England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE TURNER

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday, 3 February 2000

LORD WOOLF MR :

1. The issue on this appeal is whether an ambulance service can owe any duty of care to a member of the public on whose behalf a '999' call is made if, due to carelessness, it fails to arrive within a reasonable time.

The Background

2. The appeal is against a judgment of Mr Justice Turner given on 16 July 1999 by the third defendant, the London Ambulance Service ("LAS"). The judge awarded the claimant damages amounting to £362,377. He dismissed the claims against the first and second defendants who were the claimant's doctors. The LAS was ordered to pay the claimant's costs of the action, including the costs incurred by the claimant in respect of the claim against the first and second defendants, and to indemnify the claimant in respect of her liability in costs to the first and second defendants. The judge gave the LAS permission to appeal as the case raised a novel point of law. There is no appeal in relation to the decision as to the dismissal of the claim against the first and second defendants. There is a cross-appeal by the claimant as to damages. That cross-claim is to be heard on a later date.
3. The facts relevant to the issue on this appeal can be stated shortly. They are not in dispute. They are set out clearly in the judgment.
4. The claimant is an asthmatic. On 16 February 1991 she suffered an asthma attack. The first defendant attended at her home. At 16.25 the first defendant telephoned the LAS, gave the claimant's name, address and age and indicated that she was suffering from bronchial asthma and asked for an ambulance to take her "immediately please" to casualty where she was expected. The control replied "okay doctor". By 16.38 the ambulance had not arrived so the claimant's husband made a second call. The LAS's response was "Yes. They are well on their way to you … give them another 7 or 8 minutes". At 16.54 the first defendant made a second call as the ambulance had still not arrived. The response was "Well it should be a couple of minutes". The ambulance did not arrive, as the judge found, until 17.05. The claimant arrived at the hospital at 17.17.
5. The record prepared by a member of the ambulance crew indicated that the time of arrival at the claimant's home was not 17.05 but 16.47. The judge found that there had been contemporary falsification of the records by the member of the ambulance crew. He considered that he had not been given any satisfactory explanation for the ambulance taking 34 minutes to travel 6.5 miles from its base to the claimant's home. The judge was satisfied that the crew member had "withheld the true reason, whatever it might have been, why it took so long for the ambulance to reach the claimant's house". The crew member "knew full well just how critical was going to be the record which he made" of the time of arrival. In the absence of any reasonable excuse for the delay, the judge was "driven to conclude that the delay was culpable". The ambulance did not reach the claimant's home within a reasonable time. It could and should have arrived at the claimant's home at least 14 minutes sooner than it did. If it had arrived in a reasonable time, as it should have done, there was a high probability that the respiratory arrest, from which the claimant suffered, would have been averted. The judge also made criticisms as to the information communicated by the LAS to the ambulance crew, which would also amount to carelessness, but he did not base his decision on this additional finding.
6. The doctor gave evidence that if she had been told, when she had first telephoned for the ambulance, that it would be 40 minutes before it arrived she would have probably asked the claimant's husband to drive his wife to the hospital. She would have accompanied them.
7. I should set out the views of this very experienced judge as to the general merits of the claimant's case. He said:

"I should have found it offensive to, and inconsistent with, concepts of common humanity if in circumstances such as the present where there had been an unreasonable and unexplained delay in providing the services which LAS were in a position to meet, and had accepted that it would supply an ambulance, the law could not in its turn provide a remedy to the person whose condition was significantly exacerbated in consequence."

8. I have already indicated that the issue on this appeal is whether the claimant was owed a duty of care. Originally in its defence the LAS admitted that it was under a duty to respond. However, after the decision of this Court in the case of Capital & Counties Plc v Hampshire County Council [1997] QB 1004 (Stuart-Smith, Potter and Judge LJJ) that a fire brigade was not under a common law duty to answer calls to fires or to take reasonable care to do so, an application was made to withdraw that admission by way of amendment. An application was also made to strike out the allegations against the LAS. This was based on an allegation that the statement of claim disclosed no cause of action in so far as it relied upon the delay in responding to the ambulance call.
9. The application to strike out was dismissed by this Court (Kennedy and Schiemann LJJ and Sir Patrick Russell) [1999] PIQR P192. The Court considered that the Capital & 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 to the hospital.

The Appellant's Case

10. Mr Munby QC advanced a powerful argument on the part of the LAS. He relies on two primary submissions. The first is that the only duty which in private law the emergency services (including the ambulance services) owe to an individual member of the public is not, by their own acts, negligently to create an additional danger which causes injury to the individual to whose assistance they have been called. In this respect the position of the LAS in private law is no different from that of a volunteer who goes to the rescue of a person in difficulties. In particular the LAS is under no liability to a member of the public if it refuses to respond to a 999 call or does so but does not arrive within a reasonable time. The position is indistinguishable from the Capital & Counties case, to which I have already referred, in relation to fire brigades, the decision of this court in Alexandrou v Oxford [1993] 4 All ER 328 as to the police when responding to a '999' call and OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 in relation to the coast-guards when making a rescue at sea.
11. The second primary submission is that negligence in the performance of a statutory duty or in the exercise of a power could only in the circumstances of this case give rise to liability if the three requirements laid down in Caparo Industries Plc v Dickman [1990] 2 AC 605 for establishing a free standing common law duty are met. It is accepted that two of the requirements, namely that of foreseeability and of it being just, fair and reasonable for there to be a duty of care, are met. What is contended is that the additional requirement, that there should be a relationship of sufficient proximity between the claimant and the LAS, does not exist. Mr Munby relies in particular on X v Bedfordshire County Council [1995] 2 AC 633.
12. Although Mr Munby advances separate submissions, both submissions require an understanding of the reasons given for the decisions in the Alexandrou and Capital & Counties cases. Both cases are binding on this Court and unless they can be distinguished this appeal has to be allowed.

The Claimant's Case

13. Miss Gumbel QC, in her helpful argument, relies on three unchallenged findings of the judge:

1. The requisite degree of urgency was communicated to the central ambulance control.

2. The LAS was in a position to accept the request and accepted that it would supply the ambulance in accordance with the request.

3. The provision of the ambulance was unduly delayed.

14. These facts, she submits, were sufficient to establish proximity. She contends that, this being the case, Turner J's decision was in accordance with previous authority. She submits that there are distinctions between this case and Capital & Counties. First of all, she relies on the difference, apart from the nature of the service that the LAS provides, between the facts of this case and the cases relied on by Mr Munby. Here, only a single individual was involved who made a specific request that was accepted and therefore relied on. This was not a case of general reliance, but specific reliance. It was foreseeable that the claimant could suffer personal injuries if there was delay. The nature of the damage was important. There was a contrast with a fire or a crime, where an unlimited number of members of the public could be affected and the damage could be to property or only economic. In its statutory context the ambulance service is more properly described as part of the National Health Service than as a rescue service. As part of the Health Service it should owe the same duty to members of the public as other parts of the Health Service. The LAS had not been responsible for the claimant's asthma but it had caused the respiratory arrest and to this extent the LAS was the author of additional damage. There was no question of any conflict as to whom the duty of care was owed, if there was a duty.

The Authorities on Volunteer Rescuers

15. Mr Munby drew our attention to two lines of authorities on volunteers. The first starts with the leading case of East Suffolk Rivers Catchment Board v Kent [1941] AC 74 at 84-5, 87,95, 102 and 104. It deals specifically with the situation where a claim is against a statutory body in relation to the performance of its statutory functions where the statute does not create any duty of care on which the claimant is entitled to rely. As to such a situation Lord Romer made a statement with which Lord Porter agreed. He said (at p102) :

"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 that power. If in the exercise of their discretion they embark upon an execution the power, the only duty they owe to a member of the public is not thereby to add to the damages that he would have suffered had they done nothing, So long as they exercise their discretion honestly, it is for them to determine the method by which and the time in which and the time during which the power shall be exercised; and they cannot be made liable, except to the extent that I have just mentioned, for any damage that would have been avoided had they exercised their discretion in a more reasonable way."

16. Mr. Munby also relies on the Dorset Yacht case [1970] AC 1004 and Capital & Counties and the other cases that were cited in that case for the proposition I have quoted. However, while the proposition is acceptable, it only applies to this case if the LAS did not owe the usual form of private duty of care to the claimant. I refer to the usual form of duty because, as the citation makes clear, even when the responsibility is more limited there is still a residual responsibility.
17. In addition, it is argued that in this case the LAS did "add to the damage [that the claimant] would have suffered if they had they done nothing". But for the acceptance of the 999 call the claimant would have been driven to the hospital and would have arrived prior to her "arrest". Furthermore, although I do not regard this as altering the duty that the LAS owed, even if the LAS was not under any private law duty, in this case it would certainly be under a public duty to exercise its discretion to provide an ambulance. This is because on the evidence there was no rational reason which would justify the LAS's discretion being exercised in any other manner.
18. The other line of authorities is adequately reflected in the decision of the Canadian courts culminating in the Supreme Court's decision in "The Ogopogo" [1971] 2 Lloyd's Rep. 410. They establish that the common law does not require a member of the public to act as would the Good Samaritan. If he does so, however, the law does protect him from being liable in damages except to the extent that his own acts cause damage beyond that which the claimant would have suffered if he had not intervened.
19. While I accept unhesitatingly the good sense of this line of authority I have difficulty in applying it to the present situation. The LAS was under at least a public law duty for the reason I have given already. The provision of ambulances is its statutory function. The LAS and its crews are paid out of public monies to provide their services. It is wholly inappropriate to regard the LAS and its employees as volunteers.

Alexandrou v Oxford

20. In Alexandrou v Oxford, the defendant was a Chief Constable who had been sued by Mr Alexandrou after the latter's clothing shop was burgled. The burglar alarm had been activated, but, when the police officers attended, they did not properly inspect the rear of the premises. The judge held that the Chief Constable was liable to Mr Alexandrou because if the inspection had been carried out properly, the theft would have been prevented. The Chief Constable appealed to this Court. This Court allowed the appeal. There were two grounds for the Court doing so. The first ground was that the relationship between Mr Alexandrou and the police was insufficient to create a duty of care. Glidewell LJ stated in the principal judgment of the Court, with which the other members of the Court agreed (at p.334 e-g) :

"It is not sufficient for a plaintiff, who seeks to establish that a defendant owed him a duty to take reasonable care to prevent loss being caused to the plaintiff by the activities of another person, simply to prove that if the defendant did not exercise reasonable care it was foreseeable that the plaintiff would suffer the loss. It is necessary for the plaintiff also to show that in the circumstances of the particular case he stands in a special relationship to the defendant, from which the duty of care arose: see per Lord Wilberforce in McLoughlin v O'Brian [1982] 2 All ER 298 at 303, [1983] 1 AC 410 at 420 : 'That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear.'"

21. Later Glidewell LJ added (at p.338 Gg-j) :

"It is possible to envisage an agreement between an occupier of a property protected by a burglar alarm and the police which would impose a contractual liability on the police. That is not however, the situation in this case. The communication to the police in this case was by a 999 telephone call, followed by a recorded message. If as a result of that communication the police came under a duty of care to the plaintiff, it must follow that they would be under a similar duty to any person who informs them, whether by 999 call or in some other way, that a burglary, or indeed any crime, against himself or his property is being committed or is about to be committed. So in my view if there is a duty of care it is owed to a wider group than those to whom the judge referred. It is owed to all members of the public who give information of a suspected crime against themselves or their property. It follows, therefore, that on the facts of this case it is my opinion there was no such special relationship between the plaintiff and the police as was present in the Dorset Yacht case."(emphasis added)

22. Having come to the conclusion that the relationship was not "special", in case he was wrong, Glidewell LJ went on to consider whether as a matter of general policy the police should be under such a duty. Here he attached importance to the well-known passage from Lord Keith's speech in Hill v Chief Constable of West Yorkshire [1989] AC 53 (at pp.63-64). In that passage of his speech, Lord Keith pointed out that there are some situations where the imposition of a duty of care will result in the exercise of higher standards of care in the carrying out of various activities. However this was not true of police activities. It could result in a "detrimentally defensive frame of mind". In addition Lord Keith considered that police investigations must frequently involve a variety of decisions on matters of policy and discretion as to which particular line of inquiry it was most advantageous to pursue and as to what was the most advantageous way to deploy the available resources. Such decisions were not regarded by the Courts as appropriate to be called into question. Both lines of reasoning of Lord Keith caused Glidewell LJ to express the view that it would not be appropriate for there to be a duty of care.
23. Slade LJ, in giving his additional reasons for allowing the appeal stated (at p.344 c-d):

"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 who made a similar call."

24. It is to be noted that, in relation to 999 calls to the police, the law which is laid down in the Alexandrou case and the Hill case had at least two important strands. The first is that the primary duty which the police are under is to the public at large to prevent crime. The second is that to impose a liability on the police for the benefit of an individual member of the public to prevent a crime could interfere with the performance of that primary duty. Issues will arise when difficult policy decisions have to be made involving conflicts between the interests of different members or sections of the public and those situations should not be made more difficult by possible litigation having to be taken into account.
25. There are however a great variety of situations where the police provide assistance to the public because they decide to do so. In the well known case of Haynes v Harwood [1935] 1 KB 146, involving a policeman going to the rescue by stopping a bolting horse, Maugham LJ said (at p.161-2) :

"In my opinion the police constable was not in any true sense a volunteer. It is true that he was under no positive legal duty to run out into the street and at the risk of his life to stop two galloping horses; and I quite accept that nobody would have thought of reprimanding him if he had done nothing. It is also true that the primary duty of the police is the prevention of crime and the arrest of criminals; but that is only a part of the duties of the police in London. There is a general duty to protect the life and property of the inhabitants; there is a discretionary duty to direct the traffic, to help blind and infirm people to cross the road, and to direct people to cross the road who have lost their way."

26. The obligations of the police are rooted in the common law and not statute: they evolve to meet the current needs of society. I emphasised in my quotation from the judgment of Glidewell LJ that he was careful to refer to the facts of the appeal which the Court was considering. I consider he was right to limit his remarks in this way. The reasoning of the judgments in that case cannot be applied sensibly to the police officer helping pedestrians across the road. If the policeman assumes this task there is no reason of policy or proximity why he should be in any different position from a school teacher who performs this task and, if this is appropriate on the facts, is liable for negligence.
27. Slade LJ used the shorthand of referring to 999 calls. However, it would amount to a misunderstanding of his approach to attach any magic to the fact that the response is to a 999 call. It is the nature of and the circumstances in which the assistance is provided and required which is important. The issue which can be important is whether it is an urgent call made by phone or otherwise for the assistance of the police involving conflicting priorities or difficult decisions as to the best way to protect the public against crime, or whether it is a routine task which involves no policy or resource issues. In the latter situation a duty can readily be inferred. In the former situation it is unlikely it will exist. In between there are a spectrum of different situations which will have to be judged on their facts.

Capital & Counties Plc v Hampshire County Council and Others

28. The decision in the Alexandrou case was applied in the Capital & Counties case. This was after the Court had examined in detail a large number of authorities and in the course of argument had been referred to further authorities. Stuart-Smith LJ gave the judgment of the Court. It dealt with three different sets of proceedings. In each case, there had been attendance at premises as a result of a 999 call because of a fire. The Court held that the relationship between the owner or occupier of the premises and the fire brigade was not sufficiently proximate so as to impose a duty of care on the fire brigade to protect the property, simply based on the fire brigade's attendance at the site of a fire and involvement in fighting the fire. However, if the fire brigade by their own actions increased the risk of danger they would be liable for negligence in respect of the damage which was caused by the increased risk, unless damage would have occurred in any event.
29. In the judgment, Stuart-Smith LJ points out that, although there is not an express duty imposed on the fire services or an express power granted to the fire services to fight fires by the Fire Services Act 1947, there is an implicit power. He then considered "whether, in the absence of a statutory duty, a statutory power to act can be converted into a common law duty to exercise the power". In that connection he referred to the decision of the House of Lords in Stovin v Wise [1996] AC 923 and in particular the speech of Lord Hoffmann in that case. He rejected a suggestion that a claimant in that case was entitled to rely on the doctrine of general reliance as giving rise to a duty to exercise a statutory power. Then, applying Alexandrou, he summarised the Court's conclusion in these words (at p.1030 A) :

"In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable."

30. Stuart-Smith LJ went on to consider what was the situation once the fire brigade had arrived at the fire ground and started to fight the fire. As to the submission that the question of whether there was a private law duty should be approached by applying Lord Bridge's three-fold test in Caparo [1990] 2 AC 605 (at pp.617-8) of (1) foreseeability, (2) proximity and (3) legal policy, he said (at p.1031 C-D) :

"The peculiarity of fire brigades, together with other rescue services, such as ambulance or coastal rescue and protective services such as the police, is that they do not as a rule create the danger which causes injury to the plaintiff or loss to his property. For the most part they act in the context of a danger already created and damage already caused, whether by the forces of nature, or the acts of some third party or even of the plaintiff himself, and whether those acts are criminal, negligent or non-culpable."

31. Stuart-Smith LJ then distinguished the situation where the "rescue/protective service itself by negligence creates the danger" and indicated that the claimant in that situation could recover. He pointed out that in the cases where the claimant had succeeded, with one possible exception, there had always been a new or different danger created. To establish liability in such a situation, it was possible to rely upon the decision of the House of Lords in East Suffolk Rivers Catchment Board v Kent [1941] AC 74.
32. Stuart-Smith LJ then considered the alternative ground relied upon, based on a contention that proximity will exist where some person possessing "special skill undertakes, quite irrespective of contract, to apply that skill for another person who relies on such skill, and there is direct and substantial reliance by the plaintiff on the defendant's skill". As to this submission Stuart-Smith LJ acknowledged that (at p.1034 G) :

"As a general rule a sufficient relationship of proximity will exist when someone possessed of special skill undertakes to apply that skill for the assistance of another person who relies on such skill and there is direct and substantial reliance by the plaintiff on the defendant's skill."

33. If a doctor volunteers his assistance, "his only duty as a matter of law is not to make the victim's condition worse." He added that "the fire brigade's duty is owed to the public at large to prevent the spread of fire" and that "this may involve a conflict between the interests of various owners of premises". He also concluded that, while there could be exceptional situations where the conduct of those involved created a relationship of proximity which would give rise to a duty of care, it did not in the case of the present appeals. The position was that the fire brigade did not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care "merely by attending at the fire ground and fighting the fire".
34. However, with regard to the question of public policy, Stuart-Smith LJ indicated that the Court was sympathetic to the argument of the plaintiff. He stated (at p.1044 E-F) :

"If we had found a sufficient relationship of proximity …., we do not think that we would have found the arguments for excluding a duty of care on the grounds that it would not be just, fair and reasonable convincing. The analogy with the police exercising their functions of investigating and suppressing crime is not close. The floodgates argument is not persuasive; nor is that based on insurance. Many of the other arguments are equally applicable to other public services, for example, the National Health Service. We do not think that the principles which underlie those decisions where immunity has been granted can be sufficiently identified in the case of fire brigades".

35. It is to be noted that Stuart Smith LJ recognised that there could be differences between the approach in cases involving the police and the fire service. I do not regard the fact that he referred to a common feature of the rescue and protective services meant that he was suggesting that the position was identical in every case involving those services. I consider that he was applying established principles to the class of case with which he was concerned. Even in relation to the appeals which the Court was considering, the Court came to different decisions on the facts applying those principles.
36. We were referred to a number of first instance decisions in which the principles which I have been discussing were applied. They are interesting illustrations of the conclusions of the judges concerned in relation to the facts which the cases involved. They are not binding on this Court and, without intending any disrespect to the judges involved, I am content to regard them as being confined to their own facts.

Was the Judge's Decision Correct?

37. The line of authority reflected in the Alexandrou and Capital & Counties cases is not without its critics. (See Tortious Liability of Statutory Bodies: a Comparative and Economic Analysis of Five English Cases, Markesinis and others, Hart Publishing (1999) and Paul Craig & Duncan Fairgrieve, Barrett, Negligence and Discretionary Powers, [1999] Public Law 626) However, unless the line of authority can be distinguished, it is clearly binding on this Court, although the adverse response of the European Court of Human Rights in Osman v The UK [1999] 1 FLR 193 may be influencing the House of Lords to adopt a more restrictive approach to the exclusion of liability to categories of cases without first ascertaining their precise facts. (See Barrett v Enfield London Borough Council [1999] 3 WLR 79 and Markesinis 96-104.) In Barrett, Lord Browne-Wilkinson indicated that he found Osman extremely difficult to understand; a view which has been echoed in a lecture of Lord Hoffmann and in the contribution to Public Law to which I have referred. The possible consequences also concern me from a procedural point of view in the light of the new culture in litigation in this jurisdiction as a result of the introduction of the CPR. I should, however, acknowledge that there may well be a more positive consequence of the Osman decision. It does draw attention to the fact that in this area of the law there is a danger that statements made in judgments will be applied more widely and more rigidly than was in fact intended. The statements are intended to assist in the difficult task of determining whether a duty of care exists. They are tools not rules. There are cases in which even the three requirements identified by Lord Bridge may not by themselves provide an answer. Other tools may be needed to provide assistance. It may help to consider whether the subject of the alleged breach is the manner in which a discretion was exercised or the manner in which a decision was executed. With regard to the exercise of a statutory discretion it will be more difficult to establish that there is a duty. If the allegation relates to an activity focused on a restricted number of individuals, the obstacles in the way of establishing an obligation will be reduced. In these difficult cases it is necessary to examine the facts in detail. They are therefore usually not suitable for determination before the facts have been fully investigated. Before you can apply one case by analogy to another you need to be clear as to the facts to which you are applying it. Otherwise there is a risk that a principle can be applied to a situation where it produces a result which should offend your sense of justice. This, in Turner J's view and in my opinion, would be the consequence here of accepting Mr Munby's argument.
38. In so far as the Osman case underlined the dangers of a blanket approach so much the better. However, it would be wrong for the Osman decision to be taken as a signal that, even when the legal position is clear and an investigation of the facts would provide no assistance, the Courts should be reluctant to dismiss cases which have no real prospect of success. Courts are now encouraged, where an issue or issues can be identified which will resolve or help to resolve litigation, to take that issue or those issues at an early stage of the proceedings so as to achieve expedition and save expense. There is no question of any contravention of article 6 of the ECHR in so doing. Defendants as well as claimants are entitled to a fair trial and it is an important part of the case management function to bring proceedings to an end as expeditiously as possible. Although a strike out may appear to be a summary remedy, it is in fact indistinguishable from deciding a case on a preliminary point of law.
39. That the line of authority on which Mr Munby relies is at least arguably capable of being distinguished, has already been held in the earlier decision of this Court in this case.
40. There are obvious similarities between the facts of this case and the facts in the Alexandrou and Capital & Counties type of situation. The activities of the fire services are subject to a statutory framework, so are the functions of ambulance services. Section 3(1) of the National Health Service Act 1977 imposes on the Secretary of State a duty to provide, throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements, "medical, dental, nursing and ambulance services" (Section 1 and 3(1) of the National Health Service Act 1977). This duty is an exhortatory or target duty which does not create a statutory right, the breach of which can give rise to a private law right to damages. As the police and the fire services can be summoned by 999 calls so can the ambulance service, as in this case. However, the tasks which they can be called on to do when summoned can be very different. Mr Munby referred to examples of situations where to distinguish between one emergency service and another would suggest totally different treatment if his argument was not correct. The examples were far from the facts of this case. Here his argument could involve two different services provided under the same section of the same Act being treated very differently.
41. The approach in Capital & Counties has been extended to coastguards responding to an emergency at sea by May J in OLL Limited v The Secretary of State for Transport [1997] 3 All ER 897. May J, following two earlier decisions at first instance, indicated that the distinctions between the fire services and the coastguard were illusory and immaterial. He considered that it was not possible "sensibly" to impose liability "by assessing a level of intervention which falls short of intervention which results in positive injury directly inflicted … Directly inflicted physical injury is the first building block of the law of negligence because, unless it is excused, it will almost always be a component of a breach of duty" (at p.908 a-b). May J considered that the position was sufficiently clear to strike out the statement of claim. However again the facts here are very different
42. While recognising the similarities, I have no reservations about expressing the view that the decision of Turner J was right. The starting point is the fact that even when a statute only establishes a power for a body to act in a particular manner the body can be liable for negligence if there is also a common law duty created on the particular facts of the case. As Lord Browne-Wilkinson states in his significant examination of this subject in X v Bedfordshire Council [1995] 2 AC 633 (at p.735 F):

"It is clear that a common law duty of care may arise in the performance of statutory functions. But a broad distinction has to be drawn between (a) cases in which it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion ; (b) cases in which a duty of care is alleged to arise from the manner in which the statutory duty has been implemented in practice."

43. In the case of category (b) there is less difficulty in establishing that there is a duty of care, and in this case it is a (b) situation with which we are concerned. In this passage it is duties not powers which are being considered. The distinction between duties and powers is important because, the exercise of a power being discretionary, it is unlikely that there will be any duty of care. This is made clear by Lord Hoffmann in Stovin v Wise [1996] AC 923 at P950. But this case is one in which it would have been irrational not to have accepted the request to provide an ambulance and this can alter the situation (see Lord Hoffmann at P951-2).
44. Lord Slynn also deals with this subject in his opinion in Barrett v Enfield London Borough Council [1999] 3 WLR 79 at P95G and 96. He indicates that, if what the authority has done is outside its discretion, the statute is no defence. Lord Slynn cautions against introducing concepts of administrative law into the law of negligence (at p.97 B-C). But reading this comment in its context, it is clear that Lord Slynn is not suggesting that the fact that an authority has acted perversely in a public law sense is to be ignored. On the contrary he is adopting an approach which I would respectfully endorse of stressing the need to have regard to the facts.
45. Here what was being provided was a health service. In the case of health services under the Act the conventional situation is that there is a duty of care. Why should the position of the ambulance staff be different from that of doctors or nurses? In addition the arguments based on public policy are much weaker in the case of the ambulance service than they are in the case of the police or the fire service. The police and fire services' primary obligation is to the public at large. In protecting a particular victim of crime, the police are performing their more general role of maintaining public order and reducing crime. In the case of fire the fire service will normally be concerned not only to protect a particular property where a fire breaks out but also to prevent fire spreading. In the case of both services, there is therefore a concern to protect the public generally. The emergency services that can be summoned by a 999 call do, in the majority of situations, broadly carry out a similar function. But in reality they can be very different. The ambulance service is part of the Health Service. Its care function include transporting patients to and from hospital when the use of an ambulance for this purpose is desirable. It is therefore appropriate to regard the LAS as providing services of the category provided by hospitals and not as providing services equivalent to those rendered by the police or the fire service. Situations could arise where there is a conflict between the interests of a particular individual and the public at large. But in the case of the ambulance service in this particular case, the only member of the public who could be adversely affected was the claimant. It was the claimant alone for whom the ambulance had been called.
46. Cases could arise where an ambulance is required to attend a scene of an accident in which a number of people need transporting to hospital. That could be said to be a different situation, but, as the numbers involved would be limited, I would not regard this as necessarily leading to a different result. The result would depend on the facts. I would be resistant to a suggestion that the ambulance service could be regarded as negligent because by an error of judgment a less seriously injured patient was transported to hospital leaving a more seriously injured patient at the scene who, as a result, suffered further injuries. In such a situation, on the facts, it is most unlikely that there would be conduct which could be properly regarded as negligent. The requirement to establish that there has been a lack of care provides the LAS with the necessary protection.
47. An important feature of this case is that there is no question of an ambulance not being available or of a conflict in priorities. Again I recognise that where what is being attacked is the allocation of resources, whether in the provision of sufficient ambulances or sufficient drivers or attendants, different considerations could apply. There then could be issues which are not suited for resolution by the courts. However, once there are available, both in the form of an ambulance and in the form of manpower, the resources to provide an ambulance on which there are no alternative demands, the ambulance service would be acting perversely "in circumstances such as arose in this case", if it did not make those resources available. Having decided to provide an ambulance an explanation is required to justify a failure to attend within reasonable time.
48. Mr Munby does not suggest that the danger to the claimant was not reasonably foreseeable. Nor does he base his case on policy considerations. He focuses on the third strand, proximity, alone. The three strands are often intertwined. In Caparo Lord Oliver states (at p633 B-C) that "what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the Court's view that it would not be fair and reasonable to hold the defendant responsible."
49. So in my judgment here. The fact that it was a person who foreseeably would suffer further injuries by a delay in providing an ambulance, when there was no reason why it should not be provided, is important in establishing the necessary proximity and thus duty of care in this case. In other words, as there were no circumstances which made it unfair or unreasonable or unjust that liability should exist, there is no reason why there should not be liability if the arrival of the ambulance was delayed for no good reason. The acceptance of the call in this case established the duty of care. On the findings of the judge it was delay which caused the further injuries. If wrong information had not been given about the arrival of the ambulance, other means of transport could have been used.
50. The ambulance call having been made, apparently attendance is automatic. This does not prevent acceptance. If having attended there was no reason for the ambulance to go to the hospital there would be no obligation to make an unnecessary journey.
51. The reaction of the judge to the facts of this case accords with the likely reaction of any well-informed member of the public. In such a situation it would be regrettable indeed if there were not to be a right to compensation. It is clearly a factor which influenced May LJ in another case involving the police, Costello v The Chief Constable of Northumbria Police [1999] 1 All ER 550, where the Chief Constable was liable for the negligence of a senior police officer who exposed another police officer to unnecessary risk of injury. May LJ said (at p.564 g) :

"I am sure that Astill J was correct to say that the public would be greatly disturbed if the law held that there was no duty of care in this case."

52. I would say exactly the same of the facts in this case. As in Costello they are out of the ordinary. I would hope that it is unusual in the extreme for an ambulance to be delayed as this ambulance was delayed without the crew being able to put forward any explanation.
53. I would dismiss this appeal.

LORD JUSTICE ALDOUS :

I agree.

LORD JUSTICE LAWS :

I also agree.

Order: Appeal dismissed with costs; Legal aid assessment of Respondents' costs; leave to appeal to the House of Lords on condition that claimant will not be prejudiced either in relation to costs or damages in respect of any order that the House of Lords may make. Order does not form part of approved judgment.