Date: Fri, 13 Oct 2006 09:14:53 +0100

From: Steve Hedley

Subject: Employer's claim for injury to employee

I'm not sure why Ken says '????'. The doctor's job in case 1 is primarily to benefit the patient, whereas the job in case 2 is primarily to benefit the employer. There are certainly ambiguities in who, precisely, the client is - I share Neil's doubts whether the court should have denied a contract between doctor and employer in El-Safty - but the allocation of the main duty isn't very surprising. This leaves the White v. Jones dilemma, of whether allowing another party to sue can be said to interfere with the main duty. Obviously there is a potential for conflict - in some cases, what is in the player's interests isn't in the employer's - but with the majority in White I'm not sure that should be used to deny liability in a case where, on the facts, there is no conflict.

Kapfunde v Abbey National plc is at [1999] ICR 1: headnote follows. It would be curious to make duty turn on whether they had met face-to-face, especially as one issue on breach of duty may well be whether the doctor should have insisted on such a meeting.

Steve Hedley
Faculty of Law, University College Cork

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[COURT OF APPEAL]

KAPFUNDE v. ABBEY NATIONAL PLC. AND ANOTHER

1998 Feb. 26, 27; March 25
Kennedy, Millett and Hutchinson L.JJ.

Negligence - Duty of care to whom? - Occupational health adviser - General practitioner retained by employer to assess job applicant's medical questionnaire - Advising applicant unsuitable for permanent employment - Whether acting under contract of service - Whether owing applicant duty of care

The plaintiff applied for a permanent post with the first defendant, for whom she already worked part-time. She completed the first defendant's standard confidential medical questionnaire and indicated that she suffered from sickle cell anaemia and chest infections. The first defendant referred the questionnaire to the second defendant, a general practitioner, who, pursuant to an annual retainer, did work for the first defendant as occupational health adviser. The second defendant assessed the questionnaire and advised that the plaintiff's medical history showed that she was likely to have a higher than average absence level. The first defendant accepted the advice and declined to give the plaintiff the vacant permanent position.

The plaintiff commenced proceedings against the defendants in the county court for damages for, inter alia, negligence. The judge dismissed the claim against both defendants.

On appeal by the plaintiff:-

Held, dismissing the appeal, that there was no ground for interfering with the judge's conclusion that the second defendant was engaged by the first defendant under a contract for services when assessing medical questionnaires completed by prospective employees; that, consequently, no liability could attach to the first defendant for the second defendant's actions; that the second defendant was under an obligation to the first defendant to exercise reasonable skill and care when giving advice, based on the information supplied in the questionnaires, on a job applicant's suitability for employment, but had no obligation to the prospective employee with whom she had no special relationship from which a duty of care could be derived; and that, in any event, had a duty of care existed, on the evidence, the second defendant had exercised the required degree of skill and care to be expected of an ordinary competent occupational health adviser.

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