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Chief Constable of Hampshire (1), South Central Ambulance Service NHS Trust (2) v Bullale (Personal Representative of the Estate of Ali Farah Bullaleh), The High Court, 12 June 2012

3 August 2012
The issues

Race discrimination – strike out application – appropriate tests

The facts

The claim of race discrimination was brought by the estate of Mr Ali Bullaleh. Mr Bullaleh was Somali.

On 11 November 2006 Mr Bullaleh was in Southampton and was assaulted by a doorman, injuring his mouth. He went home and telephoned 999 asking for police assistance and for an ambulance. Twenty minutes later he dialled 999 again. A conversation took place with the operator about what had happened to him and the delay which led to an allegation from Mr Bullaleh that he was not being assisted because he was black. The call was eventually terminated by the operator. Mr Bullaleh made two more calls to 999 during the course of that night.

Later that evening, employees of the Ambulance Trust went to Mount Pleasant Road where Mr Bullaleh lived and found him lying on the ground. In the course of the physical examination to determine his injuries he made an allegation of racism against the attendant. The attendant alleged that Mr Bullaleh had threatened him with violence. The police attended and the ambulance men left the scene. Mr Bullaleh was searched for drugs and after a further discussion, he was left sitting on the ground.

The court was required to consider whether ‘less favourable treatment’ was established before looking at the reason for it

From the CCTV footage subsequently obtained, Mr Bullaleh can be seen speaking to two men on Bevois Valley Road for 18 minutes then having gone onto another street he is later seen emerging from it and returning to Bevois Valley Road. He can be seen on the film walking into the carriageway and suddenly falling to the ground.

At 3.40 a.m. on 12 November he was run over and pronounced dead an hour later. Death was confirmed as being due to the chest injury sustained by the car running him over. There was no head trauma. He had a blood alcohol level of 185 mg per 100 ml.

A claim was brought by the estate that Mr Bullaleh had received less favourable treatment on racial grounds from the police officers and the ambulance service.

The defendants made applications for summary judgment on the basis that the claim did not have reasonable prospects of success.

At the High Court Her Honour Judge Faber asked herself:

“is it unrealistic to say that currently available evidence and/or evidence that would be reasonably expected to be available at trial would enable the claimant to prove facts in which a court could conclude, in the absence of explanation by the defendants, that there was discrimination?”

She concluded that she could not say it was unrealistic.

Both the defendants appealed the decision. On behalf of the Ambulance Service it was argued that the court had considered the incorrect test and that the court had failed to consider whether the claim had realistic prospects of success. The court was required to consider whether ‘less favourable treatment’ was established before looking at the reason for it. The ambulance personnel’s response to Mr Bullaleh was the same as they would have given to anyone. In the case of the Chief Constable, it was argued that the court had considered the incorrect test, and the facts of the case could not support a claim against the Chief Constable, given that they were made before their arrival on the scene.

The decision

The appeals were allowed and the claims dismissed.

The question for the court to consider was whether the previous judge was wrong to conclude that the claim had a real prospect of success or as Her Honour Judge Faber termed it, “whether these claims are unrealistic”. The court held that, whilst there may be material which was not before the court, it doubted that this was a sufficient reason to allow the case to proceed.

Comments

The judge had applied the test incorrectly by merging two separate questions, namely (i) whether the treatment had been proved to be less favourable, and (ii) that the reason for the less favourable treatment was racial.

In respect of the Ambulance Trust, the only material allegation made by Mr Bullaleh against the Ambulance Trust was made during the examination made by the Ambulance Trust employee, Mr Brown. If the court had given separate consideration to the question of whether this treatment was less favourable, the evidence put forward supported a finding that this was not the case. In respect of the Chief Constable, again, if the court had properly considered the first question, the answer, on the facts, would have been in the negative. Accordingly, the claims would be dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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