A significant recent judgment in the senior Scottish courts (A
J Allan (Blairnlye) Ltd v Strathclyde Fire Board [2016] CSIH 3) involves
interesting obiter remarks regarding the development of the duty of care and
the appropriate analysis of negligence in the courts.
Broadly, the court considers the perennial balancing task in
the law of delict/tort; how indeterminate liability might be limited, for sound
public policy reasons, in claims of negligence. Interestingly, Lord Drummond
Young indicates a move towards promoting the role of the Good Samaritan in
Scots law.
Issues of liability under statute and common law,
distinctions in the position of different emergency services (the ambulance
service, in particular, being distinguishable from the other emergency
services) and exceptions to the general rule that limits liability for pure
omissions are considered amongst other things. But, perhaps, the most significant
aspect of the case is that the Scottish courts seem to be nodding with approval
towards the approach of the French and German legal codes where, unlike current
domestic law, there is a broader legal duty to assist somebody ‘in peril’ where
there is no risk to the rescuer.
Allan concerned scope for liability resulting from fire damage to
farm buildings in Dunbartonshire alleged to have resulted from negligence on
the part of the fire brigade. The three judges in Allan held unanimously that
the fire brigade should not be held liable unless they had negligently exacerbated the fire situation they were seeking to control - they had not. Lady Paton noted the issues that had influenced her judgment, for example: "The first matter is the change and development since the 1940s in the courts' approach to the nature and scope of any liability on the part of public authorities to individuals who make private claims in respect of the authorities' alleged negligence in the performance of their public duties" and "Secondly, general policy considerations must be taken into account".
The judgment draws Scots law back towards the approach taken
in the English courts in cases such as Michael v Chief Constable of South Wales
Police [2015] 2 WLR 343 after a series of cases in the Scottish courts where the law had become somewhat fragmented.
The majority of Lord Drummond Young's obiter remarks are extracted here:
“In a number of English cases it has been said that no
distinction can be drawn between injury to the person and damage to
property. Logically that is no doubt
correct; the principle that there is
generally no liability for a pure omission, if used literally and without
modification, must apply to any form of injury or damage caused by a third
party or the forces of nature.
Nevertheless this result troubles me.
In my opinion a distinction might properly be drawn between injury to
the person and damage to property. In
part this reflects the fact that the latter is usually covered by insurance
whereas the former is not. More
important, however, is the fact that the life, health and safety of the
individual possess a greater moral significance than the security and integrity
of any property; a normal person will
attach greater importance to his safety than to his property. The parable of the good Samaritan would lose
nearly all of its force if the man who went down from Jerusalem to Jericho had
merely dropped his purse, which the Samaritan saw and returned to him.
[96] Consequently
I hope that in an appropriate case the law might develop in such a way that, at
least in clear cases where action can be taken without danger to the rescuer,
the officers of a public service such as the fire service or police are obliged
to take action to rescue persons in danger.
I realize that this must require a further exception to the general rule
that there is no liability for a pure omission.
I think, however, that policy considerations can be made to prevail over
a mechanical application of the rule. I
note that such a result has been achieved in French law by article 223-6 al 2
of the Code pénale, which makes it an offence deliberately to fail to help a
person in peril where there is no risk to oneself or to others in doing
so. While this provision of itself
imposes criminal liability, breach of the duty gives rise to civil
liability. German law is similar; section 323c of the Strafgesetzbuch (the
German criminal code) provides that a person who fails to provide help in cases
of disaster or imminent danger or distress, although such help is necessary and
reasonable under the circumstances and does not involve substantial danger for
the rescuer, is guilty of an offence. As
in France, breach of the criminal provision gives rise to civil liability in
delict. If our law of delict were to
develop in that direction, there would obviously have to be an imminent danger
to a person and rescue would have to be possible without serious risk to the
rescuer, but a rule could be developed around those limitations. Justice in my opinion requires nothing less.
[97] Any such
development would mean that policy considerations prevailed over the literal
and mechanical application of established law.
This leads on to the second observation that I would like to make: the importance of policy in this area. The main development in the law of negligence
over the last 25 years or so has perhaps been a recognition that the notion of
proximity is limited in its usefulness, and that the question of whether there
is sufficient to give rise to a duty of care of a given scope must depend
ultimately on policy considerations.
Thus an evaluative exercise is required, which takes account both of
proximity, in the narrower sense of physical or causal connection, and policy
considerations that are specific to the type of case under consideration. The result is that, as Lord Bridge stated in
Caparo (at page 618), 'the law has now moved in the direction of attaching
greater significance to the more traditional categorization of distinct and
recognizable situations as guides to the existence, the scope and the limits of
the varied duties of care which the law imposes'. Those varying situations, perhaps many in
number, will determine the policy considerations that should govern the
existence and scope of any particular duty of care. Such development may be incremental and by
analogy with established categories, as suggested by Brennan J in Sutherland
Shire Council v Heyman (1985) 60 ALR 1, at 43-44. Thus the past may guide the future. The critical point is that rules derived from
existing case law should not be applied mechanically to new situations: instead it should be asked whether, as a
matter of policy directed to the specific situation under consideration, a new
analysis is required. The result would
be a law of negligence that was less unified than in the past but which dealt
more fairly with individual cases. That
would in my opinion be a desirable development.”
The Good Samaritan in Scots Law
A significant recent judgment in the senior Scottish courts (A J Allan (Blairnlye) Ltd v Strathclyde Fire Board [2016] CSIH 3) involves interesting obiter remarks regarding the development of the duty of care and the appropriate analysis of negligence in the courts.
Broadly, the court considers the perennial balancing task in the law of delict/tort; how indeterminate liability might be limited, for sound public policy reasons, in claims of negligence. Interestingly, Lord Drummond Young indicates a move towards promoting the role of the Good Samaritan in Scots law.
Issues of liability under statute and common law, distinctions in the position of different emergency services (the ambulance service, in particular, being distinguishable from the other emergency services) and exceptions to the general rule that limits liability for pure omissions are considered amongst other things. But, perhaps, the most significant aspect of the case is that the Scottish courts seem to be nodding with approval towards the approach of the French and German legal codes where, unlike current domestic law, there is a broader legal duty to assist somebody ‘in peril’ where there is no risk to the rescuer.
Allan concerned scope for liability resulting from fire damage to farm buildings in Dunbartonshire alleged to have resulted from negligence on the part of the fire brigade. The three judges in Allan held unanimously that the fire brigade should not be held liable unless they had negligently exacerbated the fire situation they were seeking to control - they had not. Lady Paton noted the issues that had influenced her judgment, for example: "The first matter is the change and development since the 1940s in the courts' approach to the nature and scope of any liability on the part of public authorities to individuals who make private claims in respect of the authorities' alleged negligence in the performance of their public duties" and "Secondly, general policy considerations must be taken into account".
The judgment draws Scots law back towards the approach taken in the English courts in cases such as Michael v Chief Constable of South Wales Police [2015] 2 WLR 343 after a series of cases in the Scottish courts where the law had become somewhat fragmented.
The majority of Lord Drummond Young's obiter remarks are extracted here:
“In a number of English cases it has been said that no distinction can be drawn between injury to the person and damage to property. Logically that is no doubt correct; the principle that there is generally no liability for a pure omission, if used literally and without modification, must apply to any form of injury or damage caused by a third party or the forces of nature. Nevertheless this result troubles me. In my opinion a distinction might properly be drawn between injury to the person and damage to property. In part this reflects the fact that the latter is usually covered by insurance whereas the former is not. More important, however, is the fact that the life, health and safety of the individual possess a greater moral significance than the security and integrity of any property; a normal person will attach greater importance to his safety than to his property. The parable of the good Samaritan would lose nearly all of its force if the man who went down from Jerusalem to Jericho had merely dropped his purse, which the Samaritan saw and returned to him.
[96] Consequently I hope that in an appropriate case the law might develop in such a way that, at least in clear cases where action can be taken without danger to the rescuer, the officers of a public service such as the fire service or police are obliged to take action to rescue persons in danger. I realize that this must require a further exception to the general rule that there is no liability for a pure omission. I think, however, that policy considerations can be made to prevail over a mechanical application of the rule. I note that such a result has been achieved in French law by article 223-6 al 2 of the Code pénale, which makes it an offence deliberately to fail to help a person in peril where there is no risk to oneself or to others in doing so. While this provision of itself imposes criminal liability, breach of the duty gives rise to civil liability. German law is similar; section 323c of the Strafgesetzbuch (the German criminal code) provides that a person who fails to provide help in cases of disaster or imminent danger or distress, although such help is necessary and reasonable under the circumstances and does not involve substantial danger for the rescuer, is guilty of an offence. As in France, breach of the criminal provision gives rise to civil liability in delict. If our law of delict were to develop in that direction, there would obviously have to be an imminent danger to a person and rescue would have to be possible without serious risk to the rescuer, but a rule could be developed around those limitations. Justice in my opinion requires nothing less.
[97] Any such development would mean that policy considerations prevailed over the literal and mechanical application of established law. This leads on to the second observation that I would like to make: the importance of policy in this area. The main development in the law of negligence over the last 25 years or so has perhaps been a recognition that the notion of proximity is limited in its usefulness, and that the question of whether there is sufficient to give rise to a duty of care of a given scope must depend ultimately on policy considerations. Thus an evaluative exercise is required, which takes account both of proximity, in the narrower sense of physical or causal connection, and policy considerations that are specific to the type of case under consideration. The result is that, as Lord Bridge stated in Caparo (at page 618), 'the law has now moved in the direction of attaching greater significance to the more traditional categorization of distinct and recognizable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes'. Those varying situations, perhaps many in number, will determine the policy considerations that should govern the existence and scope of any particular duty of care. Such development may be incremental and by analogy with established categories, as suggested by Brennan J in Sutherland Shire Council v Heyman (1985) 60 ALR 1, at 43-44. Thus the past may guide the future. The critical point is that rules derived from existing case law should not be applied mechanically to new situations: instead it should be asked whether, as a matter of policy directed to the specific situation under consideration, a new analysis is required. The result would be a law of negligence that was less unified than in the past but which dealt more fairly with individual cases. That would in my opinion be a desirable development.”