Margaret Aitken v Scottish Ambulance Service and Greater Glasgow Health Board  CSOH 49
Margaret Aitken, a mother whose teenage daughter died through an epileptic seizure, has succeeded in her first legal hurdle to suing the Scottish Ambulance Service and Greater Glasgow Health Board for damages following their alleged negligence.
The daughter of Ms Aitken, Nikki Williamson, died in November 2003 following an epileptic seizure. Before the death, Ms Aitken’s son had telephoned 999, which was answered by the Emergency Medical Dispatch Centre (the “EMDC”). An ambulance arrived at the family home 33 minutes later following the instruction of a doctor who attended the family home 10 minutes after the emergency phone call. Ms Aitken sued for damages on the basis that the Scottish Ambulance Service and the Health Board were vicariously liable for the fault and negligence of others for whose acts and omissions they are responsible, primarily in respect of an ambulance having not been sent immediately to the family home.
The case came before Lord MacKay in the Outer House of the Court of Session through a procedure roll hearing, where the first defenders sought to have excluded from probation certain of the averments of fault of the defenders. The principal question raised was essentially whether the member of staff of the EDMC who answered the 999 call owed any duty of care to the deceased when the 999 call was made.
Refusing the ambulance service’s motion and allowing a proof before answer, Lord MacKay noted that
“it cannot be said that the pursuer had no prospects of addressing fairness and public policy, the issues involved in the third element of the Caparo test, in a manner that results in the test being satisfied in its entirety. That is because the pursuer may, if she manages to prove her averments about the events of 1 November 2003, be able to prove that the defender’s employee, by her words and actions, assumed a responsibility for getting Nikki to hospital as an emergency. In my opinion, it may also be possible for her to establish that she and her son relied on what the employee did and said, as they cared for Nikki. In my opinion, the facts the pursuer offers to prove as to the events of 1 November 2003 are capable of constituting a situation of an exceptional nature such as was postulated in Mitchell v Glasgow City Council… and capable of establishing that the first defenders’ employee had by what he had said and done come under a duty to exercise reasonable care towards Nikki by arranging for her to be transported to hospital as an emergency.”
While there still has been no definitive judgment on the case in its entirety, the Opinion of Lord MacKay illustrates the maintained flexibility of the Scots law of delict, through which each case should still be considered on its merits. Any blanket immunity in favour of the emergency services may indeed even lead to a breach of Article 6 of the ECHR, as was established, for instance, in Osman v United Kingdom  EHRR 101.
Through the law of negligence, the duty of care tripartite test was established by Lord Bridge in Caparo Industries plc v Dickman  2AC 605 at pages 617 – 618:
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ of ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of the other.”
This test is now firmly regarded as being part of Scots Law e.g. via Gibson v Orr 1999 SC 420, 431, per Lord Hamilton and Mitchell v Glasgow City Council,  1AC 874, para 25, per Lord Hope of Craighead.
Counsel for the Defenders argued that the ambulance service was not subject to any such common law duty of care, as set out in Caparo, to rescue members of the public. However, every case turns on its own facts. Here, the proximity and the fair, just and reasonable tests, which are the second and third legs of Caparo respectively, may indeed be subject to further consideration and cannot be blankly dismissed.
As regards proximity, Lord MacKay said that “In my opinion, were this action to go to proof, it would be open to the Lord Ordinary to hold that a relationship of some proximity came into existence involving Nikki and the member of staff in the EMDC unit, arose whilst that member of staff was dealing with the first 999 call.” Thus, the relevant relationship of proximity may be greater than that of the member of staff to all members of the public.
Turning to the fair, just and reasonable test, Lord MacKay took into account many relevant similar cases involving responses by emergency services to alarms or 999 calls. These were summarised as follows:-
– In Kent v Griffiths  Q B 36, it had been held that an ambulance service had been under a duty to respond to a 999 call;
– In Hill v Chief Constable of West Yorkshire  AC 53, it was affirmed by the House of Lords that there was no general duty of care owed by police officers to identify and apprehend an unknown criminal and that police officers did not owe any duty of care to individual members of the public who might suffer injury through such a criminal’s activities (also applied by Brooks v Commissioner of Police of the Metropolis  1 WLR 1495 and Van Colle v Chief Constable of the Hertfordshire Police  1 AC 853);
– In Alexandrou v Oxford  4 All ER 328, the Court considered the question of whether the making of a 999 call, activated by an alarm bell, which had caused police to attend at the plaintiff’s premises, had created a special relationship between the plaintiff and the police and given rise to a duty of care owed to the plaintiff. The Court of Appeal held it had not;
– In Capital & Counties plc v Hampshire County Council  QB 1004, it had been held by the Court of Appeal that a fire brigade had not been under a common law duty to answer a call for help or to take care to do so.
– In OLL Limited v Secretary of State for Transport  3 All ER 897, May J had held that there was no obvious distinction between the fire brigade responding to a fire where lives were at risk and the coastguard responding to an emergency at sea. On that basis, the coastguard had not been under any enforceable private law duty to respond to an emergency call.
Nevertheless, although these cases may show pockets of liability, or indeed lack thereof as the case may be, Lord MacKay noted that “there are cases in which the facts may have to be established before such a question [of whether a duty of care was owed] can be determined. Having considered the extensive submissions I received, I have reached the firm opinion this is such a case. In particular, without a full examination of the facts, it is not possible to reach a conclusion whether the pursuer will be able to satisfy the third element of the Caparo test. Before doing so, she would require to demonstrate that when regard is had to all the relevant circumstances, including the statutory framework within which the first defenders operate, the nature of the services they provide as a Special Health Board, the policy and other factors involved in the delivery of those services to individual members of the public by their employees, and also, of course, to the events of 1 November 2003, it would be fair, just and reasonable for there to have been a duty of care of the nature upon which she seeks to found. In that exercise, she will not have any assistance from the decision of the Court of Appeal in Kent v Griffiths, for the reason that, as is clear from the report at para.48, the defendants in that case did not seek to found on policy considerations as providing a basis for challenging the decision of Turner J that they had owed a duty of care to the plaintiff.”
As noted above, the Opinion of Lord MacKay leads Ms Aitken one step further to securing damages for the alleged negligence of the Defenders. Nevertheless, Ms Aitken must still establish, through the forthcoming proof before answer, that a proximate relationship existed between the Defenders and the deceased, that it was fair, just and reasonable in the circumstances that a duty of care be imposed and, if a duty of care is deemed to have existed, also that the Defenders breached that duty of care and that the Defender’s breach caused the harm suffered by the deceased. A long road remains to be travelled for Ms Aitken and, equally, for the Defence.
The case is reported here http://www.scotcourts.gov.uk/opinions/2011CSOH49.html
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