Public Law

Just because an Act imposes a statutory duty doesn’t mean that a breach of the Act will automatically allow a claim for damages. The Supreme Court’s rejection of a claim based on breach of the Electricity Act 1989 last year is a prime example. You can read more about that case here.

The latest Scottish case to grapple with the tricky relationship between statutory obligations and common law duties is Margaret Aitken v Scottish Ambulance Service & Anr a decision of Lord Mackay of Drumadoon in the Court of Session. There’s no new law here but it is a reminder of the complexities involved in cases of this type.

The factual circumstances are very different from those dealt with by the Supreme Court. The claim by Ms Aitken arises out of the death of her 15 year old daughter following a severe epileptic fit. She alleges that a 999 call handler employed by Scottish Ambulance Service (SAS) failed to despatch an ambulance in breach of internal procedures. An ambulance was not sent until requested by a paramedic and the resultant delay in treatment was critical.

SAS challenged the legal basis of the claim. They argued that, since there is normally no common law duty to rescue members of the public, a failure to act (such as failing to send an ambulance) is not ordinarily actionable. Any challenge to the performance of a statutory function is by way of judicial review not a private law claim for damages and an omission in exercising a statutory function could only result in common law liability in special circumstances. Special circumstances required a positive act by the public authority, a special relationship with the injured individual (proximity) and a voluntary assumption of responsibility in respect of that individual none of which existed in this case. In any event, it was simply not fair, just or reasonable to impose a duty of care on SAS in this situation since the same duty would then apply to all 999 calls and would complicate operational decisions about call priority.

After reviewing the House of Lords decision in Gorringe v Calderdale Metropolitan Borough Council Lord Mackay identified certain points of principle:

  • Decisions taken in the exercise of a statutory discretion which do not involve policy issues can give rise to a claim in negligence
  • The court must decide whether the statute excludes a private law remedy. It does not have to ask whether there was an intention to create such a remedy
  • The mere fact that an authority acted under a statutory power does not prevent a common law duty of care arising
  • Whether a common law duty actually exists depends on an “intense” scrutiny of the facts and the statutory background in each case

In Lord Mackay’s view the allegations made by Ms Aitken went beyond mere omission. Looked at in context the claim concerned the manner in which the SAS employee acted in exercise of the procedures which SAS themselves had put in place.

He considered that the statutory framework applicable to SAS may be of relevance in determining whether a duty of care existed prior to the arrival of the ambulance but the relevant Act and Regulations do not themselves exclude a negligence claim. The question of whether that duty actually existed and what the scope of that duty was in this particular case, will depend on an application of the tripartite test set out by the House of Lords in Caparo Industries plc v Dickman. In particular, is there the necessary special relationship or proximity? Is it fair just or reasonable to impose a duty in the circumstances? Those are questions which Lord Mackay considered could only be answered once all the evidence had been heard.

So no definitive answers yet for either Ms Aitken or the Scottish Ambulance Service.

There’s no news as to whether an appeal is likely but from a purely legal perspective the judgment gives us all plenty to think (and argue) about.

Niall McLean

Associate at Brodies LLP
Niall is a member of Brodies' market leading Government, Regulation and Competition practice. Niall gives both public and private sector clients advice in a broad range of areas including: corporate crime and investigations, governance, defamation and reputation management, public law and statutory interpretation.
Niall McLean