Kent v Griffiths

The claimant, Mrs Kent, was a pregnant woman suffering from asthma who experienced a serious episode of breathing difficulties at home. Her general practitioner, who was present with her, called 999 to request an ambulance. The ambulance service received and accepted the emergency call, thereby undertaking to dispatch a vehicle to attend upon the claimant.

Despite the ambulance station being situated only a short distance from the claimant's location, the ambulance took approximately forty minutes to arrive. No satisfactory or credible explanation was offered by the ambulance service for this significant delay. There was no evidence of competing emergency calls, resource allocation difficulties, or any other operational justification for the failure to attend promptly.

As a direct result of the delay in the ambulance's arrival, the claimant suffered a respiratory arrest. The consequences for her were catastrophic: she sustained permanent brain damage and suffered a miscarriage, losing her unborn child. Had the ambulance arrived within a reasonable time, the medical evidence supported the conclusion that these outcomes would not have occurred.

The claimant brought proceedings in negligence against the London Ambulance Service, contending that once the emergency call had been accepted, a duty of care arose requiring the service to attend within a reasonable time, and that the unexplained forty-minute delay constituted a breach of that duty causing her loss. The defendant sought to resist the claim on the basis that, as a public emergency service, it owed no duty of care in the circumstances analogous to those recognised in existing authority concerning the police and fire brigades.

At first instance, the claim succeeded. The defendant appealed to the Court of Appeal, which heard the case and delivered judgment in 2000, with the reported citation appearing as Kent v Griffiths [2001] QB 36. The Master of the Rolls, Lord Woolf, delivered the leading judgment, with which the other members of the court agreed.

The primary issue before the Court of Appeal was whether, as a matter of law, an ambulance service owes a duty of care in negligence to a specific individual who has made a 999 emergency call and whose call has been accepted by the service. The question was whether the acceptance of such a call was sufficient to create the proximity and assumption of responsibility necessary to ground a duty of care, or whether the ambulance service, like the police and fire services, should be treated as immune from liability in negligence for failures to respond adequately.

A subsidiary but related issue was whether, even if a duty of care could in principle arise, the broader policy considerations that have protected other emergency services from negligence liability — including the risk of defensive practices and the distortion of resource allocation decisions — applied with equal force to the ambulance service, so as to negate what would otherwise be a duty recognised on conventional Caparo principles.

The court was also required to consider the significance of the unexplained nature of the delay, and specifically whether the absence of any competing operational demands or resource justification was relevant to the existence and breach of any duty, or whether such considerations were relevant only to the policy analysis at a higher level of abstraction.

Lord Woolf MR began by acknowledging the general principle, well-established in English tort law, that a public authority or emergency service does not ordinarily owe a duty of care to members of the public merely by virtue of its public functions. This principle finds its clearest expression in the context of the police in Hill v Chief Constable of West Yorkshire [1989] AC 53, where the House of Lords held that the police owed no duty of care to potential victims of crime in the general conduct of a criminal investigation. The policy rationale in Hill centred on the undesirability of defensive policing, the difficulty of identifying a sufficiently proximate class of potential claimants, and the chilling effect that wide liability might have upon the effective discharge of public functions.

The court then considered Capital and Counties plc v Hampshire County Council [1997] QB 1004, a significant Court of Appeal authority dealing with fire brigade liability. In that case, the court held that fire brigades do not, as a general rule, owe a duty of care to property owners merely by attending a fire. The reasoning was that, unlike a doctor who undertakes to treat a patient, a fire brigade does not by its mere attendance assume responsibility for the safety of the property, nor does it place the occupier in a worse position than they would have been in had the brigade not attended at all. However, an exception was recognised on the facts of one of the conjoined appeals in Capital and Counties, where a fire officer had positively ordered the building's sprinkler system to be turned off, thereby making the position worse than it would otherwise have been. That represented a positive act of negligent intervention, not a mere failure to act.

The court also considered Alexandrou v Oxford [1993] 4 All ER 328, in which the police were held not to owe a duty of care to a shopkeeper whose burglar alarm had been connected to the police station and who suffered loss when the police failed to respond adequately to the alarm signal. The court in that case reasoned that the police's general duty to the public at large was insufficient to generate the specific proximity required to found a duty to any individual member of that public. Lord Woolf distinguished Alexandrou on the basis that the relationship between the claimant and the defendant in that case did not involve the kind of individualised assumption of responsibility present on the facts of Kent.

Central to Lord Woolf's reasoning was the identification of a critical distinction between the ambulance service and other emergency services such as the police or fire brigade. The ambulance service, he held, is properly to be understood as an integral part of the National Health Service. Its function is not to protect the public at large from harm inflicted by third parties, or to prevent damage to property, but to provide direct medical care and assistance to identified individuals in medical need. In this respect, the ambulance service stands in a position analogous to a hospital or a medical practitioner, and not to the police or fire service.

A duty of care arises, Lord Woolf held, once the ambulance service accepts an emergency call. That acceptance constitutes an assumption of responsibility towards the specific individual who has made the call. From the moment of acceptance, there is an identified patient, an identified need, and a service that has undertaken to respond to that need. The three-stage test in Caparo Industries plc v Dickman [1990] 2 AC 605 — foreseeability, proximity, and fairness — is satisfied. It is plainly foreseeable that failure to attend promptly may cause harm to a person in a medical emergency; the acceptance of the call creates the necessary proximity between the parties; and it is fair, just and reasonable to impose a duty in such circumstances.

The court emphasised that, on the facts of Kent, the position of the claimant had been affected by the acceptance of the call in a way that materially distinguished her situation from that of a person who had never made a call at all. Once the call was accepted, the claimant and her doctor had reasonable grounds to believe that the ambulance was on its way. They may well have forgone other potential means of conveyance to hospital or other emergency assistance precisely because they were entitled to rely on the fact that the service had committed itself to attending. This reliance made the claimant's position, as a practical matter, different from what it would have been had no call been made.

Lord Woolf then turned to the policy arguments that had been advanced by the defendant in favour of denying liability. The defendant contended that imposing a duty of care upon the ambulance service would have undesirable systemic consequences: that it would encourage defensive practices, divert resources from operational matters to litigation concerns, and undermine the ability of the service to make difficult real-time decisions about the deployment of limited vehicles and personnel across competing demands. These were the same policy arguments that had succeeded in Hill and had been recognised as significant in the fire brigade cases.

The court rejected these policy arguments on the specific facts of the case. Lord Woolf acknowledged, in terms that carry the character of obiter remarks, that the position might well be different in circumstances where there were competing emergency calls and the service had to allocate scarce resources between multiple patients simultaneously requiring assistance. In such a case, the service might need to make difficult operational judgments about prioritisation, and it would be inappropriate for the courts to second-guess those decisions in negligence proceedings. Similarly, where a delay is attributable to genuine resource constraints, different considerations might apply.

However, the present case involved none of these complications. The ambulance service had offered no explanation whatsoever for the forty-minute delay. There was no suggestion of competing calls, no evidence of resource constraints, and no operational reason of any kind for the failure to attend promptly. In those circumstances, the policy arguments that might otherwise justify denying liability simply did not arise. The defendant could not shelter behind generalised concerns about operational difficulties when it had failed entirely to explain why it had not attended a short-distance emergency within a reasonable time.

The court further noted that the concern about defensive practices, which had weighed heavily in Hill, was not apposite in the same way to ambulance services. The police, it had been argued in Hill, might be induced by the fear of litigation to conduct investigations in an unduly cautious or defensive manner, to the detriment of their primary public protective function. No analogous concern applied to an ambulance service. Requiring an ambulance to attend promptly once it has accepted a call does not induce any form of defensive behaviour that would prejudice the service's overall function; rather, it is entirely consistent with and indeed reinforces the proper discharge of that function.

In relation to breach of duty, the court held that the forty-minute delay without explanation was plainly in breach of the duty of care that had been established. The standard applicable was that of the reasonably competent ambulance service. No credible justification had been advanced for the delay, and the inference that it represented a failure to meet an acceptable standard of response was irresistible on the evidence. Causation was similarly established: the medical evidence demonstrated that prompt attendance would, on the balance of probabilities, have averted the respiratory arrest and its catastrophic sequelae.

The Court of Appeal held that the London Ambulance Service owed a duty of care in negligence to the claimant. That duty arose at the moment the emergency call was accepted by the service, which constituted an assumption of responsibility towards an identified individual in medical need. The duty required the service to attend within a reasonable time. The ambulance service was properly to be treated as part of the health service, analogous to a hospital or medical practitioner, rather than as an emergency service of the type considered in Hill v Chief Constable of West Yorkshire [1989] AC 53 or Capital and Counties plc v Hampshire County Council [1997] QB 1004.

On the facts, the forty-minute delay in circumstances where the ambulance station was in close proximity and no explanation had been provided constituted a breach of that duty. The breach caused the claimant's respiratory arrest, resulting in permanent brain damage and miscarriage. The appeal against the first instance judgment in the claimant's favour was accordingly dismissed.

The court left open the question of whether or to what extent the ambulance service might be able to rely upon competing operational demands or resource allocation decisions as a defence in future cases. The holding was confined to circumstances where an accepted call is followed by an unexplained delay, and no competing emergencies or resource pressures are advanced by way of justification.

Kent v Griffiths represents an important and carefully circumscribed development in the law of negligence as applied to public emergency services. Prior to this decision, the general trajectory of the case law — from Hill through Capital and Counties — had been to treat emergency services as broadly immune from negligence liability for failures to respond, on grounds of policy and the absence of sufficient proximity. Kent introduces a meaningful distinction based upon the nature and function of the service in question, holding that the ambulance service's identity as a medical care provider brings it within a different normative framework from other emergency services.

The decision is significant for its application of the assumption of responsibility principle to a public service context. By identifying the acceptance of a 999 call as the trigger for a specific duty towards an identified individual, the court applies a mode of reasoning more familiar from private law relationships — such as those considered in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 — to the novel context of emergency medical services. This analytical move allows the court to distinguish the generalised public duty cases and to focus on the specific relational quality of the interaction between the service and the individual claimant.

The case has been widely cited in academic commentary as an illustration of the limits of the Hill immunity and of the proposition that the policy reasons for that immunity are context-specific rather than universal. It demonstrates that courts are willing to examine with some care whether the particular policy concerns said to justify immunity actually apply in the circumstances before them, rather than extending immunity by analogy to any public body that can characterise itself as an emergency service. The decision thus has methodological significance beyond its specific subject matter.