police could not be held liable for the failure to arrest the Yorkshire Ripper, Peter Sutcliffe. It was held that as the police did not have the suspect in custody, nor did they have any true identification of the assailant, there was a lack of proximity as the area of those believed to be at risk was to large to engender a duty of care. My Lords, in this particular case I would submit the same applies. The relationship between the applicant and the respondent contents a large gulf between control and responsibility.

It is worth noting, however, that according to the case of Kent v Griffiths[10], an ambulance that took twice as long to reach the claimant was held to have breached the duty of care owed, and as a consequence the claimant suffered permanent brain damage. This was due to the defendant ambulance service being sufficiently proximate to the claimant; therefore a duty of care was owed. It is arguable in this case that the respondent was under a similar obligation as that shown in the case of Kent v Griffiths, as the respondent’s were called to assist with a particular individual, namely the appellant’s neighbour Rod, and anyone else deemed to be at risk by the surrounding area. However, the Commission held in the case of Osman v United Kingdom[11], that the Court of Appeal were correct to believe that public policy required the police to be immune from actions such as negligence. My Lords, it is due to the lack of a special relationship between the appellant and the respondent that shows that they are not sufficiently proximate to justify the imposition of a duty of care. It is equally clear that public policy dictates that the police should not be curtailed in their activities to prevent crime by such threats of litigation such as negligence.

The final consideration that needs addressing is the idea that it is unfair, unjust and unreasonable to impose a duty of care on the police in these circumstances. According to Lord Oliver in Caparo Industries plc v Dickman, the term proximity, fair, just and reasonableness can be encompassed as one notion, thus it would appear that when one notion is substantiated the others legitimately follow. It is clear that as the appellant and respondent are not sufficiently proximate it would be inappropriate to impose a duty of care on the grounds that it would be fair, just and reasonable.

My Lords, although I believe that the officers in the squad car could have done more to check the surrounding area, I do not believe that the appellant and respondent are sufficiently proximate, nor do I believe that it is fair, just and reasonable to impose a duty of care on the police. Equally, public policy dictates that the police should be immune from such actions. For these reasons I would accordingly dismiss the appeal.


Footnotes

[1] [1932] AC 562.

[2] [1990] 2 AC 605.

[3] At 580.

[4] [1997] QB 1004.

[5] [1996] 4 All ER 318.

[6] [1997] QB 1004.

[7] [1993] 4 All ER 328.

[8] [1970] AC 1004.

[9] [1989] AC 53.

[10] [2001] QB 36.

[11] [1998] 29 EHRR 245.


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