Wednesbury Corporation

"It is unthinkable that the police should be exposed to potential actions for negligence at the suit of every disappointed or dissatisfied maker of a 999 call. I can see no sufficient grounds for holding that the police owed a duty of care to this plaintiff on or after receipt of the 999 call ... if they would not have owed a duty of care to ordinary members of the public.

So it appears that the emergency service owe no common law duty to help somebody who calls them because their duty is owed to the public at large and furthermore to hold a public service liable in the face of one individual would be "unthinkable" as it was put in the Alexadrou case, meaning the requirement of being fair just and reasonable as required under the Caparo ratio is not met. One could argue that the ambulance service owes a special duty to carry out their roll in society, indeed before 2006 the secretary of state had a power to provide and manage ambulance services under Section 3(1) National Health Service Act 1977 (although this has now been revoked by National Health Service (Consequential Provisions) Act 2006 Sch. 4 para.

1 I still think it is important to mention because the power almost certainly still exists but I cannot find the relevant statute) however In East Suffolk Rivers Catchment Board Appellants v Kent (1940) it was held that "Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise the power. In spite of what the general principals appear to be I believe that the ambulance service did owe Nisha a duty of care and to support this I turn to the case of Kent v Griffiths which has distinguished this type of situation.

Lord Woolf held that "The Capital and 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"

In Nishas case the ambulance service had promised to aid a named individual (the term named individual here appears mean the individual can be identifiable in any way and not just limited to an actual name because ambulance crews don't always know the casualties name but always have some form of identifying information, if only one person needs help) as a result Peter made no further attempts to help her when he could have done so easily therefore the distinction found in this case applies to this situation. Since an individual has become the focus it can no longer be held that liability would not be fair just and reasonable like it was in the Alexanria case.

Furthermore it was also held that although the obligation under statute is only a mere power there was no reasonable ground not to exercise that power, therefore the ratio in Associated Provincial Picture Houses v. Wednesbury Corporation applies meaning they can be held to have had a duty under statute in spite of the East Suffolk Rivers Catchment Board Appellants v Kent ruling because it they are a public body and had no reasonable grounds to act (or more to the point fail to act) in the way they did. The case of Kent v Griffiths was so similar to that of Nishas that it will almost certainly convince a court that it ought to find that the ambulance service held and then breached a duty of care towards her. In Nishas case determining causation is complicated by the fact that there are 2 successive torts and there are conflicting authorities on this issue.

In Harwood v. Wyken Colliery Co a superseding illness which would have caused the same harm did not relieve the defendant of liability after that point because it was held that there were now multiple causes and so the original was still valid (in spite of no longer strictly passing the but for test). In Baker v Willohby it was held that the a tortfesor continues to be liable for all the harm caused by his tort even if a second tort would have caused the same harm, the first tortfessors only escapes liability for harm which is no longer occurring due to the second tort.

However later in Jobling v Associated Dairies the tort would have reduced the plaintiffs working life by 12 years, however 3 years later the plaintiff suffered an incapacitating illness. The court held that the respondent was only liable for the first 3 years since because of the illness it could no longer be said that but for the tort the remaining 9 years of loss would not have been suffered.

These authorities are extremely contradictory but the baker case can be distinguished by the fact that the second cause was a tort where as in the other two cases it was an illness (described as a "vicissitude of life" in jobling) due to this distinction jobling has not overruled baker on this point. So because both events in Nishas case were torts any liability Peter has will not be void by the ambulance services tort and the ambulance service can only be held liable for additional harm that only they caused. It is difficult to say if Peter will be held liable or not.

Although his acts clearly satisfy the but for test in relation to all of Nishas injuries and the fact that the means by which the harm occurred was unusual is irrelevant under the Huges v Lord advocate doctrine suffering a form of paralyses as a result of an accident at 40mph may be held to be too remote an outcome, this is very much a borderline issue one judge may think it's a foreseeable outcome another would disagree. If causation is to be established against the ambulance service by the traditional but for test Nishas claim will fail because on the balance of probabilities she only had a 40% chance of avoiding the harm.

Some judges have shown support of awarding damages for a loss of the chance to ovoid harm. For example In Greeg v Scott Lord Nicholls stated that "The way ahead must surely be to recognise that where a patient is suffering from illness or injury and his prospects of recovery are attended with a significant degree of medical uncertainty, and he suffers a significant diminution of his prospects of recovery by reason of medical negligence whether of diagnosis or treatment, that diminution constitutes actionable damage This is so whether the patient's prospects immediately before the negligence exceeded or fell short of 50%"

Lord Hope in the same case, Lord Donaldson in Hotson v E Berkshire AHA and Simon Brown J in Bagley v. North Herts Health Authority among other judges have all made similar comments, however such support has always come from dissenting judges or been disapplied by later cases, therefore loss of a chance to recover is not yet definitely part of English law.

It is not necessary to consider why other judges have not favoured this approach or to find argument in favour of applying the loss of chance approach to this case because the ratio in coote held that a loss of chance of less than 50% could never succeed because the claim will not have been proved on the balance of probabilities and this is legally binding, Nishas chance of avoiding the stroke was only 40%.

In conclusion the ambulance service will not be held liable, Peter may or may not be held fully liable, and if he is not them Nisha will have no remedy in tort. Norman was safely inside a building and not on the road at the time so Langly v Drey cannot be used to show that the general principals of duty are satisfied because at the time not only was he not on the road he was safe inside a building, furthermore in Bourhill v Young a motorcyclist was not held liable because the plaintiff was so far away from the accident that harm was not foreseeable, this shows us that the need for sufficient proximity can mean physical proximity and Norman was clearly too far away to be sufficiently proximate or in reasonable contemplation, how can someone who is in a building be held to be owed a duty of care when someone who is some distance away but still on the road is not?

However Norman came to the scene to rescue Peter because he predicted a reasonable danger of fire and if a reasonable person contemplates that there is a reasonably foreseeable chance of further danger he will come to aid. To support this view I turn to the case of Haynes v Harwood where a duty of care was held to be owed to a person who was in a similar situation in that he saw danger on the road outside a building but he himself was safely in the building.

The plaintiff in this case was a policeman but I don't think this is a relevant distinction because although a policeman has a strong moral duty to help the citizens are in danger a private citizen in Normans situation also does as I have explained above. As with Caroline's case the cause the breach (which caused the situation Norman wanted to help in) was Peters use of the mobile phone, so this needs no further discussion. I believe that Normans claim will fail on the grounds of causation because the type of harm he received was not foreseeable as I have already discussed using the wagon mound case.

Norman was rescuing Peter from the possibility of the petrol igniting; this would cause burns but not a broken bone. Although some judges may feel that someone tripping and breaking a bone while running to help on the scene is foreseeable, it was certainly foreseeable that a rescuer would move with haste but would most people really contemplate that he might trip up? Possibly but think of it this way would a school teacher refuse to let children run and play on a similar grass surface to that which Norman tripped up on because they might fall over and get badly hurt?

No a school teacher would not! If Normans claim is awarded the only defence that could apply to Norman is consent, the case of Haynes V Harwood shows that the courts do not accept that rescuers in emergencies have voluntarily accepted a risk just by helping because they are under a moral obligation to help meaning it is not entirely free willed. In conclusion Normans injury may or may not be held to be sufficiently foreseeable and so his case could go ether way.