Responding to Crisis: When the telephone fails

Ciara Hackett

Queen's University Belfast

c.hackett@qub.ac.uk

© 2013 Ciara Hackett
First published in the Web Journal of Current Legal Issues
Citation: Hackett, 'Responding to Crisis: When the telephone fails', (2013) 19(3) Web JCLI

Abstract

The world is shrinking.  Advances in telecommunications have ensured the almost ubiquitous mobile telephone and the corresponding decline in the provision of public telephone boxes.  The increase in accessibility of mobile telephones has not been the only change.  Analogue telephone provision is for the most part being phased out, being replaced with Voice over Internet Protocol (VoIP).  With this area in transition, a number of questions can be asked round the obligations and requirements of organisations, for emergency telephone provision and issues surrounding liability if the telephone fails.

Contents

Introduction

Is there a duty to provide an emergency phone system?

Benefits of duty

If the phone fails?

The Future

Voice Over Internet Protocol (VoIP)

Recommendations

Conclusions

Introduction

The public telephone was once a common sight in shopping centres, hospitals, motorways and main roads around the United Kingdom.  Commonplace also was the idea that in an emergency a 999 call could be made from these telephones at no cost to the caller.  Today, the public telephone presence is in decline, as mobile technology has become a ubiquitous commodity.  With the decline of the public telephone (and the associated capacity to make an emergency call) a number of questions can be asked round the duty to provide any emergency phone provision and, whether any liability should attach to the organisation in which the telephone is based, should the telephone fail.

Researching this area has been difficult as, of yet, it is not something that has generated a huge amount of interest.  However, as technology develops still further, there are changes afoot in telephone provision generally.  The analogue telephone is gradually being replaced with Voice over Internet Protocol (VoIP).  Discussions have begun in the US in particular around utilising VoIP in cases of mass emergency evacuations.  With these discussions beginning, an ideal opportunity to understand some questions of duty and liability has arise, which will help situate further discussions round efficiency, liability and reform of the VoIP provision.

This article begins by questioning whether or not there is a duty to provide emergency telephones throughout an organisation.  Questioning the existence of a duty and the potential diminishing of any duty that exists with the corresponding rise of mobile telecommunications technology the article then looks at what happens when the telephone fails – and issues of primarily tortous liability concerning this.  Focussing primarily on causation, remoteness and the concept of novus actus interviens, this section of the article focuses on R v Poplar Coroner ex p Thomas [1993] QB 610 and the judgments of Dillon and Simon Brown LJJ and how the decision in this case may in fact be affected by later court decisions.   The final part of the article addresses technological advancements in this area and posits that this is an ideal time to develop existing standards in the area.  A number of recommendations are made to ensure that emergency telephone provisions are efficient, and this efficiency regulated by imposed sanctions should any incidents arise.

Is there a duty to provide an emergency phone system?

 "The provision of access to emergency services is a requirement imposed upon all public telecommunications operators in the UK that provide Publicly Available Telephone Services (PATS)". (1) It is established that telephone providers must provide access to emergency services for anyone using their telephones.  Ofcom suggests that this applies to only BT, CWC and Kingston Communications in the UK. (2)  The law is less clear on the duty, if any, to provide emergency telephones within a particular catchment or building.   This article will focus on the requirement of an individual organisation to provide emergency telephone provision.

The lack of explicit duty is perhaps explained by Hart's social habits and rules. (3)  Hart articulates the difference between social rules and social habits.  Social rules, he argues are concerned with a general and regular pattern of behaviour among a sufficiently large group of persons, together with the idea that this is a common standard of conduct. (4)  Social rules can further be subdivided into conventions and obligations.(5) Social habits on the other hand are trends commonplace within a group but are in no way binding. (6)  The group themselves may not even be aware of the habit (internal aspect) but the external perception is that there is a habit. (7)    Although the argument can be made that it is more of a social habit, the provision of emergency telephones is, in my belief, akin to a social rule…and in particular, a social convention.  Social habits only have an external aspect i.e. the rule can be said to exist by an outsider.  Social rules however have an internal and an external aspect.  Whereas the external aspect remains the same as that for social habits, it is the internal aspect, namely, the existence of an awareness of the need or rule within the social group, which separates the social rule from the social habit.  Social rules can be further sub-divided into obligations and conventions.  The provision therefore of emergency telephones traditionally sits within the remit of a social convention.  A social convention is more than a social habit but they themselves are no more than rules of etiquette. (8)  For example, failing to provide emergency telephones might be cause for criticism, even if no actual law has been broken.

Until the last ten years or so, "pay phones" were a common feature in the UK countryside. (9)  Accessibility of these telephones was necessary and for many they, and particular the 999 or 112 provision, were greatly relied upon for emergency situations. (10)  Whereas there may not have been a law requiring that emergency telephones be provided, there was an underlying social convention to provide telephones in case of emergency, recognising the need for accessibility and the fact that people did not have access to mobile telephones.  As public telephones in general fall into disuse, perhaps this social convention is now becoming increasingly obsolete.

There may not be an explicit duty to provide an emergency telephone within organisations, and indeed in public places, but, nevertheless, similar to Hart's social convention idea, there are a number of indications of an implicit duty.  Focusing primarily on the tort law angle, the rest of this section will highlight some of the situations where an argument can be made for an implicit duty to provide emergency telephone access within an organisation.

An implicit duty to provide emergency telephones, loosely based on duty of care principles, can be said to exist.(11)   The current status of duty of care today is the three-step test outlined in Caparo Industries;(12) proximity, foreseeability and whether it is fair, just or reasonable to impose a duty.  This particular issue (the provision of an emergency telephone) has not been tested to date in this jurisdiction but the strands of proximity and "fair just and reasonable to impose a duty" are likely to form the main argument. (13)   However, the provision or otherwise of the emergency telephone is less likely to be a litigious issue than where a provided emergency telephone has failed.   This will be considered in detail in the next section.

As already noted above, there is limited guidance in this jurisdiction regarding the provision of emergency telephones.  Some developments in this area can be found in the US, for example: by failing to provide emergency telephone numbers, parents were held to have failed in their duties to babysitters looking after their children(14) and in the US, there is a duty to provide a safe campus. (15)  Some universities have interpreted this by installing emergency call boxes on campus. (16) 

In terms of the working environment, implicit in Health and Safety and Equality legislation is the need to provide a safe place to work, and a place accessible to those in the workplace. (17)  Section 20 of the Equality Act 2010 looks at the duty to provide adjustments.(18)  This is a positive duty placed on organisations to ensure that people are not prevented from using the services because they have a disability.  When deciding whether or not an adjustment can be made, service providers can look at things such as cost and the practicalities of making these adjustments.  However, the size of the organisation will be taken into consideration here in deciding if an adjustment is reasonable or not.  Also of relevance is s20 (5), which states that:

The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.(19)

Does the provision of a reliable telephone service amount to an auxiliary aid? The Equality and Human Rights Commission define "auxiliary aid" as a "special piece of equipment to improve accessibility". (20)  Traditionally, a telephone with emergency call provision could not have been said to be a piece of equipment designed to improve accessibility beyond that they were placed in accessible locations (i.e. popular public places, main roads).  However, with the rise of mobile telecommunications technology, perhaps the emergency telephone could be considered a necessity in ensuring that a particular work place – or area used by the public is accessible – providing a point of contact if something should go wrong.

In relation to the Health and Safety at Work Act, (21) similar issues arise as those mentioned above. (22)   Particular provisions of interest include ss 2(2)(d) and 4 (2).  Section 2(2)(d) states that

so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks. (23) 

If there is no emergency telephone provision in an organisation, are you limiting employees' safe use of the premises? (24) This is again highlighted in s 4(2) where it states that,

It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health". (25)

Whether or not the failure to provide an emergency telephone will act as a detriment to an employee in an organisation is perhaps questionable – nonetheless, taken in conjunction with the Equality Act 2010 (above) the suggestion seems to be that access should be provided. (26) In addition, the failure of an emergency telephone service could lead to a risk to health – suggesting that their provision, and reliable provision at that, needs to be provided.

Finally, for this subsection, it may simply be that the greatest motivator to provide access to an emergency telephone is a fear of litigation for not providing it. (27)  The problem then becomes whether or not the organisation is then liable if the telephone fails to function, or whether it becomes an issue of liability for the installer, designer or telephone company – as regulated by the European Directive 98/10 EC mentioned at the beginning of the article. (28)   The next subsection looks at the benefits of emergency telephone provision and particularly the idea of "Chain of Survival".

Benefits of duty

There are benefits to complying with the implicit duty and these have to an extent been well documented in the literature.  These articles focus on the advantages of utilising the 999 - (or 911) telephone call but it is useful in illustrating what is at stake.   Cummins et al focus on what they term the "chain of survival" (29) the first link of which is the early access link. (30)  They term the early access link as being the moment when the patient suffers a cardiac arrest and the responder realises the severity and contacts the correct services.  Ruston at this point, using empirical data reflecting on personal experiences, notes that the number of people ringing GPs rather than emergency services is overwhelming and is a statistic that needs to be changed.(31)  Cummins et al, posit that the early access link can be strengthened through "public education, especially persons most likely to witness a cardiac arrest, and by installation of an efficient emergency communication system". (32)

The efficiency or otherwise of an emergency communication is discussed in the next section in greater detail along with the issues of liability that arise from this.  But, the purpose of this subsection is to suggest, that whereas a legal duty may not exist on the provision of emergency telephones, the ethical and moral position do present something of a dilemma to organisations contemplating the provision or otherwise of an emergency telephone system.  There are two main problems facing organisations in this position:

  1. There is no explicit legal duty to provide an emergency telephone.  However, if an organisation does not provide an emergency telephone, and someone dies or injury is prolonged as a result, the moral quandary is clear.
  2. Even though there is not necessarily an explicit duty to have an emergency telephone, will the organisation be held liable if there is one, and it fails?

Articulating concerns around scenario one is difficult and hard to prove.  It may be why there are so many emergency telephones available in organisations.  However, it is the second scenario that is of most interest to this article.  The issue here comes down to causation and whether or not the failure to provide an efficient service caused the injury or death.(33)   The next section of the article will address the causation issue by looking at the position, and associated liabilities, if the telephone fails.

If the phone fails?

Although it may be difficult to establish whether or not there is a duty to provide an emergency telephone, more guidance is provided in UK law as to the position, should the telephone fail. It appears from similar scenarios relating to failure of adequate ambulance response, that these cases would centre on issues of causation, remoteness and novus actus interviens. This section will look at these issues before then turning to issues of liability: who would be liable and for what would they be reliable.  The case of R v Poplar Coroner ex p Thomas (34) centred round a young girl who took an asthma attack.  A neighbour called for an ambulance at 1am.  This did not arrive until 1.33am by which point the girl had been transported to hospital, where she had suffered a cardiac arrest and died.  The coroner did not hold an inquest as he was satisfied that the deceased had not suffered an "unnatural" death. (35)  The family contested this finding, arguing that the delay in ambulance response was a material cause in the death of the patient and therefore it was an "unnatural" death warranting an inquest.   The hearing therefore centred round whether the delay in ambulance response was a material cause in the death of the patient.

Dillon LJ, in his judgment, suggested that it was "easy to think of a variety of different scenarios as a result of which an ambulance could have arrived too late to save a patient who had suffered a severe attack of asthma like Miss Thomas's, e.g. (iv) a newly installed computer installed by the ambulance service to handle emergency calls more efficiently malfunctioned, as newly installed computers are prone to". (36)  He believed, that the crux of the case was whether the deceased died from natural (asthma attack) or unnatural (failure of the ambulance) causes.  Citing Lord Salmon in Alphacell Ltd. v Woodward (37) and pointing out Lord Wilberforce's judgment in the same case (38) Dillon LJ was satisfied that the cause of the death was the asthma attack and not the failure of the ambulance to arrive in time. (39)   The subjective issue seems to have been the delay in the ambulance arriving (33 mins from the initial emergency call).  In the later case of R v HM Coroner Avon Ex Parte Smith (40) a delay of 10 hrs in seeking the necessary medical treatment was considered to have materially contributed to the patient's death. (41) 

These cases, along with Alphacell Ltd. v Woodward,(42) relevant due to Lord Wilberforce's comments on the "legalities of causation" were decided prior to the seminal causation case of Fairchild v Glenhaven Funeral Services (43) where the House of Lords decided that the appropriate test in certain situations was whether the defendant had materially increased the risk of harm to the claimant. (44)  These situations were generally where the limitations of scientific knowledge could not prove which potential defendant caused the injury.  Fairchild held that they were all jointly and severally liable. (45)   This was changed in Barker v Corus (UK) plc (46) where the House of Lords revisited their decision in Fairchild and advocated proportionate liability. Intervention from the government on the basis of this case resulted in the Compensation Act 2006, s 3 of which returns the law to the Fairchild principles in cases of mesothelioma.(47)  For other cases, Barker v Corus remains the law – it will be interesting to see how this is applied outside employer liability cases. (48)

Despite Lord Wilberforce's consternations in Alphacell,(49) the development of the material element test has ensured that "legalities of causation" are very much a point of consideration in judgments today.   The evolution of the material elements test from McGhee to Fairchild to Barker ensure that the courts today are keenly aware that an injury does not necessarily exist in a vacuum.  Whereas the failure of a working emergency telephone will not necessarily "cause" an injury or death, it can contribute to the severity of the issue due to the time lapse in procuring a working telephone.  Of course, the cases when this might arise are few and far between due to the almost ubiquitous presence of mobile technology.  However, in "black out" zones etc, an emergency telephone may be the only means of securing emergency assistance.   With the decision of Barker, it would appear that the failing of the telephone may ensure that the necessary organisation is found liable for a percentage of the compensation in proportion to how their negligence contributed to the injury caused. The most recent cases that have looked favourably on the claimant have been focused on mesothelioma prompting the suggestion that the courts are particularly hard on the defendant in these instances due to the severity of the illness.  Although this has yet to be translated into a live issue, it is unlikely that Lord Wilberforce's common sense approach to causing can compete with significant developments in the science of causation in recent years.

The last paragraph talked about the "necessary organisation" being found liable.  Who is this organisation? Before addressing ways in which the potential defendant could be absolved from liability, it is first necessary to see who, in this case, would be the defendant.  Is it the organisation in which the telephone is based; the PATS that has provided the telephone service; the installers of the telephone or the designers of the telephone?  In order to consider the approach that the courts might take in this regard, it is necessary to look at a similar issue which has generated significant discussion – namely, software security failure.

Pinkney suggests that in the US, due to the magnitude of security related failures, courts will increasingly handle suits against software manufacturers, in this case, the telephone manufacture. (50)  He argues that understanding common design flaws that lead to security failures are an essential element of software design and the need for manufactures to exercise a reasonable duty of care.  This understanding, he continues, suggests, "software manufacturers should be liable, perhaps strictly liable, for design flaws underlying security-related software failure". (51)  And he has a point.  Much has been written on the area of security related software failure which Philips describes as cases where "functioning has not met user requirements in some way". (52)  Given the magnitude of the consequences, Pinkner's rationale is understandable.  However, it would appear that Congress does not agree.  The Computer Fraud and Abuse Act (CFFA) 1986, amended in 2000, now includes the language "no action may be brought for the negligent design or manufacture of computer hardware, computer software or firmware". (53) Although discussions in this area are mainly centred round computers it is easily transcended to the issues identified in this article.  Faults in the line, computer glitches at the PATS are all foreseeable - the general public are aware that things can go wrong.  Why is it accepted that things go wrong and no one is accountable? (54)  Arguments advocating strict liability approaches in the UK have also been made.  Schneier, writing in the Guardian made the comment that "[t]here's no other industry where shoddy products are sold to a public that expects regular problems, and where consumers are the ones who have to learn how to fix them".(55)

Although the above paragraph refers primarily to security breaches in software the same questions exist in terms of telephone technology.  If the European Directive is accepted, (56) the PATS are responsible for ensuring that the emergency service exists.  Although there is a further stipulation that the telephone service must be to "an acceptable level" and that "999 service provision is particularly important in this regard (57)" – the standard of acceptability is not quantified.  This points to a crisis of both responsibility and accountability within the system – something that can be changed by introducing regulations and policies – and perhaps advocating a new liability regime.  Whereas developments in the law of causation has made it easier to make the manufacturer or designer accountable for the failure – there are a number of protections afforded to these potential defendants in the shape of novus actus interviens and the concept of remoteness. (58)

It may be clear that the defendant's conduct, act or omission (in this case failure to provide a working emergency telephone) was one cause of the claimant's loss, but the defendant may try and escape liability by saying that the loss was too remote a consequence of the defendant's tort i.e. the connection between the tort committed and the injury suffered is too tenuous for the defendant to be held liable (59).  With foreseeability being the key element, it will be difficult for any telephone designer, manufacturer or even the PATS to argue that the failure of an emergency telephone and the associated impact that this would have on the injury – is too removed for them to be liable.  It is foreseeable that when the telephone fails, it will have an impact in prolonging the suffering of the injured party.  With the changes in causation since Fairchild,(60) coupled with developments in the egg-shell skull rule (61) it is foreseeable that in this scenario, the defendant would be liable for a portion of the damages which can include psychological harm arising from having to source another emergency telephone. (62)

Discussion is limited on the failings of telephone technology (and particularly the failure of an emergency telephone).  This section has drawn on commentary from software security failures and suggests that the same ideas would apply in this situation.  The failing of the telephone, or of the emergency service provision, prompts questions around causation – and whether this failure caused or materially contributed to the cause of the injury.  Case law is limited but the existing case law e.g. R v Poplar Coroner ex p Thomas (from the early 1990s) illustrates the acceptance of the court that "these things happen" and not a factor in the cause of the injury.  Notably, this case highlighted Lord Wilberforce's concerns about shifting from a common sense approach to causation towards a scientific interpretation of the facts.  Unfortunately for Lord Wilberforce, developments post-Fairchild has impacted considerably on the scientific approach to causation with the latest developments in this area highlighting attributing cause in portions.  R v Poplar Coroner ex p Thomas highlights another concern, and it is the acceptance "these things happen" – this concern was the subject for discussion in this section.  Although focused primarily on software security failures it noted the prevalence of this acceptance by authorities.  Despite recommendations of imposing strict liability, the government has not yet implemented this.  This discussion also helps define who would be liable – it would appear that ultimately it would be either PATS or the designer of the telephones.  With Ofcom expecting an "acceptable level of service", PATS would be responsible to the regulator.  The next section looks at the current trends in telephone provision as well as highlighting some recommendations for future practice.  

The Future

Voice Over Internet Protocol (VoIP)

The world of telecommunications is evolving constantly.  Increasingly, Voice Over Internet Protocol (VoIP) is being heralded as the replacement for traditional analogue phone provision.  Globally, the effectiveness of VoIP generally is being debated along side particular discussions of effectiveness within the emergency provision framework.  Notably, the "Emergency Alert for Voice over Internet Protocol" patent has highlighted the challenges for emergency phone provision. (63)  Although this patent is primarily concerned with mass evacuation procedures, it recognises that the challenge of routing 911 calls with "adequate automatic location identification (ALI) data to [Public Safety Answering Points (PASPs)] is made more difficult". (64)  Whilst recognising that the existing solution is standardised in NENA i2 Migratory Standard, (65) Dickinson et al believes that it is insufficient (especially with regard to the "emergency alert" scenario). (66) 

In the UK, although the shift to VoIP has been on-going for a number of years, regulations and policies are not forthcoming.  Oftel have said that they have a "technology neutral approach to the regulation of VoIP.(67)"  Therefore the existing regulations are likely to still be relevant, irrespective of the technology. (68)   However, the discussions in the last section relating to security software failures are likely to become increasingly relevant with this shift in technology toward VoIP. 

This does little to satisfy the real issues.  The first section of this article highlighted how there was not really a duty to provide an emergency telephone provision, and it had merely developed as a result of a social convention and organisations' fear of litigation. Perhaps it is the lack of regulation in this area that needs to be questioned.  Why is there no duty to provide X amount of emergency telephones within an organisation? Why again is there not a stricter liability regime placed on designers and manufacturers to circumvent the "these things happen" comments? I made a comment above about the crisis of responsibility and accountability within this area.  In short, whereas there may be a responsibility for PATS or VoIP servers to provide an "acceptable" standard of provision (which incorporates 999), there are no mechanisms in place to hold them to account should they fail to do so, or should they fail to meet the "acceptable" standard – which, in itself is quite vague.   This could be remedied by re-evaluating the liability framework used in these circumstances – a strict liability regime, would ensure a more efficient system as the checks and balances in place to ensure efficiency would be more draconian in nature.  There is an urgent need to shift from the mind-set of "these things happen"  - changing the liability framework one way in which this can be achieved. 

Society is changing.  Mobile telephones have now become an essential part of daily work and social life.  Even since the implementation of Directive 98/10/EC, mobile telephone usage has exploded exponentially.(69)  Whereas it could be argued that the ubiquitous nature of the mobile telephone has negated the requirement for emergency telephone provision, the opposite is in fact true.  The over-reliance on mobile telephone technology is perhaps most evident when we are deprived of the universality of it for any length of time.  Black out zones, laboratories, areas using X-Ray waves all contribute to the heightened panic when "No signal" appears on the mobile display.  Add this to a failed emergency telephone in those areas and issues pertaining to the egg-shell skull rule could become increasingly relevant if liability were to be imposed.   It is necessary that there is a basic minimum standard achieved: a number of places where efficient emergency telephone provision MUST be present etc.   In addition, this article has referred to equality legislation.  Developments in this area, must take into consideration the various needs of those who may foreseeably be using the service.  This must be taken into consideration and indeed, perhaps the "auxiliary aid" element of the Equality Act 2010 needs to be incorporated into associated telephone provision policies within PATS, VoIP organisations or organisations in general. (70)

Recommendations

Based on the research carried out for this article, and comments made throughout this piece, I have made the following recommendations:

  1. Regulations on the requirements for emergency telephone provision
    1. Policy development in the area of implementation of regulations
    2. A minimum standard where effective emergency telephone provision MUST be provided.
  2. Legislative changes on liability for foreseeable telephone failures.
  3. Where should these telephones be placed?
  4. Policies for ensuring the efficient nature of telephone – this would be required more so now as perhaps difficult to detect fault in VoIP
  5. Equality – development on the provision of accessible phones 

Conclusions

This article was borne from a question on the liability for failings in an emergency phone system.  On attempting to answer the question, I discovered the lack of a duty to even provide an emergency telephone and that failures of efficiency were accepted in a way that no other product on the market could achieve.  Whereas there may be no explicit duty to provide an emergency telephone service, this article started by looking at implicit duties.  The fear of litigation was a deciding factor, but, as the next section focussed on litigation in this area, it became increasingly clear that there is something of a crisis of accountability within the telephone provision infrastructure.  The laid back, these-things-happen attitude of some of the judgments were quite an eye opener.  What may have been acceptable in the 1970s or even the 1990s should no longer be an excuse against civil liability for failings in efficiency.  Whereas this has yet to be translated into a live issue – developments in causation decisions would suggest that this impasse will no longer be accepted.  However, when focussing on the similar issue of software security failings, and indeed the regulatory failings in this area, the prospect of a rigorous regulatory infrastructure seems suddenly clouded.  The need for regulation is clear, and as the industry is engaged with new forms of technology in the VoIP framework, government, regulators and policymakers alike, are in an ideal situation to ensure that as technology moves into a new era, the mechanisms to ensure its effectiveness are also present.


(1) "An overview of the fixed telephone emergency services (999/112)" OFCOM, October 2002 http://www.ofcom.org.uk/static/archive/oftel/publications/ind_guidelines/emer1002.htm Sourced on 3rd July 2013. This duty is described in Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment.  Of interest here also is art. 9 which indicates that this provision must be free of charge.

(2) OFCOM. 2002. An overview of the fixed telephone emergency services (999/112) http://www.ofcom.org.uk/static/archive/oftel/publications/ind_guidelines/emer1002.htm Sourced on 3rd August 2013.

(3) HLA Hart, Concept of Law (Clarendon Press, Oxford 1961)

(4) S Perry, 'Hart on social rules and the foundations of law: Liberating the internal point of view', (2006-2007) 75(3) Fordham Law Review 1171

(5) HLA Hart, Concept of Law  (Clarendon Press, Oxford, 1961)

(6) Ibid.

(7) S Perry, 'Hart on social rules and the foundations of law: Liberating the internal point of view,' (2006-2007) 75(3) Fordham Law Review 1171

(8) J Raz, 'Hart on Moral Rights and Legal Duties,' (1984) 4(1) Oxford Journal of Legal Studies 123

(9) J Insley,  "BT sells off phone boxes as demand declines," The Guardian (26 April 2012) http://www.theguardian.com/money/2012/apr/26/bt-sells-phone-boxes-demand-declines Sourced on 19th July 2013

(10) 999 is the traditional emergency number familiar to those living in the UK.  However, it was decided by the European Council that there was a need for a EU wide emergency number.  This number is 112.  For more on this see Council Decision 91/396/EEC of 29 July 1991 on the introduction of a single European emergency call number, OJ L217, 6.8.91, p.31.

(11) The "duty of care" concept was established in the UK was established in Donoghue v Stevenson [1932] AC 562.  This case held that a person owed a duty to another (outside of contract) where there existed sufficient proximity and reasonable foreseeability.  Once established, the concept of duty of care expanded in the UK with subsequent case law (Hedley Byrne & Co Ltd v Heller& Partners Ltd [1964] AC 465; Dorset Yacht Co Ltd v Home Office [1970] AC 1004) with the high water mark being Anns v Merton London Borough Council [1978] AC 728. Lord Wilberforce's judgment here introduced a two-step test, broadening the neighbour test outline in Donoghue and incorporating a policy element – i.e. courts should consider that there are no considerations relevant that may limit or reduce the scope of the duty. Broadly criticised in subsequent case law, the decision in Anns was condemned in a number of cases (Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210; Murphy v Brentwood District Council [1991] 1 AC 398, Yeun Kun Yeu v Attorney General of Hong Kong [1988] AC 175) before being replaced with an "incrementalist test" in Caparo Industries plc. v Dickman [1990] 2 AC 605.  This incrementalist or three-step test outlined in the judgments of Lords Bridge and Oliver of Aylmerton overcame the criticism of Anns (i.e. that it failed to separate proximity from foreseeability) with the three steps being: proximity, foreseeability and whether it was fair, just or reasonable to impose a duty.  Seen by many as a return to the pre-Donoghue v Stevenson days, the law in the last fifteen years or so has tenuously began to re-embrace the duty of care provision again as evidenced in cases like Spring v Guardian Assurances plc. [1995] 2 AC 296 and Sienkiewicz v Greif (UK) Ltd  [2011] UKSC 10, [2011] 2 AC 229.

(12) Caparo Industries plc. v Dickman [1990] 2 AC 605.

(13) For example – application of the test could be as follows.  In failing to provide an emergency telephone – was there a sufficient proximate relationship between the defendant and the injured party? (i.e. should the organisation consider the impact of any decision on them).  Was it foreseeable that an emergency telephone might be required? (Is it a mobile signal blackout zone? Is it an area where mobile telephones are not allowed be used? Is it in a zone more dangerous than others – i.e. in a chemistry lab?). Is it just, fair and reasonable to expect that there is a phone provided? Again, this might come down to the foreseeability aspect and also whether the organisation could reasonably afford to install said device.

(14) M. Forman-Brunell, Babysitter: An American History (NYU Press, New York 2009) 34.  Although not a formal employer-employee relationship, and not in relation to emergency 999 numbers, this gives some insight into the public perception of a duty to provided emergency phone provision of some sort even in the apparent absence of an explicit duty to provide.

(15) Case Comment: Eisemann v State of New York: The duty of a college to protect its students from harm by other students under special programs, (1998) 14 Journal of College and University Law 593. This is also embedded in legislation with the Student Athlete Right to Know and Campus Security Act Pub. L. No. 101-542, 104 Stat. 2381 (1990).

(16) For example, the University of Virginia.  See, S. McEvoy, 'Campus Insecurity, duty, foreseeability and third party liability', (1992) 21(2) Journal of Law and Education 132.  Within this article, McEvoy makes a number of suggestions about how universities can comply with the Student Athlete Right to Know and Campus Security Act.  One of these recommendations is the installation of more "call boxes" directly linked to campus security. 

Also of some passing interest is the case of United States v Riggs (1990) 739 F.Supp. 414, 743 F.Supp 556.  This case centred round two students who obtained unauthorised access into Bell South's computer systems and disseminated a file relating to their 911 products.  Although charged, charges were eventually dropped against one of the students.  The other student had a record in this area and his sentence (although appealed) was 18months.

(17) Equality Act 2010 s 20 http://www.legislation.gov.uk/ukpga/2010/15/section/20 Health and Safety at Work etc. Act 1974 http://www.legislation.gov.uk/ukpga/1974/37/pdfs/ukpga_19740037_en.pdf

(18) Equality Act 2010 s 20 http://www.legislation.gov.uk/ukpga/2010/15/section/20

(19) Ibid.

(20) Equality and Human Rights Commission: Glossary of terms http://www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/glossary-of-terms/#e Sourced on 27th August 2013

(21) Health and Safety at Work etc. Act 1974 http://www.legislation.gov.uk/ukpga/1974/37/pdfs/ukpga_19740037_en.pdf

(22) As well as the Health and Safety Legislation discussed in this subsection, there also exists some common law provisions under employer liability including, a duty to provide a safe place of work and a duty to provide safe equipment.  Whether or not a telephone can be a piece of equipment or whether it is a component of a safe place to work is something that there is no evidence on but it is something that can be taken into consideration.

(23) Health and Safety Act 1974 s 2(2)(d).

(24) Also of interest is the reliability or otherwise of an emergency telephone.  This is discussed in greater detail in the next section.

(25) Health and Safety Act 1974 s 4(2) (emphasis added)

(26) Overriding this is the idea that this failure of VoIP telephone provision should only arise in extreme circumstances such as a power supply failure.

(27) There are other issues such as the questions surrounding a duty to act.  In Ireland for example, there exists the Civil Law (Miscellaneous Provisions) Act 2011.  This Act provides for certain provisions, including on the Civil Liability of Samaritans and Volunteers.  The Act puts on Statutory footing, the protection of good Samaritans and volunteers from personal liability for negligence, in giving assistance, advice or care, or carrying out voluntary work, except where they act in bad faith or with gross negligence – does this extend to the emergency telephone? In a similar vein, Civil law countries include a "duty to rescue" within their legal framework.  Theoretically this means that they must go to all reasonable lengths to procure medical assistance (without putting himself in danger) but in reality it seems to mean telephoning for assistance.  What if they do not have a telephone? The implications are unclear at this point. For information on the provisions within civil countries on this "duty to rescue" see: France – "non-assistance à personne en danger" –Criminal Code art 223-6; Germany – "Unterlassene Hilfeleistung" and offence under Strafgesetzbuch s 323. This duty also exists in Serbia and in the Canadian state of Quebec (only for private law as the criminal law is federal – and therefore based on the Canadian common law system).

(28) Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment

(29) Cummins, Ornato, Thies and Pepe 'Improving Survival from sudden cardiac arrest: The chain of survival'.  American Heart Association Statement http://percuma.50megs.com/cpr/ISFSCAstatement.html  Sourced on 5th August 2013. Ruston, 'Accessing emergency care at the time of a heart attack – why people do not dial 999 for an ambulance', (2001) 121(4) Perspectives in Public Health 243-247.  Although this is an empirical piece on people's experience with 999 and their personal reasons for not utilizing the service, it is interesting insofar as it illustrates the importance of 999 in best care practice.

(30) Cummins, Ornato, Thies and Pepe, 'Improving Survival from sudden cardiac arrest: The chain of survival'. American Heart Association Statement http://percuma.50megs.com/cpr/ISFSCAstatement.html  Sourced on 5th August 2013

(31) Ruston, "Accessing emergency care at the time of a heart attack – why people do not dial 999 for an ambulance", (2001) 121(4) Perspectives in Public Health 243-247.

(32) Cummins, Ornato, Thies and Pepe, 'Improving Survival from sudden cardiac arrest: The chain of survival'.  American Heart Association Statement http://percuma.50megs.com/cpr/ISFSCAstatement.html  Sourced on 5th August 2013

(33) Arguably this could still apply to scenario one, as the question could be asked whether the failure to provide an emergency telephone caused the injury or death. Additionally, the impact on the 'chain of success' is also an issue.

(34) [1993] QB 610

(35) The deceased had not suffered an "unnatural" death as per the stipulations in the Coroners Act 1988 s 8(1)(a).

(36) [1993] QB 610 – it is interesting here that Dillon LJ simply accepts that computer (and by extension) telephone failings just happen.  He does not refer to this as being a failing in the standard expected.  However, perhaps this is as much attributable to the date of the case (1993) as to the matter-of-fact attitude of the courts in this regard.   Note in addition, where Dillon LJ refers to the case of Reg. v Inner London North District Coroner, ex part Linnane [1989] 1 WLR 395 where Taylor LJ interpreted Coroners Act 1988 s 8(3)(d) as suggesting that the recurrence of delay on the part of the ambulance service in answering emergency calls is a matter of justified public concern – which would warrant having a jury if an inquest is heard.  Whether this would extend to the failure of an emergency telephone is not mentioned but it follows the same line of argument.

(37) [1972] AC 824

(38) Lord Wilberforce in this case made clear that "causing" should be given a common sense interpretation.  It is clear from this judgment that he was against the introduction of "legalities" such as novus actus interviens.

(39) Brown, LJ also delivering a judgment in this case, focuses on the failures of communications.  Like Dillon, LJ he suggests that  "congested traffic or other transportation or communication difficulties causing delayed arrivals are not, I fear, rare and certainly could not as a matter of common sense be thought directly causative of the death such as to make it in this context unnatural".

(40) (1998) 162 JP 403

(41) The judgment here distinguished this case from R v Poplar Coroner ex p Thomas [1993] QB 610 on the basis of timeframe and how ten hours would have ensured that medical treatment had been received in time.

(42) [1972] AC 824.

(43) [2002] UKHL 22, [2003] 1 AC 32.

(44) Traditionally, the test for causation was the "But For" test – i.e. but for the actions of the defendant, the person would not have suffered injury.  For application and discussion of this test, see Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.  However, difficulties with this test (especially where there were two or more defendants –as highlighted in Fitzgerald v Lane [1989] AC 328) – led to the decision in McGee v National Coal Authority [1973] 1 WLR 1, which introduced the idea of a material contribution or element test, which was later refined by Fairchild.  Note, that these coroner cases were heard post McGhee but as McGhee had been contested in Wilsher v Essex Area Authority [1988] AC 1074 as not having created a new test for causation.

(45) [2002] UKHL 22, [2003] 1 AC 32

(46) [2006] UKHL 20, [2006] 2 AC 572

(47) For full details of the Act and the provision, please see http://www.legislation.gov.uk/ukpga/2006/29/section/3

(48) [2006] UKHL 20, [2006] 2 AC 572.  Also of relevance here are two more recent cases (decided together) Sienkiewicz v Greif (UK) Ltd, Wilmore v Knowsley Metropolitan Borough Council [2011] UKSC 10, [2011] 2 AC 229.  Judgments are arguably very pro claimant.  However, the public policy elements of these judgments are on the seriousness of the mesothelioma and the limitations of scientific knowledge.  Whether this degree of leniency (which the courts admitted) would appear in non-asbestos cases remains to be seen.

(49) [1972] AC 824.

(50) K.R. Pinkney, , "Putting blame where blame is due: software manufacture and customer liability for security related software failure," (2002-2003) 13 Albany Law Journal Science and Technology 43, 47. 

(51) Ibid.

(52) D. E. Philips, 'When software fails: Emerging standards of vendor liability under the Uniform Commercial Code,' (1994) 50 Business Law 151.

(53) Computer Fraud and Abuse Act 1986 18 USC § 1030 (g)(2000)

(54) R v Poplar Coroner ex p Thomas [1993] QB 610

(55) B. Schneier, 'Software makers should take responsibility (The Guardian 17 July 2008).

In addition to this, the House of Lords published a report in 2007 where they criticised the regime.  Quoting Anderson "Liability gets dumped as much as possible on the end user", they notes that the absence of liability in contrast means that there is little incentive to ensure efficiency within the systems.  They also questioned whether or not a liability regime could create an incentive for vendors to raise their standards.  For more information, please refer to: House of Lords, 2006-2007, Science and Technology Committee: 5th Report of Session "Personal Internet Security Vol. I Report". http://www.publications.parliament.uk/pa/ld200607/ldselect/ldsctech/165/165i.pdf. Note that the House of Commons rejected this recommendation which the House of Lords made in the updated report a year later.  No further developments have been evidenced.

(56) Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998.

(57) "An overview of the fixed telephone emergency services (999/112)" OFCOM, October 2002.

(58) A novus actus interviens is a new intervening act that breaks the chain of causation.  Hart and Honor describe it as, "the free, deliberate and informed act or omission of a human being intended to exploit the situation created by the defendant negatives causal connection".  (HLA Hart and T Honoré, Causation in the Law (2nd ed Clarendon Press, Oxford 1985) 136.)  This new intervening act can be an act by a third party, by the claimant himself or by an act of god. See, McKew v Holland 1970 SC (HL) 20 (Act of the claimant as a novus actus interviens) and Lamb v Camden LBC [1981] QB 625 (Act of a third party).  There are few cases on the Act of God defence in Novus Actus Interviens so it remains unclear as to what the law in these circumstances.

(59) Initially, the test for remoteness was that of "direct consequences".   (Re an arbitration between Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560) but the test is now one of foreseeability (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] AC 388).

(60) [2002] UKHL 22, [2003] 1 AC 32.

(61) This rule means that you must take your victim as you find him.  See Smith v Leech Brain & Co [1962] 2 QB 405.  In this case, it was ruled that if the initial injury was foreseeable, then the defendant becomes liable for all harm.

(62) See Corr v IBC [2008] UKHL 13, [2008] 1 AC 884.  This case held that, as long as some injury was foreseeable, the egg shell skull rule will extend this principle to more tenuous injury including psychological harm.

(63) R. Dickinson, D. Mitchell, J. Croy, United States Patent; Patent number: US 7,933, 385 B2 (26th April 2011)

(64) Ibid.

(65) National Emergency Number Association

(66) R. Dickinson, D. Mitchell, J. Croy, United States Patent; Patent number: US 7,933, 385 B2 (26th April 2011)

(67) Frequently Asked Questions on the Regulation of Voice over Internet Protocol Services. http://www.ofcom.org.uk/static/archive/oftel/publications/internet/2002/voip0402.htm Sourced on 29th August 2013.

(68) Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998

(69) Ibid.

(70) Equality Act 2010 s 20(5) http://www.legislation.gov.uk/ukpga/2010/15/section/20 For definition of auxiliary aid, please refer to Equality and Human Rights Commission: Glossary of terms http://www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/glossary-of-terms/#e Sourced on 27th August 2013.