On 1st April 2000, Drake a yachtsman was sailing off the coast of Devon, when he got into severe difficulties due to severe weather. Drake sent a radio message to the Devon Coastguard service. The Secretary of State for Transport bears legal responsibility for this service. The coastguard service mounted a search and rescue operation. The coastguard acted negligently in their handling of this operation in that they: i) Failed to respond promptly to Drake's call for help; ii) Misdirected a lifeboat to search inshore rather than offshore; iii) Misdirected a Royal Navy helicopter and failed to mobilise another until four hours later.
Drake was eventually rescued but his rescue was delayed for so long that he had to abandon his boat when it sank as it had taken in a large quantity of water. As a result of the time he spent in very cold water he suffered severe hypothermia, frostbite and shock. He later had to have his right leg amputated due to the effects of the frostbite. High Court HELD: i) Applying precedents relating to other emergency services, in particular the fire service, the coastguard services were under no enforceable private law duty of care to respond to an emergency call. If they did respond to an emergency call, they were not under any duty of care if their response was negligent, save where their negligence consisted of a positive act, which directly caused injury, greater than that which would have occurred had they not intervened at all.
On grounds of public policy, it would not be in the public interest to impose a duty of care on the coastguard in the circumstances of this case. My Lords, the most commonly adopted starting point, when the Court embarks upon the enquiry into whether a duty of care should be imposed, is the three stage Caparo test, derived from this House's decision in Caparo Industries Plc v Dickman, comprising of a) the damage must be foreseeable, b) there must be a sufficiently proximate relationship between the parties, and c) it must be "fair, just and reasonable" for the court to impose a duty of care in the light of policy considerations with which the court is concerned.
Brett M.R. in Heaven v Pender explains the criterion of foreseeability which is further judicially held in Bolton v Stone, that 'to say that something is foreseeable, is to say that people may conceive it as a risk', even if it is unlikely. In this case there has been no contest to satisfy that the consequences of the Coastguard's negligence were unforeseeable. The more complex issues to satisfy are the latter two. With regard to the proximity issue, Lord Oliver in Caparo described proximity as 'an expression used not necessarily as indicating literally "closeness" in a physical or metaphorical sense', but merely…a 'convenient label to describe circumstances from which the law will attribute a duty of care'. So was there in fact proximity between Drake and the Coastguard?
I would suggest not. The case of Alexandrou v Oxford and Skinner v Secretary of State for Transport found in favour of the defendants; their decisions were based on public policy. I propose that in both instances the decision should have been based on the lack of proximity, with regard to the ratio of Hill v Chief Constable of West Yorkshire, whereby it was held that 'no duty of care is owed to a member of the public whilst making a 999 call'. Alexandrou could not satisfy proximity through the mere sounding of an alarm, nor Skinner with a distress signal.
The decision in Capital and Counties Plc v Hampshire CC, applying the decision of Stovin v Wise and Norfolk CC, held that the Fire Brigade's statutory powers to act, could not be converted into a common law duty and a brigade was not under a duty to answer a call for assistance nor to take care to do so. However, the Court found in favour of the claimant due to the fact that it was the Fire Brigade that caused the danger i.e. a 'positive act'. As too was found to be the case in Daly v Surrey CC. May J. held in OLL Ltd v Secretary of State, that there was no real distinction between a Fire Brigade responding to a fire and a Coastguard responding to an emergency at sea, the Coastguard owed no Common Law duty of care to respond to the emergency call and that the two services were indistinguishable, therefore, May J. struck-out the appeal.
The decision in Osman v United Kingdom by the ECHR, has now eliminated the use of the 'striking-out' procedure in claims where it is thought that there is no chance of succeeding (e.g. where there is a blanket immunity), due to Article 6 of the Human Rights Act ("right to a fair trial"). The most notable consequence of Osman however, is likely to be the recognition of a positive duty on public authorities to safeguard rights to life, physical integrity, and personal property. Thus an omission to do something, could culminate in a breach of duty, as is evident from Osman v Ferguson, which seemed to impose a duty to do 'all that could possibly be done'. In light of the Osman decision, the court was reluctant to strikeout the claim in Barrett v Enfield LBC, however, in Barrett there still remained an actionable issue, that of proximity. Similarly, Osman v UK satisfied the proximity test.