Margaret Aitken v. Scottish Ambulance Service and others [2011] CSOH 49

The pursuer was the mother of the later Nikki Williamson, who died in the Southern General Hospital, Glasgow on 1 November 2003, aged 15. The pursuer sought damages in respect of the loss suffered on account of her daughter's death. Each of the defenders was sued on the basis of their vicarious liability for the alleged fault and negligence of others for whose acts and omissions they were responsible.

This case called on procedure roll, where the first defenders sought to have certain averments excluded from the pleadings for irrelevancy and lack of specification. It was also submitted by the first defenders that the member of staff in the Emergency Medical Dispatch Centre who answered the first 999 call in respect of Nikki was not under a duty of care during the period between 13.18 hours and 13.51 hours on the date of Nikki's death. The pursuer's case was founded upon averments that had the first defenders dispatched an ambulance promptly, following receipt of the first 999 call, it is likely that the ambulance would have arrived at the pursuer's house within 8 minutes. The pursuer averred that Nikki's death was caused, inter alia, by fault and negligence on the part of the EMDC employee, who answered the 999 calls.

Having heard submissions, the Lord Ordinary determined that the action should not be viewed as based on “pure omission” and moreover, the Lord Ordinary noted that the court was not prepared to dismiss the action on the basis that it was merely a rescue case (where no common law duty lies on an individual to rescue another). The Lord Ordinary further concluded that the statutory framework governing the operation of the emergency 999 services did not exclude the possibility of a private law remedy, relying on the common law of negligence. Applying the tri-partite Caparo test, the Lord Ordinary concluded that it would be open to the court to find a relationship of proximity between Nikki and the EMDC staff existed at the time the first 999 call was accepted by the first defenders.

Motion on behalf of first defenders dismissed.