Assumption of responsibility: emergency call handlers

Articles | Tue 9th Apr, 2019

Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC; 1746 (QB)

[2019] P.I.Q.R. P1

This is a confusingly written judgment which I am firmly of the opinion is wrong. It is, however, interesting for how it is wrong.

The basis of the claim is the unfortunate suicide of a woman whose mother had made an earlier 999 call to Greater Manchester Police to seek help. The call was made at 6.44pm, and the key part of the transcript is as follows:

– call handler: “right I’m going to get someone to go down to the address”
– mother: “so I think she needs to go to hospital”
– call handler: “it’s OK, it’s OK don’t worry…. I shall get someone down there to go and check on everything”
– mother: “she needs to get to hospital before she hurts herself”
– call handler: “all right, you leave that with us”

Police attended the deceased’s address at 10.19pm but there was no response. They attended again the following morning at 8.17am, and were let in by one of the deceased’s children. The deceased was found dead, having overdosed.

A claim was brought by her partner. A preliminary issue was ordered, namely: ‘whether a duty of care was owed by the Defendant to the Deceased’. In October 2016 Mr Recorder Berkley QC gave judgment for the Claimant on this preliminary issue, finding there to have been an assumption of responsibility by the Defendant for the deceased’s welfare. There had been both a specific assurance and detrimental reliance:

1. specific assurance- “that the police would respond to what was an emergency forthwith dispatching officers to the house as a priority step and that if required a hospital transfer would be arranged by the police rather than the mother” (my emphasis)
2. detrimental reliance – “mother would, but for the assurance, have taken other steps….. Including calling for an ambulance herself, and/or soliciting the assistance of others; and/or made her own way to the house”

The Recorder relied heavily on Kent v Griffiths [2001] 1QB 36, in which an assumption of responsibility was identified. In that case a call handler informed a doctor, who was attending somebody who had suffered an asthma attack, that an ambulance would arrive “within minutes”.

The Defendant appealed on 3 grounds, namely that the Recorder erred in:

1. Finding assurance and reliance;
2. Marginalising the Hedley Byrne principles;
3. Finding there was no relationship of conflict.

The appeal was heard by King J who gave judgment on the 16^th July 2018, dismissing all 3 grounds.

Ground 1

The Recorder was entitled to make these factual findings. The assurances were broadly in line with those given in Kent v Griffiths.

Ground 2

The Defendant’s submission was that the Recorder was wrong in placing reliance on White v Jones, which addresses a different type of case. It was also wrong, submitted the Defendant, to find that it was not necessary to satisfy the principles from Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. These require direct communication between the postulated duty-holder and the individual, or communication with a third party which the duty-holder knows (actual or constructive) will be passed onto them, and then detrimental reliance by that individual. They were not satisfied in the index case.

King J disagreed, finding that the authorities do not establish an inflexible approach to how the extended Hedley Byrne principle can be applied. There was sufficient proximity in this case, where the mother was obviously calling on behalf of her daughter who was in no position to make the call herself.

Ground 3

The Defendant submitted that the Recorder failed to distinguish between a duty to protect a person from an external threat, and one to protect a person from their own actions. A duty to protect somebody from self-harm can be explained only by the existence of a prior relationship of control such as custodian/prisoner as in the case of Reeves v Commissioner of Police for the Metropolis [2001] EWCA Civ 1249; [2002] 1 W.L.R.

King J rejected the submission that Reeves is so prescriptive, reasoning as follows: “…. in such 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”. Admirably succinct reasoning, perhaps, but not altogether persuasive.

Discussion

First and foremost I struggle to see how the case falls within Kent v Griffiths. In my opinion there is a crucial difference between the two; the specificity of the assurance. Kent involved a specific explicit timeframe of a few minutes, whereas in this case the call handler made no mention of time. There was not even the use of “quickly” or “as soon as possible”. The Recorder read into the transcript the word “forthwith”, which to my mind was impermissible. He seems to have done so predominantly because of the tense and fraught nature of the conversation. Though if this logic held true, surely it would apply in respect of every assurance given by an emergency call handler; when are emergency calls anything but tense and fraught? That being the case, every assurance given by emergency services becomes subject to a requirement to deliver the promised action (e.g. attendance) “forthwith” in lieu of which potential liability flows.

This case instead falls properly within Michael v Chief Constable of South Wales and Gwent Police [2015] UKSC 2; [2015] A.C. 1732, in which the call handler assured the caller that the call would be passed onto the police who would want to phone her back. No assumption of responsibility was identified, Lord Toulson reasoning: “She gave no promise how quickly they would respond… The case is very different from Kent v Griffiths … where the call handler gave misleading assurances that an ambulance would be arriving shortly”.

It’s also concerning that the principles governing assumption of responsibility are being treated so liberally. One wonders where the relaxed approach to legal principle will lead. In practical terms, I worry that this decision will cause emergency services to instruct their call handlers to refrain from giving anything resembling an assurance. Not only will they be nervous about giving timeframes for attendance by emergency services staff, but even giving assurances about whether such staff will attend at all. Comparison can be drawn with the decision of the Supreme Court in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50; [2018] 3 W.L.R. 1153 to the effect that hospitals owe a duty to people attending A&E in respect of the information about waiting times provided by non-clinical reception staff. The concern expressed by Jackson and Sales LJJ in the Court of Appeal was that the proposed duty would lead to reception staff being instructed to say nothing to patients, causing the withdrawal of information which is helpful to the public. Concern about withdrawal of societally useful information is apposite in the index case also.

Both the Recorder and King J in Sherratt also failed to meaningfully grapple with the correctly identified distinction between self-harm and threats from third parties. The requirement of a pre-existing relationship such as custodian/prisoner provides a sensible limit on liability, recognising the fundamentally different nature of these two types of threat. The explanation offered by King J is, in my opinion and with respect, lacking.

This decision fits neatly, albeit worryingly, into a bigger picture of expanding public liability. For further analysis of this topic please see the recent 1 Chancery Lane public liability briefing I co-authored with Saleem Khalid.