Lady Justice Hale:
- The Sussex Ambulance Service appeal against the order of His Honour Judge Cox, made on 5 July 2001 in the Lambeth County Court, giving judgment against them for some £34,000 for injuries sustained by one of their ambulance technicians when carrying a patient downstairs. It raises the difficulty of reconciling the ambulance service's duties towards a patient with their duties towards their employees.
Facts
- On 2 November 1996, the claimant and a colleague, Mr Criddle, were sent to collect a patient from a cottage in Seaford and take him to hospital. The call had been assessed as urgent, requiring a response within an hour, but not an emergency. The patient was an elderly man in his late sixties or early seventies. His weight was variously estimated at 10 to 12 or 13 to 14 stone. He was upstairs in bed. The cottage stairway was narrow and steep and had a bend in it
- The judge held that the crew were working as a team with neither in charge. They decided to take the patient downstairs in a carry chair. This is an upright chair with a carrying rail at the back, wheels on the back legs, and carrying handles on the front legs. The claimant carried the back of the chair and was thus walking forwards down the stairs bearing most of the weight. Mr Criddle carried the front facing the patient and was thus walking backwards down the stairs. There was a dispute as to what, if anything, happened on the stairs. The judge accepted the claimant’s evidence that Mr Criddle experienced a sudden pain as they came down the stairs and loosened his grip on the front of the chair, leaving the claimant to bear its whole weight for a brief moment. The claimant suffered jarring injuries to his thumb, back and knees.
- There were two reports from Mr Hayne, a jointly instructed ergonomic expert. He pointed out that 'it has to be recognised that there is often a conflict between the care of the patient and the safety of the crews'. The problem of carrying patients up and down stairs, particularly if the patient was heavy and the stairs were narrow or steep, had still not been satisfactorily resolved. The equipment manufacturers had not yet found an ideal solution. The task undertaken here was clearly hazardous. The claimant would have taken about 56% of the load. If the patient weighed 12 stone, his share would have been 104 lbs if held close to his chest. Going downstairs, leaning forward as he descended, it would be the equivalent of 156 lbs at least. If there was a sudden increase in the load, the injury was not at all surprising. It was clearly foreseeable.
- The difficulty was that there was no other suitable piece of equipment available for this particular task. In his supplementary report, Mr Hayne concluded that ‘short of removing an upstairs window and getting the Fire Brigade to lift the patient out on a crane, the only practical option available was to have used a carry chair.’ He suggested that the best way to do it was to take the chair down one step at a time, resting the rear wheels on each step and giving the claimant a break if needed. At the trial it emerged that this would not have been possible because the treads were too narrow. It was also agreed that there would not have been room on the stairs for another crew to help bear the weight.
- The possibility of using the fire brigade, or any other third party, to effect the task was not mentioned in the pleadings. It only assumed prominence during the trial as it became clear that there was no other alternative to using the chair in the way that they had done. Mr Criddle's evidence was that he had considered it briefly but not mentioned it to the claimant. He might have done if the patient was too big to get out of the door or grossly overweight. In his witness statement he said that 'We only really do this as a last resort as it distresses patients and there is no way of avoiding some element of manual handling even in that situation.' The oral evidence of Mr Layhe, divisional commander at the time, was that the option had always been available to the service. He was not aware that crews were discouraged from thinking of it. But he only knew of about three occasions when it had been done, when the patient was too big to be taken downstairs. Such jobs had to be planned very carefully and took 'an awfully long time to execute'. He doubted whether he would have made the decision to call the fire brigade from what he knew of the circumstances in this case. There was no other evidence, for example, of what the attitude of the patient or his wife would have been to this suggestion, or of the likely response of the fire brigade if they had been called.
The Manual Handling Directive and Regulations
- The pleadings alleged breach of the Manual Handling Operations Regulations 1992, regs 4(1)(a) and 4(1)(b), the Provision and Use of Work Equipment Regulations 1992, regs 5(1) and 5(3), and negligence. So far as material, regulation 4 of the Manual Handling Operations Regulations provides:
"(1) Each employer shall -
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured -
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, . . .
(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, . . "
- At trial, an amendment was permitted to allege breach of the Manual Handling Directive 1990, 90/269/EEC, Art 3:
“1. The employer shall take appropriate organisational measures, or shall use the appropriate means, in particular mechanical equipment, in order to avoid the need for manual handling of loads by workers.
2. Where the need for manual handling of loads by workers cannot be avoided, the employer shall take the appropriate organisational measures, use the appropriate means or provide workers with such means in order to reduce the risk involved in the manual handling of such loads, . . ..”
'Manual handling of loads' is defined in Article 2 to mean:
“. . . any transporting or supporting of a load, by one or more workers, including lifting, putting down, pushing, pulling, carrying or moving of a load, which, by reason of its characteristics or unfavourable ergonomic conditions, involves a risk particularly of back injury to workers.”
- The Service accepted that, as they are an emanation of the State, the Directive was directly effective to give the claimant rights against them. They did not and do not accept that there is any material difference between the Directive and the Manual Handling Operations Regulations.
The decision under appeal
- The judge held that there had been a breach of Article 3.2 of the Directive. Calling the fire brigade should have been given more serious consideration than it was. Mr Criddle should have followed up the idea and consulted the supervisor. Training should have emphasised this alternative to the use of the chair when using the chair was a serious hazard. Instead it was regarded as a last resort. The mindset of those administering the service at this time was to discourage it. He concluded that 'the emphasis was so heavily upon the last resort of the ambulance service that there is in that, as well as in the actions of Mr Criddle, a breach of Article 3.2 of the Directive.' Having reached this conclusion the judge did not consider liability either under the Regulations or in negligence.
- The appellant Service challenge the judge's decision under the Directive. The claimant has filed a respondent's notice seeking to uphold the judgment, not only on the proper interpretation and application of the Directive, but also on the grounds (1) that there was also a breach of the Regulations, and (2) that the Service is either vicariously liable for Mr Criddle's negligence in failing to follow up his idea of using the fire brigade or itself negligent in discouraging reference to the fire brigade. He did not pursue a further allegation, raised in the pleadings and skeleton argument but not in the respondent's notice, of a breach of the Provision and Use of Work Equipment Regulations 1992.
Manual Handling
- The appellant challenges the judge’s finding that the ethos of the service was to discourage use of the fire brigade. There is nothing wrong in regarding it as a last resort, provided that it is available when appropriate. The evidence was that this option had always been available and was not discouraged. Crews were trained to consider it. Indeed Mr Criddle did do so but rejected it. Mr Layhe, the supervisor who gave evidence, would have done the same had he been on duty and consulted that day.
- It would have been rejected because it was not appropriate. The judge did not consider whether or not it would have been so. 'Appropriate' must mean something more than a theoretical possibility. It has to be judged against the circumstances of the case. This was not a particularly heavy patient although it was an awkward lift. He needed a response within an hour. Using the fire brigade takes a long time, may distress the patient, and is medically unsuitable for some. There was nothing to suggest that it was even possible, let alone suitable, in this case.
- Hence, it is argued, the claimant has failed to prove that more training or longer consideration would have made any difference. Even if the judge was correct to hold that there had been a breach of the Directive, he completely failed to consider the causal link between any such breach and the injury sustained.
- Against that, it is argued that the judge was right to see this as an institutional matter. Appropriate organisational measures would have involved instructing ambulancemen not to use the carry chair in circumstances where they would be exposed to significant risk and to give active and more positive consideration to calling the fire brigade. It is not enough to show that it crossed someone’s mind or was not discouraged. The whole object of the Directive is to encourage an institutional mindset towards reducing the risk of injury. The Service should have been applying their mind to finding other ways of solving the problem. The judge found a breach of Article 3.2, but it is argued that he should have found a breach of Article 3.1. This particular operation could be split into several component parts - getting the patient out of bed and into the chair; getting him to ground level; and getting him into the ambulance. The Service should have addressed their minds to avoiding the need for the second of these altogether. As they had not done so there was no need for the Judge to consider the specifics of what might have happened if it had.
- The Service agree that the purpose of the Directive is to encourage employers to take a more proactive approach towards reducing the risks to their employees. Article 118a of the EEC Treaty requires the Council to adopt 'minimum requirements for encouraging improvements especially in the working environment to guarantee a better level of protection of the health and safety of workers'. The Manual Handling Directive is an individual directive within the meaning of Council Directive 89/391 on the introduction of measures 'to encourage improvements in the health and safety of workers at work'. It was not the objective of the Directive to make it easier for employees to claim damages from their employers. That it may do so is a collateral consequence of the liability imposed upon employers in English law for breach of statutory duty.
- Manual handling of loads is very broadly defined in Article 2. While Article 3.1 requires employers to make provision to avoid the need for this at all, Article 3.2 accepts that some manual handling operations cannot be avoided. It requires employers to take appropriate steps to reduce the risk involved. It does not require that all risk be eliminated no matter how impracticable it would be to do this. Hence it is argued that the distinction which some have drawn between the Directive and the Regulations is a false one. The Directive does not refer to what is 'reasonably practicable' but that must be what it means by taking 'appropriate measures' or using 'appropriate means' to 'reduce' the risk.
- It is not necessary finally to resolve the debate about whether there is a difference which might be material in another case between the Directive and the Regulations. In this case it is clear that if there is no liability under the Directive there will be no liability under the Regulations. In my view there is no liability under either. There was nothing to suggest that calling the fire brigade would have been an appropriate measure in this case, whether to avoid the need to carry the patient downstairs or to reduce the risk of injury in doing so. The evidence was that it is rarely used because it has to be carefully planned, takes a long time and distresses the patient. This was not an emergency call but it was urgent. We know nothing of what the response either of the patient and his wife or the fire brigade would have been. There may be some situations in which a call for help is indeed the appropriate solution. This will depend upon the magnitude of the problem, the urgency of the case, and the actual or likely response of the patient or his carers and the fire brigade itself. But there was nothing to justify such a finding here. Nor has the claimant shown that giving this possibility more emphasis in training or more anxious consideration on the day would have avoided the claimant's injuries.
Negligence
- In the respondent's notice and skeleton argument, the court is invited to uphold the decision on the alternative ground of negligence. In the respondent's notice, it is argued that the Service was vicariously liable for Mr Criddle's 'error' in failing to follow the idea of calling in the fire brigade, and that the Judge's finding that the mindset of the Service was to discourage reference to the Fire Brigade was an implicit finding of negligence.
- It is fair to say that Mr Goddard, on behalf of the claimant, did not pursue either of these suggestions with great enthusiasm. This was no doubt because of a general perception that if a claimant does not succeed under the Regulations, where the defendant has to prove that he has done what is reasonably practicable, a claimant is unlikely to succeed in establishing that the defendant is in breach of his duty of care. If, however, there was evidence before the judge which might have enabled him to make such a finding, then it might be necessary to remit the case.
- The starting point is that an Ambulance Service owes the same duty of care towards its employees as does any other employer. There is no special rule in English law qualifying the obligations of others towards fire fighters, or presumably police officers, ambulance technicians and others whose occupations in the public service are inherently dangerous: see Ogwu v Taylor [1988] 1 AC 431. Such public servants accept the risks which are inherent in their work, but not the risks which the exercise of reasonable care on the part of those who owe them a duty of care could avoid. An employer owes his employees a duty to take reasonable care to provide safe equipment and a safe system of work, which includes assessing the tasks to be undertaken, training in how to perform those tasks as safely as possible, and supervision in performing them.
- What then is reasonable care in this context? The classic statement of the standard by which an employer is to be judged is that of Swanwick J in Stokes v Guest, Keen Nettlefold (Nuts and Bolts) Ltd [1968] 1 WLR 1776, at p 1783C-F :
“ . . . the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; . . . where there is developing knowledge, he must keep reasonably abreast of it and not be slow to apply it; . . . He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions which can be taken to meet it and the expense and inconvenience they involve.”
However, there is a further dimension which is particularly applicable to the statutory services. As Denning LJ put it in Watt v Hertfordshire County Council [1954] 1 WLR 835 at p 838:
“It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this: you must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk, . . . . I quite agree that fire engines, ambulances and doctors' cars should not shoot past the traffic lights when they show a red light. That is because the risk is too great to warrant the incurring of the danger. It is always a question of balancing the risk against the end.”
- The problem in a case such as this is that the ambulance service owe a duty of care to the members of the public who have called for their help: see Kent v Griffiths and Others [2001] QB 36. This can result in liability for failing to attend to a patient within a reasonable time. The service do not have the option available to a commercial enterprise of refusing to take the job. If a removal firm cannot remove furniture from a house without exposing its employees to unacceptable risk then it can and should refuse to do the job. The ambulance service cannot and should not do that. But that does not mean that they can expose their employees to unacceptable risk. The employers have the same duty to be efficient and up-to-date and careful of their employees' safety as anyone else. It does mean that what is reasonable may have to be judged in the light of the service's duties to the public and the resources available to it to perform those duties: as Colman J put it in Walker v Northumberland County Council [1995] 1 All ER 737, at p :
“The practicability of remedial measures must clearly take into account the resources and facilities at the disposal of the person or body owing the duty of care and the purpose of the activity giving rise to the risk of injury.”
- One returns, therefore, to balancing the various considerations. The risk to the employees in this case was not negligible. It was considerable both in the likelihood of its occurring and in the seriousness of the harm which might be suffered if it did. As Mr Goddard put it, there was a risk of a career-ending injury, which indeed happened here. As Mr Hayne put it, the activity was clearly hazardous. Against that, it was of considerable social utility. The Service did not have a choice but to respond to the patient's needs. Those needs were urgent but not an emergency. The Service had limited resources, not so much in financial but in equipment terms, with which to respond. The problem therefore remains of what could reasonably have been done to respond to those needs without putting the crew at risk. In this case there was no evidence of anything that the employer could have done to prevent the risk and no suggestion other than calling upon a third party to do the job for them. If calling the fire brigade was not appropriate or reasonably practicable for the purpose of the Directive or the Regulations it cannot be lack of reasonable care to fail to do so.
- The question must be whether it was a lack of reasonable care to have failed to discover and provide some alternative equipment for speedy use in this sort of situation. This is a difficult proposition to sustain in the light of Mr Hayne's report. Mr Goddard did put forward the suggestion in the course of argument that the Service could have had its own 'cherry pickers' instead of calling upon the fire brigade. But this is a completely new suggestion for which there is no evidential basis before us. Without such further evidence, in my view the claimant is unable to make out a case in negligence.
- It seems to me entirely possible that in another case, a claimant ambulance operative could establish that the Service had not taken reasonable care to provide suitable equipment to enable their employees to do the job. But in this case that would be to construct a completely new case, quite different from the one which was put before the judge. In my view it would be unfair to remit this case for that purpose.
- Accordingly, I would allow this appeal.
Lord Justice Buxton :
- I gratefully adopt the statement of the facts and history of the case that is set out in my Lady’s judgment. Like her, I would allow this appeal. Since we are differing from the judge, and also because there are some implications of this decision that cause me concern, I venture to add some words of my own.
The Manual Handling Directive
- If the matter had been properly before him, it would have been open to the judge on the evidence as adduced to find, as he did, that
The ethos, the mindset of those who were administering the ambulance service at this time was clearly to discourage resort to the fire brigade….the emphasis on training ought to have been on consideration of alternative methods to using the chair in circumstances where it was clear that the use of the chair presented a serious hazard….I have had no evidence from the Defendants about these matters. They are matters on which it seems to me there is a burden on the Defendants to adduce evidence.
That is because Mr Criddle gave evidence that the fire brigade was regarded as a last resort; and the defendants’ training officer’s evidence gave no sign that use of the fire brigade had been properly assessed.
- But the issue of the use of the fire brigade was not properly before the judge, and it was not fair of him to criticise the nature of the Defendants’ evidence about it, nor to draw assumptions from that evidence. As the judge pointed out, the issue was not raised in the Particulars of Claim, nor was it subsequently pleaded. It only emerged as a discrete issue at the trial itself; and the Defendants simply cannot be blamed for not anticipating that development with better evidence. It was indeed mentioned in Mr Criddle’s statement, and in the expert report of Mr Hayne, but in both cases, and in particular by Mr Hayne, in distinctly dismissive terms:
Short of removing an upstairs window and getting the fire service to lift the patient up on a crane, the only practical option available was to have used a carry chair.
Far from recommending that course, and even further from putting the Defendants on warning that they must produce evidence about it, Mr Hayne is plainly saying that the only alternative to a carry chair is so extreme that the carry chair, objectionable though it was, was unavoidable.
- What the evidence would have been, had the Defendants been put on proper notice, not only in respect of their practice but also in terms of further expert evidence, can only be a matter of speculation. I would resolve the point in the context of this case by saying that it was not open the judge to enter upon that line of enquiry.
- But, in any event, the judge’s findings did not suffice to establish a breach of the Regulations. The obligation is to take appropriate organisational measures or use appropriate Directive means to reduce the risk involved in manual handling. But the judge’s criticism of the defendants was, and was no more than, that they had not given sufficiently serious consideration to the use of the fire brigade. He did not say what the result of that consideration should have been, or hold that the fire brigade should in fact have been used. On a purely verbal level, which I accept is not a conclusive factor when construing Regulations of this nature, it is difficult to see that a process of consideration is properly described as either a measure or as means; and much less as a measure or means to reduce the risk. But, quite apart from that, the measures or means have to be “appropriate”. Amongst other implications of the use of that word is that the measures or means will be efficacious in reducing the risk. It is quite impossible to say whether or not a process of consideration, the outcome of which is undetermined, would have that effect.
- I therefore respectfully agree with my Lady that the judge was wrong to find that there had been a breach of the Directive.
Negligence
- There are profound difficulties about this part of the case. Negligence was pleaded, and the evidence adduced before trial must be taken to be addressed to that issue as well as to the issue arising under the Directive. The Defence denied negligence pari passu with the denial of breach of statutory duty, on grounds that the claimant was properly trained; provided with proper equipment; and undertaking a task in an appropriate manner. These were orthodox, indeed largely formalised, exchanges within the parameters of the present law of negligence. At the trial this part of the case was lost sight of in favour of the claim under the Regulations. Since the claimant succeeded on that claim before the judge, no ruling was given on negligence.
- But the negligence claim was not formally abandoned at the trial, and a respondent’s notice sought to resurrect it, though as my Lady has pointed out in §19 of her judgment almost entirely with reference to the “fire brigade” complaint. Before us, the matter was argued more broadly than would have been apparent from the pleadings. However, even allowing that indulgence, I respectfully agree with my Lady that, if we were to apply the law as it at present stands to the facts as they can best be assumed in Mr King’s favour, his claim will fail; and there is therefore no basis for remission of the case for further investigation of the negligence claim. I will be forgiven if I explain why I do not find that a self-evidently satisfactory conclusion.
- It is necessary to say something first about the structure of the law of negligence. If the case were to be looked at in terms of the three-fold test first formulated by Lord Bridge in Caparo v Dickman [1990] 2 AC 605 at p 617H, it would seem that, for the reasons indicated in §§ 37-39 below, the claimant fulfilled the requirement of foreseeability of damage; and, as an employee of the defendants, the requirement of “proximity” to them. And there is at least some doubt, as expressed in this court in Perrett v Collins [1999] PNLR 77, as to whether, in a case where foreseeable physical injury has been inflicted, the third stage, of considering whether it would be “fair just and reasonable” to impose liability, arises at all. But the defendants relied before us not on considerations that in a series of cases involving public bodies have been deployed under the third limb of Caparo, but rather on earlier authority that goes not to the issue of duty (which is the issue addressed by the jurisprudence of Caparo), but to the issue of breach. That authority holds that in determining whether the defendant’s conduct has been “reasonable”, as the law of negligence understands that term, the court must balance the risk against the utility of the activity in which the risk arose: see generally Clerk & Lindsell on Torts (18th edition), §§ 7-171 to 7-185. A case conspicuously underlining that point, and to which I shall have to return, is Watt v Hertfordshire County Council [1954] 1 WLR 835.
- First, however, none of these difficulties about the ambit of the law of negligence arise if physical damage to the claimant was not reasonably foreseeable. The view of the joint expert, Mr Hayne, was that the task of carrying a load downstairs by two men using the equipment in fact provided was “clearly hazardous”:
I consider that there was a foreseeable risk of injury related to the movement of this patient downstairs, by two ambulancemen, using a standard chair.
- While he did not say so in terms, the hazard that Mr Hayne appeared to have in view was a strain to the back of one of the men through the demands of the task itself, or through one or other of them slipping or otherwise putting down the load, as it was alleged Mr Criddle had done. That in the event the claimant injured his hand in seeking to rectify the difficulty thus caused does not take his injury outside the “kind of damage” against which his employers were obliged to protect him: see Jolley v Sutton LBC [2000] 1 WLR 1082, especially per Lord Hoffmann at p 1091D.
- It is, therefore, difficult to see how the defendants could escape a finding that the injury was foreseeable in the sense in which that term is used in the law of negligence, and I approach the remainder of this judgment on that assumption.
- The first point is that the evidence, including the evidence of Mr Hayne, was that within the available equipment there was no way of doing the job other than that practised by the ambulance service. I discount here, as I do in relation to the claim under the Regulations, the “fire brigade” option: both for the reasons already given, and because it is simply irrational to think that a operation as complicated and invasive as taking out a window could be a reasonable course for any significant number of patients. In the normal case insufficiency of means will not save a defendant. As Denning LJ put it in Christmas v General Cleaning Co [1952] 1 KB 141 at p 149, though in relation to the expense of safeguards rather than their non-availability:
If employers employ men on this dangerous work for their own profit, they must take proper steps to protect them, even if they are expensive. If they cannot afford to provide adequate safeguards, then they should not ask them to do it at all.
So, to revert again to the striking example used by my Lady in §23 of her judgment, if the defendants had been furniture removers, employed to take simply the bed downstairs, and found that they could not do it without putting their men at risk, their duty would have been to refuse the job.
- But the ambulance service does not enjoy the luxury of being able to refuse the job. That is not just because of human decency or their public duty, but also because they are at least potentially liable in negligence to the patient if they fail to act on a call: see the decision of this court in Kent v Griffiths and ors [2001] QB 36. How does that public obligation protect them from liability for physical injury to their men?
- The ground on which it was said that the ambulance authority could protect itself was the specific balance between the meritorious ends that were to be served and the risk involved in serving them that was required to be struck, in particular, by Watt v Hertfordshire County Council. It is necessary to examine that case with some care.
- Barry J at first instance, [1954] 1 WLR at p211, relied on the broad fact that firemen agree to encounter risks much greater than those of usual employment, and his judgment was approved in full by Singleton LJ in this court. If that was intended to create a general immunity for the fire service, it would be impossible to reconcile the case with Ogwo v Taylor, cited by my Lady in §21 of her judgment. But it seems clear from the other judgments in this court, and indeed from the judgment of Singleton LJ, that there were two, more subtle, strands in the decision. First, regard must be had to the importance of the end to be served, citing the observations of Asquith LJ in Daborn v Bath Tramways [1946] 2 All ER 333 at p 336. Second, the normal work of the fire brigade involved action to counter emergencies of the kind that arose in that case. The court considered that sufficient provision had been made by way of equipment against such a contingency: see in particular per Morris LJ [1954] 1 WLR at p839. So the urgency of the case outweighed other considerations. As Denning LJ put it, [1954] 1 WLR at p838:
If this accident had occurred in a commercial enterprise without any emergency there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk.
- I agree that our case was not one of emergency in the extreme sense deployed in Watt, but it was a case where something had to be done, and to be done with reasonable despatch. There was no alternative to going ahead immediately with the job apart from recourse to the fire brigade, a step that I have rejected as inappropriate. Within the context of the available equipment there could be no criticism of the service for not doing what it could have done, because no other equipment was on the market. The case is in that respect stronger than Watt, where suitable equipment was available and in the possession of each brigade but, it was held reasonably, not provided to every station.
- It should also be emphasised that the problem facing the service in our case is not one of lack of resources. If that were the defence, it would be vulnerable to the criticism deployed by, for instance, Pill J in Knight v Home Office [1990] 3 All ER 237, and further explained in Clerk & Lindsell, § 7-182. Rather, the problem is the impossibility of performing the public duty in a way that reasonably ensures the safety of the men. That, in my view, brings the case well within the jurisprudence of Watt.
- It is not open to this court, and certainly not open to it on the evidence in this case, to go behind Watt. The balance required by Watt, and for the reasons stated in that case, therefore has to come down against liability. But in another case, possibly in a higher tribunal, that conclusion might call for reassessment.
- First, in the middle of the passage from his judgment in Watt cited by my Lady in §22 of her judgment, Denning LJ said:
“The saving of life or limb justifies taking considerable risk, and I am glad to say that there have never been wanting in this country men of courage ready to take those risks, notably in the fire service”
But why should those men of courage, who are the persons who run the risk on behalf of the public, suffer if the risk eventuates? If, as this court held in Kent v Griffiths, the public interest obliges the service to respond to public need, why should it not be equally in the public interest to compensate those who are foreseeably injured in the course of meeting that public need? If the furniture mover referred to above decided to go on with the job, for whatever reason, he would do so at his peril if workers were injured. So also, it would seem, would a charity that, however high-mindedly, took on a task that it was not compelled to perform: see Voli v Inglewood Shire Council (1963) 110 CLR 74, discussed in Clerk &Lindsell § 7-179. I therefore do not see any reason why the employees of a public body that decides to go on with the job, albeit for meritorious public reasons rather than for private commercial gain, should be any less well protected. The case would seem to raise considerations of the distributive justice that was strongly emphasised as important by Lord Steyn and Lord Hoffman in Frost v Chief Constable [1999] 2 AC 455, and reverted to by Lord Steyn in Macfarlane v Tayside Health Board [2000] 2 AC 59 at p 82. In Frost it was held to be unjust, and something that the ordinary man would regard as offensive, if policemen as employees were to recover for nervous shock suffered at the Hillsborough disaster when Alcock v Chief Constable [1992] 1 AC 310 had held that relatives of those killled could not. It is difficult to see why it is not the other side of that same coin to say that, if employees required to run risks to advance private interests can recover if doing their employer’s bidding leads to injury, so employees required to run risks to advance public interests should by the same token be able to recover.
- Second, it is far from clear that the jurisprudence of Watt, even if the case is understood as suggested in §16 above, can be reconciled with at least the spirit of Ogwo v Taylor. The “fireman’s rule” rejected in that case had held that a public employee cannot complain if, the other requirements of negligence being satisfied, he is injured in meeting the very hazards that he is employed to deal with: see per Lord Bridge in Ogwo v Taylor [1988] 1 AC 431 at pp 438-439. It is true that the rule, and its repudiation, are directed at the liability of third parties for injuries caused in fighting negligently started fires: but it is noticeable that Ogwo was seen as relevant to the claim by policemen against their employer in Frost v Chief Constable by Lord Goff of Chievely [1999] 2 AC at p 471C, and by Lord Hoffmann at p 511D. I have accepted that the acts required of the ambulancemen in our case fell within the type of circumstance envisaged in Watt. But they were nonetheless something that came within the daily experience of an ambulanceman: as the need for sudden attendance at a fire or road accident fell within, if not the daily experience, then at least the constant expectation, of a fireman. Watt may therefore need reconsideration in the light of Ogwo v Taylor, the two strands of authority having proceeded on lines parallel to each other.
- Third, I have already pointed out that Watt avoids the assessment of the public interest considerations that is common under the third limb of Caparo by treating the balance that it strikes as an issue of breach rather than of duty. Here again, strands of authority addressing essentially similar problems, but which have developed independently of each other, may need reconsideration in a suitable case.
- But this is not a suitable case, because nothing was pleaded that might form a foundation for the exploration suggested in the immediately preceding paragraphs of this judgment. To explore these issues further would involve the pursuit of a completely new case: just as, as my Lady points out in §26 of her judgment, investigation of the reasonableness of the ambulance service’s provision of equipment would be to construct a completely new case. I accordingly see no alternative to allowing this appeal.
The President:
- I agree that this appeal should be allowed.
