Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 49
A432/06	OPINION OF LORD MACKAY OF DRUMADOON in the cause MARGARET AITKEN (AP) Pursuer; against SCOTTISH AMBULANCE SERVICE and OTHERS Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Caldwell, Q.C., Gilmore, Q.C.; Drummond Miller LLP

Defenders: Ferguson, Q.C., Dunlop, Q.C.; Ranald F.Macdonald, Solicitor

10 March 2011

Introduction

[1] The pursuer is the mother of the late Nikki Williamson, who was born on 17 August 1988 and who died in the Southern General Hospital in Glasgow on 1 November 2003. Following the approach taken in the written pleadings, I shall refer to the pursuer's daughter as Nikki. The first defenders are the Scottish Ambulance Service, a body constituted under statute. The second defenders are the Greater Glasgow Health Board.

[2] The pursuer seeks an award of damages jointly and severally against both defenders. The damages are sought in respect of the loss the pursuer suffered on account of the death of her daughter Nikki on 1 November 2003. Each of the defenders is sued on the basis of their vicarious liability for the fault and negligence of others for whose acts and omissions they are responsible. There are also averments of fault directed at the first defenders themselves. Those latter averments are not relevant to the issues with which this opinion is concerned.

[3] The case came before me at a procedure roll hearing, when the first defenders sought to have excluded from probation certain of the averments of fault in Condescendence V. In her written pleadings, the pursuer avers that a 999 call was made from her house in Glasgow at 13.18 hours on 1 November 2003. It was answered by a member of staff in the first defenders' Emergency Medical Dispatch Centre ("the EMDC"). During the 999 call, the member of staff in the EMDC was asked by the pursuer's son to send an ambulance to the pursuer's house, where his sister Nikki was experiencing an epileptic seizure. An ambulance did not arrive at that address until 13.51 hours. It had been despatched there by the member of the EMDC staff. Put shortly, the principal question raised during the procedure roll was whether that member of staff in the EMDC, who answered the 999 call, owed any duty of care to Nikki during the period between 13.18 hours and 13.51 hours. The second defenders took no part in the procedure roll hearing. They are content that the action should proceed to a proof before answer on the written pleadings as they now stand.

The written pleadings

[4] In her written pleadings, the pursuer avers that from her early childhood Nikki had suffered from epilepsy. She had experienced epileptic fits on a number of occasions. It is averred that the majority of epileptic fits are brief, self-limiting episodes. Epileptic activity which persists for thirty minutes or more is known as status epilepticus. In such circumstances seizures may either be prolonged attacks or recurrent attacks, without recovery in between. Nikki had developed status epilepticus on at least two occasions prior to 1 November 2003. On those occasions she had received prompt and appropriate treatment and had survived.

[5] In her written pleadings the pursuer offers to prove:

"Status epilepticus is always a medical emergency. Rapid termination of the seizures is of the utmost priority. A patient with status epilepticus is likely to require transfer to hospital. Between thirty and sixty minutes after onset of status epilepticus, the body's self-regulatory mechanisms progressively breakdown. Blood pressure may drop, causing reduced blood flow to the brain and result ischaemic anoxic damage. Pulmonary oedema, cardiac arrhythmia, eventual cardiac failure and death may occur. Status epilepticus lasting one hour or more is associated with a high morality rate. All competent Health Care Professionals and those charged with responding to medical emergencies are aware of the need for prompt and effective treatment of epileptic seizures."

[6] The pursuer's averments in Condescendence 4 in respect of the events of 1 November 2003 include the following passage:

"(ii) On 1 November 2003, shortly after 1pm, Nikki developed an epileptic seizure. The pursuer was present at such onset. When the seizure did not resolve spontaneously, the pursuer instructed her son, Ross Williamson, to telephone the emergency services and request the immediate attendance of an Ambulance. Ross dialled 999. At the material time the pursuer lived a short distance from the Southern General Hospital. A telephone call was made at 13.18 hours and was registered by the first defenders' Emergency Medical Despatch Centre (hereinafter called EMDC) at 13.19 hours. The said call was accordingly accepted by the first defenders' EMDC staff. The EMDC staff (whose precise identify is to the pursuer unknown) were at all times in the employment of the first defenders. The said staff operated in accordance with procedures authorised by the first defenders. The member of EMDC staff elicited detailed information from Ross about Nikki's medical history and current condition. Ross advised that she was unconscious, that it was a bad fit and she had not had one like this before. Said employee gave Ross advice on how to manage Nikki's condition until the ambulance arrived. Said employee reassured him and advised Ross that an Ambulance was on its way. The pursuer and Nikki accordingly relied on the first defenders to provide an ambulance to transport Nikki to Hospital should that be necessary. At the material time it was the first defenders' standard practice immediately to despatch an ambulance in response to a 999 call and any further resources required dependent on the circumstances of the emergency. The EMDC despatched a Rapid Response Unit (hereinafter called RRU) consisting of a single Paramedic to attend Nikki. Believed and averred that said Paramedic was J Gowran. It is normal and accepted practice that, in addition to activating the RRU, the EMDC would proceed to identify and despatch the first available Accident and Emergency Ambulance. An RRU is provided with only limited equipment and is not suitable for transporting a patient such as Nikki to Hospital. Given that Nikki was unconscious and fitting, she was a Category A, or red, emergency call. At the material time, it was standard practice to send an Ambulance in addition to a RRU to such emergencies."

The pursuer's son Ross remained in telephone contact with the first defenders following his initial call to them and repeatedly requested the immediate attendance of an ambulance. During the second call Ross made he stressed that the situation was urgent and was again advised "It is on its way".

[7] The pursuer's written pleadings also deal with what happened after the Rapid Response Paramedic (the "RRU") arrived at the pursuer's house at 13.28 hours. At 13.38 hours the RRU requested the first defenders to dispatch, as soon as possible, a double-crewed ambulance to transfer Nikki to hospital. At 13.40 hours, the EMDC staff despatched an ambulance which arrived at the pursuer's house at 13.51 hours. The averments deal with what happened thereafter in the house; during the subsequent transfer of Nikki from the house to the Southern General Hospital, which took place between 14.05 and 14.10 hours; and at the hospital prior to Nikki's death at 22.07 hours. The pursuer avers that had the first defenders' staff dispatched an ambulance promptly, following receipt of the first 999 call, it is likely that the ambulance would have arrived at the pursuer's house within 8 minutes.

[8] The pursuer avers that Nikki's death was caused, inter alia, by fault and negligence on the part of the EMDC employee, who answered the 999 calls. As the procedure roll hearing was only concerned with the averments of fault directed against that employee of the first defenders, it is only those averments in Condescendence V that need be quoted:

"(i) The pursuer's loss, injury and damage was caused by the fault and negligence of the first defenders' EMDC employee for whose acts and omissions the first defenders are liable. It was his duty to take reasonable care for those to whom he provided emergency services, including the said Nikki Williamson, and not to expose them to unnecessary risk of injury. It was his duty to take reasonable care to provide the said Nikki Williamson with the standard of care to be expected of an ordinarily competent EMDC employee exercising reasonable skill and care. In the exercise of such care it was his duty immediately to despatch an ambulance to attend Nikki when so requested. At the material time, an ordinarily competent EMDC employee would have known that it was normal and accepted practice when responding to a call prioritised as immediately life-threatening (red) to despatch an ambulance at the same time as activating a Rapid Response Unit. At the material time, no ordinarily competent EMDC employee would have delayed for 21 minutes in despatching an Ambulance in response to said call. Esto no ambulance was immediately available (which is denied), it was his duty in the exercise of reasonable care to despatch the first available ambulance thereafter. An ordinarily competent EMDC employee would have known that epileptic activity which does not resolve spontaneously is a life-threatening medical emergency. He knew or ought to have known that rapid transfer of the patient to Hospital for appropriate and timeous treatment was of the utmost priority; that the RRU was unsuitable for such transfer; and that such transfer could be accomplished only by ambulance. In each and all of the said duties the said EMDC employee failed and, by his failure caused or, at least, materially contributed to the pursuer's loss, injury and damage. No ordinarily competent EMDC employee exercising reasonable skill and care would have so failed."

Motion before the court

[9] When the record closed, the second defenders offered a proof before answer. The first defenders, however, moved that the case be sent to the procedure roll. Under reference to their first plea in law, they seek the exclusion of the averments of fault in Condescendence V(i) on the part of the EMDC employee, which I have quoted, on the ground that they are irrelevant and lacking in specification. Those averments cover the period between the making of the first of the 999 calls at 13.18 hours and the arrival of an ambulance at the pursuer's house at 13.51 hours. During their submissions, counsel for the first defenders referred to that period as "Period 1". Period 2 ran from the arrival of the ambulance at the pursuer's house until its Nikki was delivered to the Southern General Hospital. Period 3 followed Nikki's arrival at that hospital. The first defenders' counsel argued that no duty of care rested on the member of the EMDC staff during Period 1.

[10] Under reference to Jamieson v Jamieson 1952 SC (HL) 44, Miller v South of Scotland Electricity Board 1958 SC (HL) 20, and Mitchell v Glasgow City Council [2009] 1 AC 294, paras 10-11, per Lord Hope of Craighead, the first defenders submitted that the existence or otherwise of the duty of care referred to in the averments under scrutiny could be determined by legal debate. There was no requirement for evidence. Counsel for the pursuers invited me to hold that the averments challenged contained relevant grounds of fault and to refuse the first defenders' motion on that basis. In the event that the issue as to relevancy of the averments under challenge remained unresolved after I had considered the parties' submissions, I should also refuse the motion and allow the action to proceed to a proof before answer, with the first defenders' plea to the relevancy left standing. Parties were agreed on the test which applies in a situation such as the present: "It is well established that an action will not be dismissed as irrelevant unless, even if the pursuer proves all his averments, it must necessarily fail." (Mitchell v Glasgow City Council, para 10, per Lord Hope of Craighead)

The statutory framework

[11] Before summarising the submissions I received, it is helpful to outline the statutory context in which the first defenders operate. Section 37 of the National Health Service (Scotland) Act 1978 ( "the 1978 Act") provides that the Secretary of State shall make arrangements, to such extent as he considers necessary, to meet all reasonable requirements, for the purposes of the prevention of illness, the care of persons suffering from illness or the after-care of such persons. Section 45 of the 1978 Act provides that it shall be the duty of the Secretary of State to make such provision as he thinks necessary for securing that ambulances and other means of transport are available for the conveyance of persons suffering from illness or of other persons for whom such transport is reasonably required in order to avail themselves of any service under the 1978 Act. Section 2(1)(b) of the 1978 Act gave the Secretary of State for Scotland power to constitute Special Health Boards for the purpose of exercising such of his functions under the 1978 Act as he may determine. Regulation 4(1) of The Scottish Ambulance Service Board Order 1999 ("the 1999 Order") provides that the first defenders (the Scottish Ambulance Service Board ), who are constituted by the Order, shall exercise the functions of the Secretary of State specified inter alia in sections 37 and 45 of the 1978 Act. Following the coming into force of the Scotland Act 1998 those functions now rest with the Scottish Ministers. Section 2(8) of the 1978 Act, which applies to the first defenders, provides:

"2(8) A Health Board shall, notwithstanding that it is exercising functions on behalf of the Secretary of State, be entitled to enforce any rights acquired, and shall be liable in respect of any liabilities incurred (including liability in damages for wrongful or negligent acts or omissions) in the exercise of those functions in all respects as if the Health Boards were acting as a principal; and all proceedings for the enforcement of such rights or liabilities shall be brought by or against the Health Board in its own name."

Submissions on behalf of the first defenders b y Mr Dunlop QC

[12] At the outset of his submissions, Mr Dunlop stressed that the first defenders accepted there had been a common law duty of care on their ambulance staff, from the time of their arrival in the ambulance at the pursuer's house at 13.51 hours until they delivered Nikki to the Southern General Hospital at 14.10 hours. However he submitted that the first defenders, as an ambulance service, are not subject to any common law duty to rescue members of the public, such as Nikki. In that respect they are in no different a position to other emergency services. That being so, on 1 November 2003, there had been no duty of care on the first defenders, or any of their employees, to cause an ambulance to attend at the pursuer's house at all and a fortiori no duty on them to arrange that an ambulance would attend within any particular time frame.

[13] Mr Dunlop's submissions fell into five chapters, all of which were outlined in written submissions, which he lodged at the outset of the hearing, and amplified on during the course of the hearing. A similar approach was followed by each the other three counsel who addressed me. I am grateful to them for their carefully prepared and well delivered submissions, which I now turn to summarise.

[14] The various chapters of Mr Dunlop's submissions all focussed on what he referred to as Period 1. The first chapter of his submissions was to the effect that there is, in general, no common law duty on one individual to rescue another. Any duty to intervene, in circumstances where a rescue may be required, is a moral as opposed to a legal one. Thus an ambulance man or a doctor passing the scene of an accident is under no duty to stop, even if he is waved down and in a position to do so. In such circumstances, a failure to rescue is no more that a pure omission which will not, in general, be actionable. A common law duty of care is only engaged if the ambulance man takes on the injured party as someone who is to be transferred to hospital or the doctor treats the injured party as a patient. In the present case, accordingly, anything that occurred prior to the arrival of the ambulance at the pursuer's house at 13.51 hours amounted to no more that a pure omission on the part of the first defenders. Such an omission was not actionable.

[15] Mr Dunlop submitted that the absence of any duty to rescue another is a consequence of the general rule that there is no general duty to act and hence no liability for omission to do so (Smith v Littlewoods Organisation Ltd [1987] AC 241, 271, per Lord Goff of Chieveley). The reluctance of the law to impose liability for pure omissions was illustrated and explained further in Stovin v Wise [1996] AC 923,

933-944, per Lord Hoffman and Mitchell v Glasgow City Council [2008] SC 351, paras [86]-[89], per Lord Reed, and para [159], per Lord Penrose.

[16] In the second chapter of his submissions, Mr Dunlop argued that any duty alleged to have been owed to Nikki, during Period 1, could only have arisen by virtue of the fact that the first defenders, as the Scottish Ambulance Service, have statutory functions. It was clear that the first defenders are under no statutory duty to attend in response to a 999 call. That raised the question of whether the statutory functions of the first defenders resulted in their being under a private law duty to do so. He submitted they did not. The statutory functions provided for in section 45 of the 1978 Act, were not enforceable in private law, only by judicial review. That pointed away from Parliament having intended that a common law duty of care should be placed on those exercising those statutory functions, any failure of which would give rise to a private law claim. The fact that Parliament had provided for the expenditure of public money on the ambulance service did not mean that compensation would be payable if an ambulance was not provided in response to a 999 call. There was a distinction between not acting and negligent actions. In the present case, there had been no negligent actions during Period 1, which could be said to have worsened Nikki's condition. Public authorities exercising their statutory functions were not liable for omitting to act unless special circumstances existed. Special circumstances could arise when a public authority had acted, that is to say engaged in a positive act; where there had been a special relationship between the public authority and a particular individual; and where there had been a voluntary assumption of responsibility by the public authority in respect of a particular individual. In the present case, nothing the first defenders did prior to dispatching one of their ambulances to the pursuer's house gave rise to any common law duty of care relating to when that ambulance should arrive at the pursuer's house. However, a duty of care to Nikki did arise when their ambulance arrived. That duty included a duty to transfer Nikki to hospital as quickly as practicable. There was a distinction, therefore, between the first defenders not acting during Period 1 and any negligent actings on their part during Period 2. Reference was made to Stovin v Wise, pp 948H -950F, 951E-953A, 953E-F, 954E-955C and 958A-D, per Lord Hoffman: Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, paras 17-19, 23-26, 30-33 and 38, per Lord Hoffman, paras 71-73 and 75, per Lord Scott of Foscote, and para 14, per Lord Rodger of Earlsferry; Mitchell v Glasgow City Council [2009] 1 AC 874, paras 14-15, and 21-29, per Lord Hope of Craighead, paras 39-44, per Lord Scott of Foscote, and paras 62- 63, per Lord Rodger of Earlsferry; and Jain v Trent Strategic Health Authority [2009] 1 AC 853, paras 19-21 and 29, per Lord Scott of Foscote.

[17] In the third chapter of his submissions, Mr Dunlop referred me to a number of previous authorities in England involving various branches of the emergency services. He acknowledged that there had been some divergence of opinion amongst those authorities. In particular in Kent v Griffiths
[2001] Q B 36, it had been held that an ambulance service had been under a duty to respond to a 999 call.

[18] Mr Dunlop explained that the cases he was citing illustrated that the courts in England have held that none of the other branches of the emergency services owe any common law duty to individual members of the public of the nature of that under scrutiny in the present case. In Hill v Chief Constable of West Yorkshire [1989] 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. Alexandrou v Oxford [1993] 4 All ER 328, also involved the police, the defendant being a Chief Constable. It had addressed 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. Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 and Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 853, were two other cases involving the police in which Hill v Chief Constable of West Yorkshire had been applied. In Capital & Counties plc v Hampshire County Council
[1997] 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 [1997] 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.

[19] The case of Kent v Griffiths
[2001] QB 36 figured largely in the submissions on behalf of both parties. In Kent v Griffiths the claimant sought, amongst other remedies, an award of damages for personal injury from the ambulance service. The facts giving rise to that claim were these. The claimant suffered an asthma attack at home. At 4.25 pm her doctor telephoned 999 and asked for an ambulance to take the claimant to hospital immediately. Despite two further telephone calls the ambulance did not arrive until 5.05 pm. Shortly before she arrived at the hospital the claimant suffered a respiratory arrest which caused brain damage. The record prepared by a member of the ambulance service was falsified to show the time of the arrival at the claimant's house as 4.47 pm.

[20] The case was reported at three stages of its progress through the courts: (a) as Kent v London Ambulance Services and Others [1999] P.I.Q.R. P192, when the Court of Appeal allowed an appeal by the claimant inter alia against an order by a single judge striking out her claim against the London Ambulance Service. That claim was based on the ambulance service's failure to respond promptly to a 999 call requesting that an ambulance be sent to the claimant's house as an emergency; (b) as Kent v Griffiths (No.1) [1999] Lloyd's Rep Med 424, when the judge, Turner J, found after hearing evidence that an ambulance had not arrived at the claimant's home within a reasonable time, that no satisfactory explanation had been given for the delay, and that if an ambulance had arrived within a reasonable time that was a high probability that the respiratory arrest the claimant suffered would have been averted. Turner J held that in the circumstances the ambulance service had owed a duty of care to the claimant and that by reason of their breach of it her claim for damages succeeded; and (c) as Kent v Griffiths [2001] QB 36, when the Court of Appeal dismissed an appeal by the ambulance service against the decision of Turner J, and distinguished Alexandrou v Oxford and Capital and Counties plc v Hampshire County Council in the process of doing so. That appeal had been advanced by the defendants on the ground that there had been no proximity between the claimant and the ambulance service. It was not suggested that danger to the claimant in the event of delay in the arrival of an ambulance was not reasonably foreseeable. Nor was it contended that policy considerations excluded the existence of a duty of reasonable care on the London Ambulance Service, on the basis that such a duty would not have been just, fair and reasonable.

[21] Mr Dunlop advanced a number of reasons why the decision of the Court of Appeal in Kent v Griffiths should not be followed. He argued that the Court had erred in concluding inter alia (i) that the issue whether a duty of care arose depended on the precise words used by the persons who made and answered the 999 call (para 27); (ii) that the tasks the police, the fire service and the ambulance service are called upon to carry out can be very different (para 40), (iii) that it could base its decision that a duty of care existed in part on their assessment that on the facts of the case it would have been irrational for the London Ambulance Service not to have accepted the request to provide an ambulance (para 43); and (iv) that the acceptance of the 999 call by the London Ambulance Service created the duty of care (para 49) (cf. Alexandrou v Oxford and Capital and Counties plc v Hampshire County Council). In response to a question I raised, Mr Dunlop indicated that he was unaware of any case in England in which the decision of the Court of Appeal in Kent v Griffiths had been disapproved. He did, however, draw the court's attention to Wilson v British Boxing Board [2001] QB 1134, in which Lord Phillips of Worth Matravers MR having referred to Capital and Counties plc v Hampshire County Council and Alexandrou v Oxford discussed Kent v Griffiths at paras 55-57 of his judgment:

"55. As I read the judgment the duty of care turned upon the acceptance by the ambulance service of the request to provide an ambulance and thus the acceptance of responsibility for the care of the particular patient. Thus Lord Woolf MR observed at p.43, para 9:

'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.'

56. He summarised his conclusion, at p 54, para.49:

'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.'

57. This concludes my consideration of cases dealing with the assumption of responsibility to exercise reasonable care to safeguard a victim from the consequences of an existing personal injury or illness. They support the proposition that the act of undertaking to cater for the medical needs of a victim of illness or injury will generally carry with it the duty to exercise reasonable care in addressing those needs. While this may not be true of the volunteer who offers assistance at the scene of an accident, it will be true of a body whose purpose is or includes the provision of such assistance."

[22] In the fourth chapter of his submissions, Mr Dunlop argued that prior to the arrival of the ambulance at the pursuer's house there had been no relationship of proximity between Nikki and the first defenders. 999 calls are frequently made, usually by someone who is neither the injured person nor medically qualified. When a call was received, there was no way of knowing exactly how urgent the situation might be and, in certain instances, whether the call was genuine. If a duty of care arose on the answering of a call, then a relationship of proximity would arise whenever anyone dialled 999.

[23] It was submitted that the correct approach to determining the existence or otherwise of proximity was illustrated in Mitchell v Glasgow City Council [2009] 1 AC 874. The authorities the first defenders had placed before the court, in particular Gorringe, envisaged three possible bases for holding proximity to have arisen when a public authority was exercising its statutory functions - (a) when acts had been done by the public authority, (b) when the public authority had entered into a relationship with another individual, or (c) when the public authority had undertaken responsibility in respect of another individual. Even if it was assumed that the pursuer would be able to establish all the facts she offers to prove, none of those possible bases for the existence of a duty of care would be established. Prior to the arrival of the ambulance at the pursuer's house there had been no actings (as opposed to omissions) on the part of the first defenders which could be complained of as having been negligent. It was the failure to dispatch an ambulance that was said to have been culpable. That had been an omission, rather than an acting on the part of the first defenders. By answering the 999 call, the first defenders had not created, or entered into, a relationship with Nikki or anyone else on Nikki's behalf. It was only when the ambulance staff had arrived at the pursuer's house and started to transfer Nikki to hospital, that there had been a clear relationship of proximity. Such an approach to determining the existence of proximity has been adopted in Alexandrou v Oxford, Capital & Counties Plc v Hampshire County Council and OLL Ltd v Secretary of State for Transport [1997] 3 All E.R. 897.

[24] Nor was it arguable that the first defenders had voluntarily assumed responsibility for Nikki prior to the arrival of the ambulance at the pursuer's house. In answering the 999 call and sending an ambulance to the pursuer's house, all the first defenders had been doing had been carrying out its statutory duties. They had not voluntarily assumed any responsibility for Nikki. As the assumption of responsibility appears to have been the basis on which the Court of Appeal had found for the claimant in Kent v Griffiths (see Watson v British Boxing Board, para 46, per Lord Philips) that decision should not be followed. Rowley v Secretary of State for Work and Pensions, [2007] 1 WLR 2861, paras 51-55, per Dyson LJ, and X v Hounslow Metropolitan Borough Council, [2009] PTSR 1158, paras 40 and 59-60, per Sir Anthony Clarke MR supported the contention advanced on behalf of the first defenders that when a statutory body merely takes the steps that Parliament intended it to take that would not normally amount to the statutory body assuming responsibility for another individual.

[25] The final chapter of Mr Dunlop's submissions was to the effect that it would not be fair, just and reasonable to impose a duty of care on the first defenders, prior to the attendance of their ambulance staff at the scene to which an ambulance had been called. Once the ambulance staff arrived there, they would owe a duty to take reasonable care for the safety of the person on whom they were attending. A number of reasons were advanced in support of this particular line of argument. The duty of care contended for would be due to a wide and indeterminate class of people, namely anyone dialling 999 (or the subject of a 999 call). It would be due no matter the nature of the illness or injury suffered by the subject of the call. There had been 999 calls where what had been said by the caller about the need for an ambulance had been hysterically over-stated or unrealistically under-stated. The first defenders also received some malicious calls. For these reasons, there were many calls in which the true nature of the condition of the individual who was the subject of the call was not known until the ambulance staff arrived and saw the subject. As the duty would be owed to the subject of every 999 call, it would inevitably apply in situations of conflict as to where the ambulances actually available to the first defenders' staff should be sent. The allocation of available ambulances in response to 999 calls should take place in a manner that was not hindered by concerns regarding litigation. The existence of a duty of care on the first defenders before their ambulance crew actually reached the subject of a 999 call would encourage a defensive attitude in responding to 999 calls. That would not improve the service the first defenders sought to provide. It was also important to remember that the tripartite test in Caparo Industries Plc v Dickman [1990] 2AC 605 did not involve three discrete elements. The fact that the foreseeability of harm to the subject of a 999 call was only of the most general nature, in that not every subject of a 999 call would suffer harm if the ambulance sent was delayed or did not arrive, and the weakness of any proximity between the members of the ambulance service and the subject of a 999 call, both pointed away from it being fair just and reasonable to impose a duty of care of the nature contended for on the first defenders or their staff.

Submissions on behalf of the pursuer by Mrs Gilmore QC

[26] Mrs Gilmore addressed the court first on behalf of the pursuer. She invited the court to refuse the motion made on behalf of the first defenders and to allow a proof before answer. Mrs Gilmore outlined her submissions as follows: (1) The pursuer was not asserting that the first defenders had been subject to a common law duty of care that was parallel to statutory duties that had also been incumbent upon them. (2) What was being argued was that the first defenders had been under a common law duty of care that arose against the statutory background under which the first defenders were constituted and operated. The first defenders were part of the National Health Service, a Special Health Board constituted under section 2(1)(b) of the 1978 Act (as amended). As such, notwithstanding that they were exercising functions on behalf of the Scottish Ministers, they were liable in damages for wrongful or negligent acts or omissions in the exercise of those functions in all respects as if they were acting as a principal (see section 2(8) of the 1978 Act). (3) What the pursuer averred and sought to prove was that there had been carelessness on the part of employees of the first defenders in the performance of a routine task, for which the defenders were vicariously liable. That routine task was the answering of 999 calls and the dispatching of an ambulance to the pursuer's house, in response to the first 999 call which fell to be treated as a red emergency call. (4) The statutory background did not explicitly or impliedly exclude the first defenders being under a common law duty of care. (5) Accordingly the issue as to the relevancy of the pursuer's pleadings, which the first defenders sought to have excluded from probation, fell to be determined by the application of the test laid down in Caparo Industries Plc v Dickman. (6) The law recognised that if an agency of the state exercised its statutory powers carelessly, there could be liability at common law in negligence. (7) The ambulance service was part of the heath service and, as such, distinguishable from the police, the fire brigade and HM Coastguard. It was a mistake to treat all of those services together, as they all have different statutory foundations and different roles in different times and circumstances. (8) Many of the cases cited on behalf of the first defenders were distinguishable and were not apt to be applied in the circumstances of this case. (9) In any event, it could not be said, without inquiry into the facts and circumstances, that a duty of case of the nature set out in the averments under challenge did not arise following the first 999 call.

[27] In developing her submissions, Mrs Gilmore stressed the importance of the statutory background to which I have already referred. It was emphasised that the pursuer was not claiming the existence of a statutory remedy against the first defenders. Rather the pursuer was claiming that the actings of the pursuer, through the 999 calls made by her son, on the one hand, and the actings of a member of the first defenders' EMDC staff who answered the calls, on the other, had brought into existence a relationship between Nikki and the first defenders, such as to give rise to a common law duty of care owed by the EMDC staff to Nikki. That had occurred during the course of the first 999 call. As was clear from what Lord Hoffman said in para 38 of his speech in Gorringe v Calderdale Metropolitan Borough Council the House of Lords in that appeal was not concerned with cases in which a public authority had actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. Thus the first defenders' reliance on Gorringe and Stovin v Wyse was misplaced, albeit that it was clear from what Lord Hoffman had said in para 38 that a private law remedy can exist against a background of statutory powers and duties.

[28] Mrs Gilmore argued that in the present case a relationship had arisen out of the practical manner in which a member of the first defenders' staff had performed the first defenders' statutory functions. The negligence was alleged to have occurred in the carrying out of a routine operation, namely answering and responding to a 999 call and dispatching an ambulance in response to what fell to be treated, according to first defenders' own procedures, as a red emergency call. The pursuer's complaint was of negligence not in the taking of any discretionary decision as to whether to carry out a particular act, but in the practical manner in which the despatching of an ambulance to the pursuer's house had been performed. No element of policy or issue as to the allocation of resources had being involved in the member of the first defenders' ERDC staff acting in the manner he did. Having categorised the 999 call he had received as a red emergency, the member of the ERDC staff had been negligent in the implementation of the first defenders' own procedures for such cases (see Sutherland Shire Council v Heyman (1985) 157 C.L.R. 424; X (Minors) v Bedfordshire County Council [1995] 2 A.C. 633, 739; Miller v Greater Glasgow Health Board [2010] CSIH 40, 41); and Delictual Liability Thomson, (Fourth Edition (2009), 226-7.)

[29] Mrs Gilmore accepted that the issue whether there had been a duty of care on the first defenders' employee fell to be determined in accordance with the test laid down in Caparo Industries Plc v Dickman. In relation to the first branch of the test she noted that the first defenders did not appear to be disputing that during the first 999 call it would have been obvious to the employee who answered the first 999 call that if an ambulance was not sent within a reasonable period of time to transfer Nikki to hospital, harm to Nikki was foreseeable.

[30] On the issue of proximity, I was referred to the opinion of Lord Hamilton in Gibson v Orr 1999 SC 420, 432B-435H, as providing useful guidance. In his opinion, Lord Hamilton made clear that it was important to determine the relevant point of time when a relationship sufficient to found a duty of care came into existence. In the present case that had occurred during the first 999 call, when having taken details of Nikki's medical history from the pursuer's son, the member of staff in the ERDC had prioritised the call in terms of the Advanced Medical Priority Despatch System as immediately life threatening, and as such a red emergency call, and had advised the pursuer's son that an ambulance was on its way. In his opinion, Lord Hamilton had also drawn attention to the fact that in some personal injury cases in England the concept of assumption of responsibility (combined with reliance by the other party on such assumption) had been used as a touchstone for determining whether or not sufficient proximity existed (e.g. Capital & Counties Plc v Hampshire County Council [1997] QB 1004, 1034-1038, per Stuart-Smith LJ), although he observed that there was some artificiality in speaking of persons who had been unconscious relying on such an assumption of responsibility. Reference was also made to Mitchell v Glasgow City Council 2008 SC 351, 384, per Lord Reed, and [2009] 1 AC 874, para 29, per Lord Hope of Craighead.

[31] Mrs Gilmore amplified on the reasons for arguing that there had been a relationship between the first defenders and Nikki. Nikki had been unconscious. She had been entirely dependent on others. Once Nikki had suffered her seizure she required to be taken to hospital as a matter of urgency. Mrs Gilmore explained that the pursuer, on behalf of Nikki, had relied on the first defenders to provide an ambulance to take her to hospital as quickly as possible. The first defenders' statutory functions included caring for persons suffering from illness and conveying such persons to hospital. It was clear that on the basis of her pleadings the pursuer would be able to prove that the member of the first defenders' EMDC staff, who had answered the first 999 call had (a) accepted the call as genuine, (b) accepted that Nikki was suffering from a life threatening condition, (c) recognised that the 999 call should be categorised as a red emergency call, (d) understood that Nikki required to be taken to hospital as an emergency and that delay in transporting Nikki to hospital might lead to her death or a serious deterioration in her condition, (e) dispatched a RRU to attend at the pursuer's house as soon as possible, (f) was aware that the RRU would not be able to take Nikki to hospital himself, (g) assured the pursuer's son that an ambulance was on its way, and (h) given the pursuer's son medical advice as to how Nikki's condition should be managed prior to the arrival of the ambulance. During subsequent 999 calls the same employee had repeated the assurance that an ambulance was on its way.

[32] Mrs Gilmore argued that all those actings on the part of the first defenders' employee had induced the pursuer (and her son) to rely on the first defenders to provide an ambulance as a matter of urgency and had created a relationship of proximity between the first defenders and Nikki (cf. Burnett v Grampian Fire and Rescue Services 2007 SLT 61, para 53, per Lord Macphail, and Mitchell v Glasgow City Council [2009] 1 AC 874, para 29, per Lord Hope of Craighead). On that basis it might be thought to be unnecessary for the court to analyse the facts of the case against the concept of the assumption of responsibility, because it could be said that the first defenders' employee had taken control of getting Nikki to hospital by ambulance. That had given rise to the requisite element of proximity (Stovin v Wise [1996] AC 923, 944D, per Lord Hoffman; and Gibson v Orr, 433b, per Lord Hamilton).

[33] Mrs Gilmore placed particular reliance on Kent v Griffiths. She submitted that the facts in Kent v Griffiths were on all fours with the present case. She drew attention to a number of points made by Lord Woolf MR in his judgement, in particular the need to have regard to the facts of the case, in determining whether a duty of care existed. The facts in Kent v Griffiths had of course been determined by Turner J and included that an ambulance had been available and there had been no question of a conflict in priorities. Neither of those issues has been raised by the first defenders in their written pleadings. However they were factual issues which might arise during a proof.

[34] As far as the third element of the test was concerned, whether a duty of care was fair, just and reasonable, Mrs Gilmore again stressed that it was important to look at the individual circumstances of the case. Nikki had been classified as an emergency. Accordingly the floodgates argument did not arise. There was no suggestion that a decision in favour of the pursuer would apply to everyone who called an ambulance. This case was pled along the lines of a professional negligence claim. The first defenders, as an ambulance service, were not in the same league as the police service and the fire brigade. They had more in common with the National Health Service of which they are a part. An ambulance should be viewed as being an outpost of a hospital. The National Health Service concentrates on individuals, rather than the wider public. The fire brigade have duties to the wider public. The police also have duties to the wider public. Were the fire brigade and police under a duty to individual members of the public that could interfere with the exercise of their duties to the wider public. On the other hand, doctors, nurses and ambulance men, who work in the National Health Service, focus on individuals and are susceptible to suit. That distinguished the National Health Service from the police and the fire brigade.

[35] Mrs Gilmore concluded her submissions by commenting on a number of the authorities founded on by Mr Dunlop. She stressed that both Gorringe and X (Minors) v Bedfordshire County Council [1995] 2 A.C. 663, acknowledged the possibility of a common law duty of care existing against the background of statutory duties and powers. X (Minors) v Bedfordshire County Council, pages 739 and 740, per Lord Browne-Wilkinson, and the recent case of Miller v Greater Glasgow NHS Board [2010] CSIH 40, illustrated how a distinction can be drawn between challenging the taking of a discretionary decision to carry out some act, which is not justiciable, and alleging carelessness in the practical manner in which that act has been performed, which is. In Miller v Greater Glasgow NHS Board such a distinction was drawn between the defenders exercising its discretion in relation to issues of policy, such as the allocation of resources and the fixing of priorities, and the management of a particular area of hospital activity, namely a hospital's hand-hygiene policy (para 41 of the opinion of the court delivered by Lord Osborne). The latter authority was of particular assistance because the pursuer did not accept that any question of policy or the allocation of resources was involved in the present case.

Submissions on behalf of the first defenders by Mr Ferguson QC

[36] Mr Ferguson adopted the submissions made by Mr Dunlop. His written submission amplified upon the lines of argument advanced by Mr Dunlop and responded to Mrs Gilmore's submissions. He stressed that a common law duty of care cannot be founded simply on a failure to provide some benefit which a public authority has a general public duty to provide.

[37] In responding to what had been said on behalf of the pursuer, Mr Ferguson observed that it was important to bear in mind that the common law duty contended for was said to have arisen in the context of a statutory background. It was not suggested that the common law duty was independent of the existence of that statutory framework. The mere existence of a statutory power to act did not give rise to a common law duty to exercise that power or a common law duty to exercise care when doing so. That was vouched by the cogent and principled line of authority, beginning with Stovin v Wise, to which Mr Dunlop had referred. The reliance on the distinction between question of policy, which were not justiciable, and operations, which were, did not assist the pursuer. It was an inadequate tool for determining whether it was appropriate to impose a duty of care in a particular case. In any event, this was not a case in which the first defenders had acted, entered into a relationship with Nikki or undertaken any responsibility for Nikki which provided a solid common law foundation for the contended duty of care. The pursuer's case was one of omission. It could not be argued that the first defenders had entered into a relationship with Nikki, or with the pursuer's son on Nikki's behalf. Nor could the first defenders be held to have assumed a common law duty of care merely by doing what the statutory framework under which they are constituted required or empowered them to do (see X v Hounslow Metropolitan Borough Council, para 60, per Sir Anthony Clark, MR).

[38] At the heart of Mr Ferguson's submissions was the contention that Kent v Griffiths had been wrongly decided. He advanced four reasons why the decision of the Court of Appeal should not be followed. In light of what was said in Gorringe v Calderdale Metropolitan Borough Council, paras 4 and 5, per Lord Steyn, and para 21, per Lord Hoffman, the Court of Appeal in Kent v Griffiths appear to have erred by relying on its view that it would have been irrational for the defendants not to have accepted the request for an ambulance for the claimant (para 43). Irrationality goes only to questions of breach of duty. It is not a good reason on which to base the existence of a common law duty of care. Mr Ferguson also argued that the decision of the Court of Appeal had been driven by the facts, rather than legal principle. The analogy drawn with the position of doctors was flawed (para 45). The duty of care owed by doctors to their patients was not owed because they were part of the National Health Service. The supposed distinction between the ambulance service and the other emergency services was also flawed (para 45). All emergency services can be called upon to assist in cases involving personal injury. The ambulance service should not be treated differently from the fire, police and coastguard services. Any principle supporting the existence of a common law duty of care should be applicable to the whole class of cases and applied consistently. Exceptions to the application of that principle should be justified on a reasoned basis. Here the class of cases was the emergency/rescue services, which included the ambulance service. The existing principle was that the emergency services do not owe a duty of care to persons they are called out to assist, unless by means of acts or intervention a new or different danger has been created. The acceptance of and responding to a 999 call was not a sufficient basis to constitute an exception to the application of that principle. It could not be said that by accepting the first 999 call or by reason of anything he said during that call, the first defenders' member of staff had assumed any responsibility or taken control of anything, nor had Nikki come to be in the charge of the ambulance service prior to the ambulance arriving at the pursuer's house. Nor was it clear in what respect reliance had been placed on the statement that an ambulance was on its way.

[39] In concluding his submissions, Mr Ferguson reiterated the reasons why it was argued on behalf of the first defenders that the third element of the Caparo test was not met. It was stressed that the resources available to the ambulance service are finite and limited. If the pursuer's claim in respect of Period 1 was to be successful, it could lead to similar claims, which might be costly to investigate and defend, resulting in funds being diverted away from what the ambulance service should be doing.

Submissions on behalf of pursuer by Miss Caldwell, QC

[40] Miss Caldwell adopted what had been said by Mrs Gilmore. She stressed that the pursuer's case in relation to Period 1 was one directed against an employee for having failed to follow their employers' instructions on a routine matter, the dispatch of an ambulance to uplift a patient who fell to be categorised as a red emergency. The pursuer offered to prove that the operating procedure in force required the deployment of an RRU and an ambulance to such calls. The case was accordingly no different from an action based on professional negligence where a person professing special skill had fallen below the standard to be expected of the ordinarily competent professional professing that particular skill. That was the situation in the present case. The failure founded upon by the pursuer did not involve the exercise of a discretion as to how to implement the first defenders' statutory duties. Nor was the case about how the first defenders' resources should be used. The pursuer averred the defenders' employee owed a common law duty of care to Nikki, a duty which was not excluded by the statutory provisions under which the first defenders were constituted and operated.

[41] Miss Caldwell re-affirmed that the question whether a duty of care was owed to Nikki fell to be determined by the Caparo test, which she recognised was a composite test involving all three elements. It had been foreseeable that Nikki's life was in imminent danger and the first defenders' employee had classified her as such. A relationship of proximity had arisen when the 999 call was answered in the way it was, with the pursuer's son being reassured that an ambulance was on its way and advice being given as to how to treat Nikki in the meantime. All of this was sufficient to give rise to a relationship of sufficient proximity. The pursuer and her son had relied on the assurance that an ambulance was coming (cf Mitchell v Glasgow City Council, para 29, per Lord Hope of Craighead). The first defenders' employee was in the same position as the nurse in Barnett v Chelsea and Kensington Hospital Management Committee
[1969] 1 Q.B. 428 (a case which had been cited to the Court of Appeal in Kent v Griffiths).

[42] In relation to the third element of the Caparo test, the only additional submission that Miss Caldwell made related to the first defenders' reliance on the speech of Lord Keith in Hill v Chief Constable of West Yorkshire, page 63, where he identified a number of factors which bore on the issue of whether it would just, fair and reasonable in that case to impose a duty of care. She drew attention to the comments of Lord Hamilton in Gibson v Orr 1999 SC 420, page 436, in support of the proposition that there was no justification for lifting one or two of the factors relied upon by Lord Keith and, if they happened to apply in another situation, using them as a basis for holding it would not be fair, just and reasonable to impose a duty of care.

[43] Miss Caldwell submitted the class of persons to whom a duty of care of the nature sought to found upon would be due would be those whose lives were imminently threatened. Other persons, whose lives were not threatened, would be coded differently by the EMDC staff.

[44] More generally in relation to the first defenders' criticism of the decision of the Court of Appeal in Kent v Griffiths, Miss Caldwell reminded the court that Lord Woolf had drawn a clear distinction between the ambulance service and the police, fire and coastguard services (para 45). I was invited to do the same, for the reasons which Lord Woolf gave. Miss Caldwell also resisted the criticism of Lord Woolf's use of the term "irrational" in para 43. She argued that Lord Woolf use of that term had not been in an administrative law context. Rather the term had been used in the context of it being important to have regard to facts of the case, there being no factual dispute that an ambulance had been available to be dispatched to the claimant. In such circumstances what Lord Woolf had clearly meant was that it would have been irrational in the operational sense (or perverse as he described it in para 47) not to have made the ambulance available for the plaintiff. As Lord Woolf put it "having decided to provide an ambulance an explanation is required to justify a failure to attend with a reasonable time".

[45] In conclusion, Miss Caldwell resisted the contention that all emergency services should be treated the same. She argued it was clear from authorities before the court that in relation to individual emergency services the question whether a duty of care will be held to exist depends on the facts of the case and the task the emergency service is performing (see Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 (police); Gibson v Orr (police); Capital & Counties Plc v Hampshire C.C. (police); and Burnett v Grampian Fire and Rescue Services 2007 SLT 61 (fire brigade). In any event, Lord Woolf's reasoning in para 45 of his judgment in Kent v Griffiths for drawing a distinction between an ambulance service and other emergency services was sound and should be followed.

Discussion

[46] As I indicated at the outset of this opinion, the question I require to address is whether the pursuer has pled a relevant case that Nikki was owed a duty of care by a member of the first defenders' EMDC Staff during Period 1, which began with the making of the first 999 call from the pursuer's house at 13.18 hours on 1 November 2003 and the arrival of one of the first defenders' ambulances at that house at 13.51 hours.

[47] In considering the issues involved, it may be helpful to bear in mind what was said by Lord Steyn in his speech in Gorringe v Calderdale Metropolitan Borough Council, at paras 2-5:

"2. There are, however, a few remarks that I would wish to make about negligence and statutory duties and powers. This is a subject of great complexity and very much an evolving area of the law. No single decision is capable of providing a comprehensive analysis. It is a subject on which an intense focus on the particular facts and on the particular statutory background, seen in the context of the contours of our social welfare state, is necessary. On the one hand the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortunate there is a remedy. On the other hand, there are cases where the courts must recognise on principled grounds the compelling demands of corrective justice or what has been called 'the rule of public policy which has first claim on the loyalty of the law: that wrongs should be remedied': M (A Minor) v Newham London Borough Council and X (Minors) v Bedfordshire County Council [1995] 2 AC 663, per Sir Thomas Bingham MR. Sometimes cases may not obviously fall in one category or the other. Truly difficult cases arise.

3. In recent years four House of Lords decisions have been milestones in the evolution of this branch of the law and have helped to clarify the correct approach, without answering all the questions: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Stovin v Wise [1996] AC 923, Barrett v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619. There are two comments on these decisions which I would make. First, except on a very careful study of these decisions, there is a principled distinction which is not always in the forefront of discussions. It is this: in a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy? In contradistinction in a case framed in negligence, against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy? An assimilation of the two inquiries will sometimes produce wrong results.

4. The second point relates to observations of Lord Hoffmann in his landmark majority judgment in Stovin v Wise, to which Lord Hoffmann has made reference in his opinion. In Stovin v Wise Lord Hoffmann observed, at p 953:

'In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised'.

Since Stovin v Wise these observations have been qualified in Barrett's and Phelps' cases. I say that not because of the context of the actual decisions in those cases - in Barrett's case a council's duty to a child in care and in Phelps's case a duty of care in the educational field. Rather it is demonstrated by the legal analysis which prevailed in those decisions. In Barretti's case Lord Hutton observed, at p 586:

'I further consider that the decision of this House in Stovin v Wise [1996] AC 923 is not an authority which precludes a finding that there was a duty of care in this case, because Stovin v Wise was concerned solely with the omission by a highway authority to perform a statutory power, whereas in the present case the allegation of negligence relates to the manner in which the local authority exercised its statutory duty and powers.

In X (Minors) v Bedfordshire County Council [1995] 2 AC 633k, 736F Lord Browne-Wilkinson said: "For myself, I do not believe that it is either helpful or necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence". I am in agreement with this view and I consider that where a plaintiff claims damages for personal injuries which he alleges have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decisions do not involve issues of policy which the courts are ill-equipped to adjudicate upon, it is preferable for the courts to decide the validity of the plaintiff's claim by applying directly the common law concept of negligence than by applying as a preliminary test the public law concept of Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) to determine if the decision fell outside the ambit of the statutory discretion. I further consider that in each case the court's resolution of the question whether the decision or decisions taken by the defendant in exercise of the statutory discretion are unsuitable for judicial determination will require, as Lord Keith stated in Rowling v Takaro Properties Ltd [1988] AC 473, 501, a careful analysis and weighing of the relevant circumstances'.

Lord Nolan and I expressly agreed with Lord Hutton's analysis. In substance a similar analysis was adopted by the House in Phelps v Hillingdon London Borough Council [2001] 2 AC 619: per Lord Slynn of Hadley, at pp.652H-653F.

5. These qualifications in Stovin v Wise have been widely welcomed by academic lawyers. A notably careful and balanced analysis is that of Professor Paul Craig, Administrative Law, 5^th ed (2003), pp.888-904. He stated, at p.898:

'There are many instances where a public body exercises discretion, but where the choices thus made are suited to judicial resolution. The mere presence of some species of discretion does not entail the conclusion that the matter is thereby non-justiciable. In the United States, it was once argued that the very existence of discretion rendered the decision immune from negligence. As one court scathingly said of such an argument, there can be discretion even in the hammering of a nail. Discretionary judgments made by public bodies, which the courts feel able to assess, should not therefore preclude the existence of negligence liability. This does not mean that the presence of such discretion will be irrelevant to the determination of liability. It will be of relevance in deciding whether there has been a breach of the duty of care. It is for this reason that the decisions in Barrett and Phelps are to be welcomed. Their Lordships recognised that justiciable discretionary choices would be taken into account in deciding whether the defendant had acted in breach of the duty of care. There may also be cases where some allegations of negligence are thought to be non-justiciable, while others may be felt suited to judicial resolution in accordance with the normal rules on breach.'"

[48] A number of important points of guidance can be identified within these paragraphs. Decisions taken in the exercise of a statutory discretion, which do not involve issues of policy, can be justiciable and can give rise to a claim for damages on the ground of negligence. In considering whether those involved in exercising statutory duties and powers are subject to a common law duty of care an intense focus on the facts and the particular statutory background is essential. Amongst the questions to be addressed is whether the statutory framework excludes a private remedy, as opposed to the question of whether an intention to create a private law remedy can be gathered from the provisions of the statutory framework. Thus when an action based on common law duties of care is before the courts, its validity should be determined by applying the common law concept of negligence.

[49] The possibility of a public authority being sued for breach of a common law duty in respect of their actions in pursuance of a statutory power or duty is also recognised by Lord Hoffman's speech in the same case at para 38:

"38. My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. A hospital trust provides medical treatment pursuant to the public law duty in the 1977 Act, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well established since Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430."

[50] The first defenders put forward a number of reasons why the averments they challenge should be excluded from probation as being irrelevant. It is argued that there is, in general, no duty at common law to rescue another and consequently, as a general rule, no liability for pure omission to act in a situation in which an individual may be in need of being rescued.

[51] In my opinion, the case pled against the first defenders rests on a more substantial factual base than merely alleging a failure to act on the part of an employee of the first defenders in the carrying out of a rescue.. Nor do I consider that this action should be viewed as one founded solely on a "pure omission" of the first defenders to exercise their statutory powers or duties, as was the position in Stovin v Wise. Obviously it forms part of the case the pursuer has pled against the first defenders that there was a failure by the member of the EMDC staff, who answered the first 999 call, to allocate an ambulance to attend at the pursuer's house earlier than he did. However that averment has to be considered in the context of all the other averments of fact relating to what happened prior to and during what is being referred to as Period 1. Against the background of the first defenders setting up a system for responding to 999 calls and training their staff to operate that system; during the first 999 call the member of staff in the EMDC took a full history of Nikki from the pursuer's son. He then categorised the call as a red emergency call. He then informed the pursuer's son that an ambulance was on its way; and gave him advice as to how to care for Nikki pending the arrival of the ambulance. And he immediately dispatched a RRU to the pursuer's house. The allegation of negligence is founded on all these facts which the pursuer offers to prove and relates to the manner in which the first defenders' employee acted in exercise of the procedures the first defenders had themselves put in place in order that their statutory duties be carried out by members of their staff. In these circumstances, and bearing in mind the guidance to be found in in paras 4 and 5 of Lord Steyn's speech in Gorringe v Calderdale Metropolitan Borough Council which I have quoted, I do not consider that the averments complained of fall to be excluded from probation, as constituting no more than a failure to act of "pure omission" (cf Smith v Littlewoods Organisation Ltd).

[52] Reference was made by counsel for the first defenders to a number of decisions relating to the activities of other of the emergency services (e.g. Hill v Chief Constable of West Yorkshire; Capital & Counties Plc. v Hampshire County Council, OLL Ltd v Secretary of State for Transport; Brooks v Comr of Police of the Metropolis [2005] 1 WLR 1495; and Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225.) The decisions were cited to illustrate that the emergency services to which those decisions relate, the police, the fire brigade and HM Coastguard, are not under any duty of care to respond to a 999 call to answer a call for help, such as assisting someone who may be in need of rescue. The reports in these cases also illustrate the extent to which these emergency services have different roles to play to that of the first defenders. The statutory frameworks within which they operate are different from that of the first defenders. Furthermore the police forces and first brigade in particular owe duties to the wider public which might be interfered with were they to focus on the interests and welfare of individuals, which the staff of the constituent parts of the National Health Services, including the first defenders, tend to do. In carrying out their respective roles, the individual emergency services require to have regard to different policy and resources considerations. All of that provides an explanation as to why the factual circumstances in which police officers and firemen come under duties to exercise reasonable care to members of the public may be different to those relevant to the position of ambulance men. That is not to say that the statutory framework within which the first defenders operate as an ambulance service, and the policy and resources considerations to which they require to have regard, may not be of relevance to determining whether the EMDC staff of the first defenders were under a duty of care to Nikki during the period between the receipt of the first 999 call and the arrival of the ambulance at the pursuer's house. They may well be. However, having considered the authorities relating to other emergency services to which I was referred, I am not prepared to exclude the averments complained of from probation solely because this action falls to be treated as being a rescue case and there is no common law duty on one individual, whether a member of the emergency services or not, to respond to a 999 call in order to rescue another individual.

[53] The next issue to address is whether the statutory framework under which the first defenders are constituted and within which they operate excludes the possibility of the pursuer having a private law remedy of the nature she seeks. In my opinion, it does not.

[54] The provisions of the 1978 Act and the 1999 Order, do not place any statutory duty on the first defenders to uplift within a particular time-frame, those who require to be taken to hospital. In such circumstances, there is no question of the pursuer being able to found her claim for damages on the basis of a breach of statutory duty on the part of the first defenders. What the pursuer seeks to do to found on negligence on the part of a employee of the first defenders, which occurred in the course of the first defenders carrying out their statutory duties under the 1978 Act and the 1999 Order. The pursuer argues that when one examines that statutory framework there is nothing in the terms of the 1978 Act or the 1999 Order which either expressly or by implication excludes the pursuer from enjoying a private law remedy of the nature she seeks to pursue. I agree. The fact that as a Special Health Board, constituted under section 2(1)(b) of the 1978 Act, the first defenders are liable for wrongful or negligent acts or omissions in the exercise of functions on behalf of the Scottish Ministers in terms of section 2(8) of the 1978 Act, tends to support the conclusion that the statutory framework does not exclude the first defenders from being under common law duties of care whilst performing their statutory powers and duties. Indeed this is conceded by the first defenders, who accept that once the ambulance men arrived at the pursuer's house and took control of the situation they had been under a duty to exercise reasonable care when dealing with Nikki until they have transferred her to hospital, Likewise I understand it to be accepted that following his arrival at the pursuer's house, the RRU employed by the first defenders owed a common duty of care to Nikki.

[55] The pursuer accordingly argues that against the background of the first defenders' statutory powers and duties, a common law duty of care was owed to Nikki. It arose during the first 999 call and was due by the member of the staff, who was involved in responding to the 999 call and despatching the ambulance crew who subsequently uplifted Nikki and transferred her by ambulance to the Southern General Hospital.

[56] In my opinion the questions whether any duty of care existed and the scope of such a duty accordingly fall to be determined in accordance with the tri-partite test, which was succinctly described in the speech of Lord Bridge in Caparo Industries plc v Dickman 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.".

[57] The Caparo test is, of course, now regarded as being part of Scots Law (see Gibson v Orr 1999 SC 420, 431, per Lord Hamilton and Mitchell v Glasgow City Council, [2009] 1AC 874, para 25, per Lord Hope of Craighead). The test thus addresses (a) whether the injury suffered by the pursuer (or on which the pursuer founds) was foreseeable; (b) whether the relationship between the pursuer (or the injured party) and the defender was sufficiently proximate; and (c) whether it would be fair, just and reasonable to impose a duty of care on the defender. Those three criteria are not watertight compartments. They all shade into each other (see Lord Oliver of Aylmerton in Caparo Industries plc v Dickman at page 633 C- D).

[58] The particular duty of care which the pursuer seeks to found on relates to alleged negligence on the part of the member of the EMDC staff in the manner in which the 999 calls were responded to and an ambulance was despatched. In my opinion, it cannot be said that the pursuer will be unable to prove that these were routine operational matters, which fell to carried out in accordance with procedures laid down by the first defenders, including the prioritisation system known as Advanced Medical Priority Despatch System, which the first defenders used. In my opinion an allegation of that nature can be justiciable (see e.g. Miller v Greater Glasgow Health Board, para 41).

[59] I turn now to the three elements of the Caparo test. Having regard to what the pursuer offers to prove as to Nikki's medical history, what was said to the employee of the first defenders' EMDC on 1 November 2003, and the terms of first defenders' operating procedures, it could not be disputed that it would have been reasonably foreseeable to the employee who answered the first 999 call that day, and spoke to the pursuer's son, that any delay in getting an ambulance to the pursuer's house, as soon as reasonably practicable, would give rise to a risk of harm to Nikki's health. During the course of their submissions, counsel for the first defenders did not suggest otherwise.

[60] As far as the second element of the Caparo test is concerned the first defenders argue that there was no proximity. On the other hand, counsel for pursuer submit that the present case was no different from any other case in which a person professing special skills had fallen below the standard to be expected of the ordinarily competent professional possessing those skills in his dealings with another individual. The first defenders' employee had repeatedly indicated that an ambulance was on its way and yet he had failed to dispatch an ambulance immediately, or at the same time as he had dispatched the RRU, contrary to what the first defenders' operating procedures laid down for what had clearly been a red emergency 999 call.

[61] 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. Such a finding could be based on evidence of the member of staff having elicited from Ross, the pursuer's son, detailed information about Nikki's medical history and current medical condition; advised the pursuer's son that an ambulance was on its way provided advice on how Nikki's condition should be managed until the ambulance arrived; and despatched the RRU to look after Nikki;. In my opinion, such actions and what was said by the first defenders' employee were calculated to be relied on by the pursuer and her son, who were with Nikki and were caring for her as she suffered a severe epileptic fit. I would find it virtually impossible to conceive they were not. Had Ross been advised during the first 999 call that no indication could be given as to when an ambulance might be dispatched, it is reasonable to assume that the pursuer would be able to prove that she would have explored other options for getting Nikki to hospital.

[62] In my opinion the routine followed by the first defenders' employee when the first call was answered and the giving of advice and reassurance to Ross amounted to actings which could be viewed as being of an operational nature, as opposed to the taking of discretionary policy decisions on behalf of the first defenders. Seeking it describe what took place in language used by Lord Hoffman in para 38 of his speech in Gorringe v Calderdale Metropolitan Borough Council, those actions could also be viewed as the entering into of a relationship with Ross, on behalf of Nikki, or the acceptance of responsibility for transferring Nikki to hospital as a matter of emergency. Had the advice given to Ross as to how to care for Nikki pending the arrival of the ambulance been seriously mistaken, could it reasonably have been argued on behalf of the first defenders that there had been no relationship of proximity between the employee who gave that advice, at a time when he was working within the National Health Service, and Nikki and that the giver of such advice had been under no duty of care to Nikki in respect of the contents of that advice?

[63] In para 38 of his speech in Gorringe v Calderdale Metropolitan Borough Council, which I have quoted, Lord Hoffman stressed that in that appeal the court was concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. The court was not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. He recognised that in such cases, the fact that a public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a common law duty of care. In my opinion, it cannot be said that the pursuer will be unable to prove that this case falls into the second category of case being referred to by Lord Hoffman. The pursuer does not seek to impose a common law duty of care on the first defenders solely on the basis of the existence of the first defenders broad public law duties as set forth in the 1999 Order. The pursuer founds on what the first defenders' employee did as having given rise to a relationship of proximity. The actions of that employee included his agreeing to supply an ambulance to enable Nikki to be taken to hospital as an emergency. In other words his acceptance of the first 999 call and the actions he took in response to it go to establishing the proximate relationship, than needing to be found upon to prove a voluntary assumption of responsibility on his part. In my opinion, such a finding could be reconciled with the views expressed in Rowley v Secretary of State for Work and Pensions, para 51-54, per Dyson LJ, and X v Hounslow Metropolitan Council, para 60, per Sir Anthony Clarke MR, which were founded upon by the first defenders counsel is seeking to persuade me to hold that Kent v Griffiths was wrongly decided.

[64] In reaching these conclusions in relation to the second element of the Caparo test, I have obviously given full consideration to the decision in Kent v Griffiths. In doing so, I have also had regard to the judgment of Lord Phillips of Worth Matravers MR in Watson v British Boxing Board. As is clear from the paragraphs of the judgment, which I have quoted, Lord Philips' analysis of the judgment of Lord Woolf MR in Kent v Griffiths is that duty of care which Lord Woolf MR held to have existed turned upon the acceptance by the ambulance service of the request to provide an ambulance and thus the acceptance of responsibility for the care of the particular patient. In para 57 of his own judgment, Lord Phillips MR referred to Kent v Griffiths as being one of a number of cases which he had mentioned which supported the proposition that the act of undertaking to cater for the medical needs of a victim of illness or injury will generally carry with it the duty to exercise reasonable care in addressing those needs. When referring to Kent v Griffiths Lord Phillips MR gave no indication that he thought that the case had been wrongly decided. I was invited to take such a view by the first defenders, notwithstanding the absence of any English authority casting doubt on the correctness of the decision. Having carefully re-read Kent v Griffiths in light of the submissions I received, I am not persuaded that it was wrongly decided. It is clear from para 49 of the judgment of Lord Woolf MR that the Court of Appeal was addressing whether Turner J had been correct to hold that the necessary proximity had been established. They held that he had been. Whilst Lord Woolf MR refers to the acceptance of the call having established the duty of care, that was said in the context of his discussing the submission on behalf of the defendants that there had not been a relationship of sufficient proximity between the claimant and the ambulance service (paras 11, 48 and 49). I agree with Miss Caldwell that Lord Woolf's use of the term irrational in para 43 had not been in an administrative law context, but rather in the operational sense as part of the factual background to the case. I do not accept that contention that the Court of Appeal's decision was driven by the facts, rather than by legal authorities. Nor do I find any support for that submission in the discussion of Kent v Griffiths in Watson v British Boxing Board. In a case of this nature a detailed scrutiny of the facts is required.

[65] Mr Ferguson criticised Lord Woolf for having relied on a flawed analogy with the position of doctors and a flawed distinction between the ambulance services and other emergency services (para 45). In my opinion Lord Woolf was perfectly entitled to view the ambulance service as being part of a health service, its core function including transporting patients to and from hospital, and to note that in the provision of health services in the National Health Service the conventional situation was that there was a duty of care. On the basis he posed the question why the position of ambulance staff should be different from that of doctors and nurses? Having compared the services provided by the police and fire services with those provided by an ambulance service, Lord Woolf then observed that it was appropriate to regard the ambulance service as providing services of the nature provided by hospitals and not as providing services equivalent to those rendered by the police of the fire service. In my opinion, it cannot be argued that what Lord Woolf said in any way undermines the decision that the Court of Appeal reached. Accordingly if this action were to proceed to proof, I see no reason why that case should not be followed.

[66] Turning to the third element of the Caparo test, the first defenders advanced a number of reasons why it would not be just fair and reasonable for the court to hold that the first defenders' had been under a duty of care to Nikki before they arrived at the pursuer's house. They submit that any such duty (a) would be owed to a wide and indeterminate class covering anyone who calls 999 or is the subject of a 999 call; (b) would give rise situations of conflict; (c) would encourage other claims, which would in turn deplete the first defenders' resources in dealing with such claims, rather than spending such resources on improving the ambulance service they provide; and (d) would lead to ambulance staff adopting a defensive attitude when indicating when an ambulance would be dispatched, on account of a fear of litigation,

[67] Those arguments are of course resisted, on behalf of the pursuer, whose counsel have stressed that the existence of a duty a care in the present case falls to be determined on the facts that the pursuer is able to prove. They also stress that the averments complained of do not seek to criticise the system and procedures the first defenders put in place for responding to 999 calls. Rather the averments of fault are directed against the first defenders' employee's failure to implement the first defenders' procedures. It is that failure which is said to a constitute a breach of a duty to exercise reasonable care towards Nikki.

[68] Whether a duty of care is owed is a question of law. However there are cases in which the facts may have to be established before such a question 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.

[69] In my opinion, 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, by Lord Hope of Craighead at para. 29, Lord Scott of Foscote at paras. 39-40 and Lord Rodger of Earlsferry at para 63, 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. For these reasons, I am not prepared to grant the motion on behalf of the first defenders. I shall refuse it and allow a proof before answer and reserve all questions of expenses in relation to the procedure roll hearing..

[70] On the contrary, the averments of fault on the part of the member of staff of the EMDC can properly be viewed as a case of negligence by reason of a failure to exercise the reasonable skill and care to be expected of an EMDC employee of ordinary competence.