Secretary of State for Transport - Case Study Example

House of Lords Drake V. Secretary of for Transport. My Lords, The primary issue in these appeals, brought by leave of the Court of Appeal, is agreed to be : Whether the Coastguards were under a legally enforceable duty to take care of the plaintiff. Facts of the case are that the plaintiff had summoned the services of the rescue operations of the coastguards while stuck in rough weathers. He was rescued by the coastguards but due to delay in rescue operations, he suffered hypothermia, frostbite and shock. His leg was also amputated because of frostbite. The plaintiff has attributed his sufferings and amputation of legs to the negligence of coastguard due to lack of appropriate, fast and rapid action taken by them. The High Court of Justiceheard the case of Mr. Derek dismissed them. The Court of Appeal the decisions and reasons for the same were upheld. The court did not disturb the findings of fact as the same were admitted. The importance of the decision lies in the court's statement of principle may be stated as the coastguards were under no enforceable private law duty of care to respond to an emergency call and under no duty of care. Although the issue is expressed in this general way, the specific right in question in these appeals, is whether an action for breach of legal duty to take care while performing duties by coastguard can be brought against the Secretary who is responsible for Coastguard. Before dealing with the facts of the case, it is of vital import to deliberate upon the law as to what is the duty to take care. Professor Sir Percy Winfield (1933) (1) defined a tort as 'the breach of a duty primarily fixed by the law, where the duty is one towards persons generally and its breach is redressible by an action for damages.' This necessarily implies that to succeed in an action the plaintiff must prove that (i) the defendant was under a legal duty to take reasonable care towards the plaintiff to avoid the damage complained of ; (ii) that the defendant has committed a breach of that duty; and (iii) that duet to the breach of duty plaintiff suffered damage. In the absence of such legal duty negligence has no legal consequence. In Brett M.R. in Heaven v. Pender (2) it was established that under certain circumstances, one man may owe a duty to another, even though there is no privity of contract between them. Dicta of Brett M.R. in Heaven v. Pender as considered in 1932 by Lord Atkins J. in Donoghue v. Stevenson (3) laid down a very important principle of determining a duty. He held that "The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour The answer seems 1. Winfield on Tort, 8th Ed. (1967) 2. (1883) 11 Q.B.D. 509; see also, Thomas v. Quartermaine, (1887) Q.B.D.685, Le Leiver v. Gould (1893) 1 Q.B. 491; Mogul Steamship Co. v. Mcgregor, Gow and Co.Ltd. (1889) 28 ABD 598; Mcrone v. Riding (1938) 1 E.R. 157; Heley v. London Electricity Board (1965) A.C. 778; Phillips v. William Whitely (1938) 1 A.E.R. 566 3. [1932] A.C. 562 to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. This appears to me to be the doctrine of Heaven v. Pender (11 Q. B. D. 503, 509.)" Application of this principle is the backbone of "duty to take care" and known as neighborhood principle. Lord Wilberforce in Anns v. Merton London Borough Council (4) sought to broaden the neighbourhood principle and succinctly observed Through the trilogy of cases in this House - Donoghue v. Stevenson Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd and Dorset Yacht Co. Ltd. v. Home Office(5), the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise: see Dorset Yacht case per Lord Reid at p. 1027 4. (1978) A .C. 728, 751-752 5. [1970] A.C. 1004 In recent times, in 1990, the House of Lords revised Lord Atkin's "neighbour" principle to encompass public policy concerns articulated in Caparo Industries v. Dickman(6). The three-stage "Caparo" test requires: foreseeability of damage; a relationship characterised by the law as one of proximity or neighbourhood; and that the situation should be one in which the court considers it would be fair, just and reasonable that the law should impose a duty of given scope on one party for the benefit of the other. In the present context the question to be considered is whether the Coastguard were under a legal duty to take care or not. Conventionally the Governmental functions are soveriegn in nature and the state cannot be sued for private actions. This emanates from the maxim, " the king can do no wrong". The Crown Proceedings Act, 1947 which changed the old law also preserves this rule that no proceedigns can be brought in tort agains the Crown in a private capacity. Some insights can be drawn from the Human Rights Act, 1998 which seeks to broaden the purview of rights of people vis a vis Government. Under Section 6 of the Act, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Under Section 7 of the Act, a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may bring proceedings against the authority under this Act in the appropriate court or tribunal or b) rely on the Convention right or rights concerned in any legal proceedings only if but only if he is (or would be) a victim of the unlawful act. The most important section of the Human Rights Act 1998 is section 6(1) which states "it is unlawful for a public authority to act in a way which is incompatible with a convention right." This section ensures that all public authorities are bound by the European Convention. The Act purposely does not give a list. Some bodies may be considered public. These would include ministers, government departments, local government departments, judges, the courts, the police and related criminal justice agencies. According to White Paper, Rights Brought Home: The Human Rights Bill, brought 6. ([1990] 1 All ER 568). by the U K. Government, a public authority, for the purposes of s.6(3)(b) of the Human Rights Act 1998 should include legal persons 'exercising functions which would otherwise be exercised by government'. It refers to those governmental functions which are in the domain of the government, and by a necessary corollary also to those functions which would be carried out by government if no independent authority existed to carry them out. S.6(5) also refers to the nature of the act carried out it is clear that s.6(3)(b) will not, by itself, enable proceedings to be brought against a given legal person if the nature of the act complained of is private care. R v Aston University Senate, ex p. Roffey (7) or the British Boxing Board of Control (McInnes v Onslow-Fane) (8), courts have applied public law principles if equity so demands R v Insurance Ombudsman Bureau, ex p. Aegon Life Assurance Ltd (9) it was held that the defendant was not amenable to judicial review the matter being a contractual privity. This was despite the fact that both the Insurance Ombudsman and LAUTRO are recognised in the Financial Services Act 1986. In R v Panel on Takeovers and Mergers, ex p. Datafin (10), it was held that the courts might intervene, in principle, if a given decision had public consequences, notwithstanding the fact that the body in question was a non-statutory, self-regulating association In Minors v. Bedfordshire CC(11), Lord Browne-Wilkinson held that , "Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any 7. [1968] 2 QB 538 8. [1978] 1 WLR 1520 9. [1995] LRLR 101 DC 10.[1987] 1 Q. B. 815 11. [1995] 2 AC 633, 730-1 other common Law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; (D) misfeasance in public office." A significant shift can be seen in the observation decisions made in the case of Osman v. United Kingdom.(12) It was question in the said case whether in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law and whether Claims based on Article 6(1). Hill v. Chief Constable of West Yorkshire (13), it was held that the defendant was not liable. However, an action under Section 8 of the Human Rights Act instead of negligence can only be initiated. . It would be appropriate in the present case to consider the facts applying the X (Minors) v. Bedfordshire, that an action could be brought against the Secretary of state for breach of statutory duty simpliciter even if there is no privity of contract (i.e. irrespective of carelessness). Since there is no specific common law right available to the plaintiff, he is still entitled to bring an action based solely on the careless performance of a statutory duty. Now the question remains that whether the coastguards owed drake a duty to take care or not. In the Schedule I appended to the Human Rights Act, 1998, Article 2.1 stipulates . Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court 12. 29 EHRR 245, [1999] 1 FLR 193 13. [1989] AC 53 following his conviction of a crime for which this penalty is provided by law. Right to life includes right to protection of limb and body. In view of the above provision and the law discussed above, it s very clear that coastgaurd were under a duty to take care and not being negligent in carrying out their duties. Conversely, had they been not negligent and taken due care in performing their duties and not misguiding the copters, subsequent damage and loss of limb could have been averted. In answering the agreed issue as I do in the foregoing paragraph, I differ from the reasoning and conclusion of the Court of Appeal. List of cases and references ; 1. Anns v. Merton London Borough Council [1978] A.C. 728, 751-752 2. Caparo Industries v. Dickman ([1990] 1 All ER 568). 3. Donoghue v. Stevenson [1932] A.C. 562 4. Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004 5. Heaven v. Pender (1883) 11 Q.B.D. 509 6. Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 7. Hill v. Chief Constable of West Yorkshire [1989] AC 53 8. McInnes v Onslow-Fane [1978] 1 WLR 1520 9. Osman v. United Kingdom, 29 EHRR 245, [1999] 1 FLR 193 10. R v Aston University Senate, ex p. Roffey [1968] 2 QB 538 11. R v Insurance Ombudsman Bureau, ex p. Aegon Life Assurance Ltd [1995] LRLR 101 DC 12. R v Panel on Takeovers and Mergers, ex p. Datafin [1987] 1 Q. B. 815 13. White Paper, Rights Brought Home: The Human Rights Bill 14. Winfield, Law of Torts X (Minors) v. Bedfordshire CC [1995] 2 AC 633, 730-1 Read More