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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.
The Coastguard Act 1925 imposes no statutory duty on the Coastguard, contrary to that imposed by the ECHR, on a public authority, in the Osman decision. Further, I do not think that it is for this House to change the long established common law, until Parliament decides to do so.
In contrast Kent v Griffiths held that an ‘acceptance of a 999 call’ creates a duty, with regard to proximity. Our case however, mentions simply a “radio message” which bares no indication of acceptance. I would further distinguish Kent on the grounds that, the LAS, contrary to the Police Force and Fire Brigade, serve to protect the general public, whereas the service provided by the LAS is more analogous to that which is provided by hospitals to individual patients, merely an extension of the health service, and as we have already admitted, the Coastguard falls into the same category as the Fire Service. Whatever the case may be, that decision would not be binding on this House.
Contemporary law indicates, that proximity will only arise through an omission, where there is an ‘imposition of responsibility’. This imposition may arise where there is an undertaking by the defendants, as in Osman, creating a special relationship between a claimant and defendant. What is more, our case, by analogy to previous attempts against the Coastguard, would suggest insufficient proximity.
Consequently, perhaps it is the latter issue that would decide this case. It allows for the denial that a Duty of Care is owed, based on it being ‘fair, just and reasonable’. Hill coined this notion, with its immunity of suit on the Police, though a second reason for that decision was that there lacked proximity. This immunity of a public body was applied by this house in the case of Osman v Ferguson, and in the same year in Ancell v McDermott.
Judge Gareth Edwards Q.C. in Skinner, also addressed public policy considerations raised in Hill, and decided that those applied even more so to the coastguard. ‘The effects of possible legal action, inter alia, would not lead to more caution, but would lead to defensiveness and with resources taken up, would lead to a diminution in the coastguard service’. That would be contrary to public interest. This too was used for other public bodies, such as Child Protection Agencies – X v Bedfordshire CC.
However Swinney v CCNP, held that there was to be no blanket immunity and countervailing considerations such as to ‘encourage informants to come forward’, could override this immunity. Nevertheless after considering a case one could impose that it would be fair, just and reasonable to dispose of a case.
Similarly, this same conclusion was reached in Phelps v Hillingdon BC though they accepted that at times to impose such liability would interfere with performance, but this would only apply in exceptional circumstances – there was no justification for blanket immunity.
However, I must refer your lordships the judgement of Tucker J. in Kinsella v Chief Constable, where the reasons for not debating the issue in such a case were stated: ‘To allow a case to be debated in court will remove the whole purpose of the immunity’ – i.e. to ensure that public money is not wasted on litigation.
In W v Commissioner of Police, the Court of Appeal seemingly accepted the immunity of the police, though when the case was put before this House in August 2000, the primary decision was reversed and it was held that it should not be struck out. It was further distinguished from other cases such as Hill on the grounds that W was not a member of the public sector but in fact a police officer bringing the claim. Even though the immunity may in the end determine a case, it seems that proximity is the issue that decides a case.
With regard to the Osman judgement, it seems that article 6 is concerned with a procedural right - namely the right to a fair hearing, whereas the duty of care in the tort of negligence is concerned with a substantive right – namely whether the claimant is ever entitled to bring an action for negligence in a given set of circumstances. It is not clear from the Osman judgement how a ruling that there is no substantive right can contravene a claimants’ procedural right to have his case heard fairly, it only seems to concern procedure not to allow recourse to the ‘striking-out’ policy, which is simply not enough to decide a case in light of Caparo. There is nothing that removes the possibility of deciding a case based on proximity, as the ECHR expressly stated in Osman, up-holding the decision in Hill. It is therefore on these grounds that we must now decide a case.
In Osman v UK, judgement was found for the plaintiff in that they had justified the proximity test, the case involved the failure to protect the life of the child; the alleged acts and omissions amounted to grave negligence. More recently in Z v UK, the Human Rights court has reiterated that in some cases the immunity may apply. That the UK courts should have regard to the ‘scope and application’ of the immunity to the particular facts of the case, so as to balance the competing public interest arguments.
Moreover, Osman has not altered the substantive law that a duty of care can only arise if there is proximity. With reference to the decision in Palmer v Tees HA, whereby a case was disposed of due to the lack of proximity before even considering immunities.
In light of the above, I would dismiss this appeal, even though forseeability was admitted, a sufficient proximate relationship has not been established. Furthermore, I believe that it would not be ‘fair, just nor reasonable’, and therefore not in the public interest to impose in this particular case a duty of care on the Coastguard service. I respectfully submit that the ECHR would agree with this decision, the policy reasons for granting immunity in this instance are not outweighed by the factual implications of the case, and further, our duty under the Human Rights Convention of a fair trial has been fulfilled. -- Appeal Dismissed. --
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