Caparo is no panacea and hospitals’ duties are owed by medical and non-medical staff alike: Darnley v Croydon Health Services NHS Trust [2018] UKSC 50

This blog is by Helen Waller of 12 King’s Bench Walk.

Is an NHS Trust liable in negligence for the acts or omissions of its administrative staff? The Supreme Court provides an answer: a unanimous yes.

Background

This case arose from unfortunate, but sadly not entirely surprising facts. Mr Darnley, then aged 26, was assaulted in the street, struck over the head by an unknown assailant. He attended A&E later that day with his friend, Mr Tubman. Upon arrival, Mr Darnley gave his details to the A&E receptionist and informed her that he had been assaulted by being struck over the back of the head and that he thought that he had a head injury, he was feeling very unwell and his head was hurting. Both Mr Darnley and Mr Tubman made it clear to the receptionist that Mr Darnley was really unwell and needed urgent attention. The receptionist then informed them that it would be a four to five hour wait before he would be seen. Mr Darnley responded that he could not wait that long as he felt as if he were about to collapse. The receptionist replied that if he did collapse then he would be treated as an emergency.

Having waited for 19 minutes, Mr Darnley decided to leave as he was feeling too unwell to remain. He left without informing the receptionist or any other member of staff. He then headed to his mother’s house, where he went to bed. Shortly after, he became distressed and an ambulance was called. It later transpired that Mr Darnley had had a large extradural haematoma, for which he subsequently had neurosurgery. Unfortunately, he has suffered permanent, severe and disabling brain damage.

The Supreme Court’s view and what happened below

The trial judge found as a fact that if Mr Darnley had been told he would be seen within 30 minutes by a triage nurse, (as admitted by the receptionists to be usual practice and, indeed, what they would usually tell patients), he would have stayed and he would have been seen, after which he would have waited and his later collapse would have occurred in the hospital setting.

The trial judge also found that Mr Darnley’s decision to leave A&E was made, in part at least, on the basis of the information provided to him by the receptionist that was inaccurate or incomplete. It was further found that that decision was reasonably foreseeable, and that if Mr Darnley had collapsed whilst at hospital then he would have undergone surgery earlier and would have made a very near full recovery.

However, both the trial judge and the Court of Appeal considered that the harm suffered in this case fell outside the scope of any duty or obligation owed by the Trust through its reception staff. Neither court considered it fair, just and reasonable to impose a duty on Trust receptionists not to provide inaccurate information about waiting times.

That terminology of “fair, just and reasonable” traditionally falls squarely within an analysis of whether or not to recognise a new duty of care. The Supreme Court, however, took a different view. Lord Lloyd-Jones, giving judgment on behalf of the Court, held that the instant case fell squarely within an established duty of care, that of a casualty department to prospective patients who present themselves as being ill or injured. He held that,

“the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury.” (at [16])

Paragraphs 14 to 23 of Lord Lloyd-Jones’ judgment addressed the proper approach to take when considering the existence of a duty of care. He highlighted how Caparo has been widely misunderstood and misused. It is not a universal ‘go to’ test for the existence of a duty of care. Rather, the proper approach remains an incremental one. Courts must first ask whether this situation falls within an already established category whereby a duty of care has been held to exist, considering the concept, not just the factual scenario. If not, ask if the situation is so close as to enable an analogy to be drawn. Only if the answer to either or both of those questions is no should the court fall to consider the three-stage test given in Caparo.

It was further held that this established duty of care “is owed by the hospital trust and it is not appropriate to distinguish, in this regard, between medical and non-medical staff” (at [17]). Where the Court did consider that distinction relevant, however, was in determining whether there had been a negligent breach of duty. It is this that then forms part of the protection against any “floodgates” arguments. At [22] the Court made it clear that courts should have no tolerance for unfounded “floodgates” arguments, holding,

There is no reason to suppose that the factual context of an A & E department is likely to give rise to any unusual evidential difficulties. The burden of proof of the provision of misleading information will be on the claimant. Hospital staff will be able to give evidence as to their usual practice. So far as substantive liability is concerned, the requirements of negligence and causation will remain effective control factors. It is undoubtedly the fact that Hospital A & E departments operate in very difficult circumstances and under colossal pressure. This is a consideration which may well prove highly influential in many cases when assessing whether there has been a negligent breach of duty.”

Analysis

There isn’t much in here for defendants, except for the recognition that the circumstances and pressure under which A&E departments operate will be a major factor in considering breach. Further, non-medical staff will only be held to the standard of “an averagely competent and well-informed person” performing that function (at [25]).

The Court’s approach to Caparo and duties of care is worth noting. It is clear now that established duties are to be viewed conceptually, not simply on their particular factual scenarios. The Court acknowledged that there was no case recognising a duty of care involving a non-medical member of staff, yet nonetheless this was not a new category of duty.

Contributory negligence was not dealt with in the judgment and it may be that submissions were not made on the point. However, whilst duty and breach were established on these facts, it may be open to defendants to argue on similar facts that the claimant was contributorily negligent in walking out of A&E when he did. No doubt this is an argument that will be run before long.

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