“Even drivers of emergency vehicles, who may be exempted from ordinary speed limits, are not exempted in terms of liability for negligence. They are not given carte blanche to drive without due care. However, in determining whether due care was taken, the court is entitled to give the object of the journey due weight. If this category of defendant is to be held potentially accountable in the law of tort, it would make no sense to conclude that gardaí when performing public order duties could be deemed to be under any less of an obligation in terms of the duty of care which they owe to members of the public”.
Irvine J in Fagan v Garda Commissioner & others [2014] IEHC 128
This is an obiter view given in the action where the innocent Plaintiff was knocked to the ground by riot police in a public order situation. The matter did not concern a road traffic accident. It did restate the position that Garda officers do owe a duty of care to other road users when driving, even in an emergency.
In Fagan the Defendants argued inter alia that the defendants did not owe a duty of care to the plaintiff as to the manner in which they exercised their public order function.
In support of the assertion the defendants relied inter alia upon the decision of The House of Lords in Hill v Chief Constable of West Yorkshire Police [1989] 1 AC 53, the decision of Kearns P. in Lockwood v Ireland [2011] 1. I.R. 374 and that of Hedigan J. in L.M c Commissioner of An Garda and others [2012] ILRM 132. In further support the defendants relied upon Glencar Explorations v Mayo County Council (No.2) [2002] 1 I.R 84 in which the court concluded that a public authority could not be sued in negligence in relation to any decision made by it when exercising its statutory duties, except in exceptional circumstances.
Irvine J. rejected the defendants’ submission that by analogy the court should apply the reasoning in Glencar.
The court noted that the reliance of the Hill case did not afford such immunity from suit and noted that in that case Keith L.J. at para 59 stated precisely the opposite, saying “There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.”
Irvine J. rejected that the court should conclude that there is some higher threshold which the plaintiff must establish, such as malice or recklessness, so as to succeed in liability.
In Fagan the court dismissed the claim on the circumstances.
Legislation
Section 87 of the Road Traffic Act 2010 provides that the requirements, restrictions and prohibitions of the Road Traffic Acts relating to driving and use of vehicles do not apply to emergency vehicles where the use does not endanger the safety of road users.
It is important to note however that this affects the drivers of the emergency vehicles criminal liability rather than civil liability.
The Courts will of course hold that the social utility of saving life or property or dealing with crime is a factor which merits being taken into consideration when one applies the test of the “reasonable person” which is the test which underlies the standard of care in negligence.
Emergency drivers do not enjoy blanket immunity however.
Case Law
In the High Court (unreported June 1993) case of Strick v Treacy the Plaintiff was driving her car on the Tallaght By-Pass approaching a junction controlled by traffic lights which were green in her favour. A Garda car, which was escorting a fire engine on its way to a school fire, travelled through red lights with its flashing lights on. It transpired that the fire engine was some considerable distance behind the Garda car (the Garda vehicle having failed to stay close so to speak to the fire engine it was escorting). The fire engine then, also with it’s flashing lights on, emerged in breach of traffic lights crossing the path of the Plaintiff who collided with same.
O’Hanlon J apportioned liability three ways.
He held that the Garda driver should have done more to halt the traffic, particularly having regard to the large gap that he had allowed to open up between him and the fire engine.
The driver of the fire engine was negligent because he had a clear unobstructed view for a long distance to his right when he neared the junction.
The Plaintiff was negligent as the Court held that she should have been alerted to the presence of the Garda on the highway and should have been “doubly cautious” when she saw the large fire engine approaching from her left with its lights flashing.
See also O’keefe v Ladola & Dublin Corporation, Circuit Court 12th January 2000, where an emergency driver was held liable in negligence.