Case of Kent Ambulance Service Liability - Essay Example

?An Analysis of the Case of Kent Ambulance Service's Liability Overview The following is an analysis of the situation, and this memo is prepared for the ambulance company, Kent Ambulance, and its possible liability for damages regarding Sheila, who suffered brain damage because the ambulance did not arrive on time, and Maxine, who owns a shop that was burglarized because the police car that collided with the ambulance driven by Kent did not arrive on the scene in time. In brief, the driver of the police car, PC Swift, was driving recklessly. Ahmed, the driver of the ambulance, was not. Because of the collision, Sheila suffered brain damage that would not have occurred if the ambulance had arrived at the expected time. While it appears that the collision would break the chain of causation, therefore Kent Ambulance would not be liable, the facts are complicated by the fact that Ahmed had made the decision to arrive 10 minutes late. This was the original negligent act, so the analysis must stem from this. Below is the analysis of the situation, with a conclusion that outlines the probable outcome. Since this action is one that is based upon negligence, the scenario will be analyzed using the elements of negligence – duty, breach, causation and damages. Duty The first element that must be examined in this action, and any other negligence action, is duty. As far as duty goes, there does not need to be privity between the parties – anybody who might be harmed because of the actions of the person causing the negligence is owed a duty, according to Donoghue v. Stevenson.1 This is particularly true when the harm is foreseeable.2 Therefore, if a person is reasonable, and is driving reasonably, then the harm cannot be said to be foreseeable. This would negate a person's duty. Whereas, previously, in English law, there must be some kind of privity between the tortfeasor and the victim, in that the victim and the tortfeasor must have had some kind of prior relationship, the landmark case of Donoghue v. Stevenson3 altered this. In Donoghue v. Stevenson, the plaintiff, Donoghue, became ill after drinking ginger beer which had a slug in it. The justice in Donoghue proclaimed that individuals owed a duty to anybody who might be affected by their actions. Another case, Caparo v. Dickman4 states that the duty of care can be explained threefold - that the harm was reasonably foreseeable, that there was a relationship of proximity between the tortfeasor and the victim, and that it would be fair, reasonable and just to impose liability. So, as in the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd5, the defendants were not held negligent for a fire which broke out on the water, even though they knew that there was oil slipping below the dock onto the water and the defendants could not reasonably foresee that water would ignite. Moreover, proximity is also an issue, because the harm caused must be proximate to the tortfeasor - Palsgraf v. Long Island Railroad Co.,6 is a case where there was not proximate cause between negligence on one end and an unforseeable victim on the other. In that case, the defendant was helping a woman onto a train and this woman had fireworks which exploded. This caused scales to fall on a distant bystander, and the court decided that the distant bystander’s injuries were not proximately caused by the defendant’s actions. On this ground, the client would prevail, because he acted reasonably in his driving, therefore, there was not a duty to Sheila, as the injury was not foreseeable. On the other hand, since he left 10 minutes late,he might have had a duty if there was an issue to where her brain injuries would have occurred with a ten minute delay. Breach Breach is the next element that needs to be looked at. Again, foreseeability is the key to a breach of a duty. The injury that occurs must be foreseeable.7 If the injury that occurred was not foreseeable, then there would not be a breach of duty.8 Again, this would rest upon whether or not the person was acting reasonably. On the same analysis as above, if Sheila would have had brain damage with a ten minute delay, there would be a breach of a duty. If she would not have had brain damage with a ten minute delay, there was no breach, as Kent was driving reasonably. Causation Causation is the next part of the analysis. One of the tests is the “but for” test – which means that would the harm have happened but for the person's negligence.9 Furthermore, if the act of the third party is not foreseeable, then this will possibly break the chain of causation.10 Moreover, if the third party was negligent, then this is likely to break the chain of causation.11 Therefore, it is likely that the chain of causation would be broken by the negligence of the police officer whom caused the collision – the police officer was the one who was driving recklessly, speeding at 60 MPH in an area where the speed limit was only 30 MPH, without the siren blaring. Moreover, if either of the negligent acts that occurred would be deemed over 50% responsible for a person's injuries, then this is the act that would be the cause of her injury.12 However, the Bennington Castings court held that if there is more than one cause of an injury, that the claimant must show that either cause contributed materially to the injury, not that either cause was the sole cause of the injury. This was affirmed by McGhee v. National Coal Board.13 On the one hand, if Sheila would have suffered brain damage if the ambulance was ten minutes late, then Kent would be the cause of her injury. If not, then Kent is not the cause of the injury. Damages Sheila suffered damages, in that she suffered brain damage and a loss of business that has stemmed from the brain damages. Therefore, Sheila fulfills this element. Maxine the Shopkeeper What about the fact that the burglars got away with ?6,000? Would the ambulance service be liable for this as well? The short answer to this is no – the burglars, and the shop-owner, were not foreseeable plaintiffs for the ambulance company.14 Since the victim was foreseeable to the police, then the police would be liable, possibly, for the loss during the burglary. The ambulance driver, however, would not be. Overseas Tankship Ltd. v. Morts Dock and Engineering Co. Ltd., 15established the rule regarding remoteness in the torts context. Overseas concerned the plaintiffs, whose ship was docked in Sydney Harbor in 1951, and whose crew allowed furnace oil to leak from the ship, which floated to an area where other ships were being repaired. The defendants, knowing that the oil was there, continued to use welders in vicinity of the oil, which ignited the oil and caused damage to plaintiff's ship. The defendant's argued that they should not be held liable for the resulting damages, as they could not foresee that oil would ignite on water. The Privy Council agreed, holding that a party can only be held liable for damage which was reasonably foreseeable, and it was not reasonably foreseeable that oil would ignite on water. 16 In Re Polemis,17 is another case, which was replaced by the case above. In this case, a defendant is liable for all damages that result from his negligence, foreseeable or not. In the case of In Re Polemis, the defendant's employees were loading cargo into a ship. Due to an employee's negligence, a plank fell into the hold of the ship. The plank caused a spark, which ignited some benzene stored in the hold, causing an explosion that sunk the ship.18 The Polemis court found that, even though the fire was not foreseeable, the defendant was still liable for the damages caused by the fire, as it was a direct result of his actions.19 However, this case is no longer used, and the modern rule is that a defendant is only liable for injuries which are foreseeable. Therefore, as Maxine was unforeseeable plaintiff, Kent would not be liable for her damages. Conclusion Ahmed was driving reasonably when the collision occurred, therefore Ahmed was not negligent in that he did not cause the collision. However, Ahmed was negligent, in that he made the decision to be ten minutes late to the scene of the train collision. This is really where the case will turn – if it can be shown that Sheila would have suffered brain damage even if the ambulance was 10 minutes late, then Ahmed probably would be liable, as would the Kent Ambulance Service, which would be liable because of the doctrine of vicarious liability – employers are considered negligent for the acts of their employees.20 However, if it can be shown that Sheila would have recovered if the ambulance was only 10 minutes late, then the Kent Ambulance Service might not be negligent. The collision was an intervening act, in that it was caused by the negligence of the driver of the police vehicle. Moreover, the collision was not foreseeable, or, at least, was not the foreseeable result of Ahmed's original negligent act – it was not foreseeable that Ahmed would be in a collision, just because he left 10 minutes late, because Ahmed was not driving recklessly. If his negligent act was driving recklessly, then this would be one thing – the collision would be foreseeable, and that would mean that Ahmed would be the proximate cause of Sheila's injuries. But reckless driving was not the original negligent act, leaving ten minutes late was, and Ahmed was driving very carefully. This would mean that, possibly, the collision would break the causation chain, and the ambulance company would not be liable for Sheila's injuries, but only if it can be shown that the injuries would not have been sustained if the ambulance was ten minutes late. As for Maxine, the shopkeeper, she and her shop were not foreseeable victims for Ahmed, so Ahmed should not be liable to her at all. The police force, and PC Swift, might be liable to her, but Ahmed and the ambulance service would not be under any circumstance. References Barnett v. Kensington & Chelsea NHS Trust [1968] 1 All ER 1068 Bennington Castings Ltd. v. Wardlaw [1956] AC 613. Bolton v. Stone [1951] 1 All ER 1078. Capraro v. Dickman [1990] UKHL 2 Donaghue v. Stevenson [1932] UKHL 100 Home Office v. Dorset Yacht Co. Ltd. [1970] AC 1004. Lamb v. Camden LBC [1981] 2 All ER 408. Lister v. Hensley Hall Ltd. [2002] 1 AC 215 McGhee v. National Coal Board [1972] 3 All ER 1008 Overseas Tankship v. Morts Dock &Engineering Co. Ltd. [1961] UKPC 1 Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928). Read More