Emergency services liable where responsibility is assumed and detrimental reliance has taken place
18 July 2018
Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB) (16 July 2018) – read judgment
This was an appeal on a preliminary issue from the decision of David Berkeley QC, sitting as the Recorder below. The question was whether the defendant chief constable owed a duty of care to the claimant’s partner, who had committed suicide.
The Recorder found that the defendant, either by his officers, employees or agents, failed expeditiously and/or adequately to deal with, and/or respond to, the information conveyed to them concerning the deceased in a 999 call made by the deceased’s mother.
King J upheld the Recorder’s findings and dismissed the appeal.
Background facts
At 6:44pm on 29 January 2012 the deceased’s mother put in a 999 call to the Greater Manchester Police, expressing concern about the welfare of her daughter. She was unable to drive to her daughter’s home herself because of ill health. She made it clear that her daughter, who was on her own with her youngest child, might take an overdose of the anti-depressant medication she was on. The transcript of the call reveals that the mother told the call handler that the claimant had been dissuading the deceased from risking her life:
‘he said he was battling with her to stop her taking an overdose…’
(Of course this is not evidence but hearsay, a point picked up by the police in this appeal.) The call handler, of whom no criticism was made, graded the call as Grade 1 (Emergency Attendance). Shortly afterwards the call was downgraded to Grade 2 (‘priority Attendance’). Officers attended the deceased’s home address at 10.19pm but there was no response, the house was in darkness and they did not gain access. When at 8.17 am on Monday 30thof January (2012) two officers attended the house, they were admitted by one of the children and found the deceased dead in the living room. She was 37 years of age and the mother of two infant boys. The medical cause of death was an overdose of her Amitriptyline medication.
The Recorder conceptualised the issue thus:
‘in the context of this claim, either a duty of care arose as a consequence of the 999 call (which is the pleaded case in the Particulars of Claim) or no duty of care ever arose’.
He clarified that merely by answering a 999 call the relevant service does not assume responsibility. Even by attending upon a call the relevant service does not assume responsibility. This assumption is an essential element for a negligence claim to be made out.
Assumption / acceptance of responsibility as the source of the duty of care
Liability in this context is predicated upon a duty of care arising because of the acceptance by the police of responsibility for the welfare of the deceased. In this instance acceptance was as a result of ‘taking the mother’s call; creating an incident log, informing the mother that they would deal with the incident and agreeing to dispatch officers to the house’.
For assumption of responsibility to give rise to liability, two elements are needed:
- assurance to the deceased’s mother, coupled with
- a ‘detrimental reliance by the mother.
This is an established test for emergency call handler liability in the USA and Canada, and is currently under consideration by the Supreme Court following the hearing in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 involving an A & E receptionist (7 July 2018, judgment not yet available). It is further refined as a “but for” test. In other words, the court has to be convinced, in this instance, that the mother would, but for the the assurance, have taken other steps that she would have deemed necessary, including calling for an ambulance herself, and/or soliciting the assistance of others; and/or made her own way to the house. Since there was no suggestion that the mother took any of those steps, and given that from the recording of the 999 conversation she appeared to have been reassured and indeed expressed her gratitude to the police, the Recorder had “no hesitation in finding that there was sufficient reliance to impose a duty”
Proximity
In the County Court the defendant maintained that no duty of care could arise in the present case, because any assurance was given to the mother and not to the deceased and any reliance was that of the mother and not that of the deceased. The Recorder did not accept this submission.
I am satisfied that there was a sufficient degree of proximity between the Chief Constable and the deceased which created the relationship upon which the duty could arise.
Taking account of all the circumstances of the case and considering precedent cases and representations from both sides, the Recorder concluded that by the time the 999 call had finished, a duty of care was owed by the defendant to the deceased. The Recorder considered this case on all fours with Kent v Griffiths [2001] 1QB 36 – where the ambulance service was held liable for the injury suffered by an asthmatic who had been assured that they were on their way, and who therefore missed the opportunity of being taken to hospital by his doctor. Kent was “instructive” as the relevant assurances were given to the doctor and not to the claimant and the reliance was similarly that of the doctor and not necessarily the claimant and yet a duty of care was imposed.
Although the police handler did not state any specific time as to when the police would arrive, the clear message being given to the mother was twofold, namely that help for her daughter was going to be dispatched to her house promptly and quickly and secondly that she should leave with the police any need for the daughter to get to hospital. These were broadly in line with the assurances given in Kent and broadly to like effect.
The QB was satisfied that there was a direct relationship between the deceased and the police so as to give rise to a duty. Not only the communication between the mother and the police, but evidence that the police assumed responsibility and the reliance on the assurances given was sufficient to bring this case within the ‘assumption of responsibility’ exception,
notwithstanding the assurances were given to her mother rather than to the deceased herself and notwithstanding the reliance was by the mother rather than the deceased.
…In both cases the communication was between the emergency services and a third party who was concerned for the welfare of the vulnerable person who was likely to come to harm if urgent action was not taken. In both cases (on my findings) assurances were given to that third party and detrimental reliance occurred”
A further complication arises. If the deceased had not been in the care or custody of the police, whence arises duty on the part of the police to prevent self-harm or to deal with its consequences? And if there is such a duty, does it not interfere with the autonomy of the individual concerned, since suicide is no longer a crime?
Kent partly answered this problem. Even on the slim evidence available, it was clear that the mother and the deceased had a mutual interest in getting the emergency services to the house, the mother having reported that her daughter had contacted social services to get help on previous occasions.
On the Recorder’s findings, the [police] had accepted a responsibility for the deceased’s welfare having been told in effect that she represented a risk to her own safety due to her mental state. (The mother had told them that her daughter was ‘at the end of her tether’).
The police had accepted responsibility for her in circumstances where the intervention of another agency may have prevented her death. In these circumstances it was not necessary for the appellant to have detained the deceased – for example under the Mental Health Act – for a duty of care to arise. The actions and words of the call handler were sufficient to affix the appellant with responsibility for the deceased’s safety notwithstanding the threat was from herself – and this was particularly so where the mother was being told that she need do no more.
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