Being someone who likes fairly clear rules and who has doubts about the wisdom of Patel v Mirza, I rather liked this decision. The idea that you can't claim indemnification for the effects of your own deliberate, even if perhaps understandable, evildoing seems to me a rule both clear and moral. It also makes life a great deal easier for both parties (including here the NHS): you can settle cases after not a great deal of argument with some idea of what the likely result will be.

Andrew

Dear all

Subscribers interested in the effects of Patel v Mirza may wish to skim the Court of Appeal's decision, given today, in Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841, available at http://www.bailii.org/ew/cases/EWCA/Civ/2018/1841.html.

Apologies if what follows is confusing, confused, or both...

D kills relative whilst suffering from physhiatric illness; manslaughter; disinherited; deprived of liberty, etc; Clunis v Camden and Gray v Thames Trains held to apply given that they were materially identical so far as applying public policy went; "considerable caution" needed in dealing with Patel fallout. The effect of that case was dealt with at [77]ff.

On a quick skim, the (very) bare bones seem to be that whilst Lord Toulson's analysis of the principles was couched in general terms, his discussion of proportionality was directed to contract cases ((like Lord Neuberger's conclusion), though perhaps this is to be expected given that this is what the case was about). Neither Clunis nor Gray seemed to the Court of Appeal to have been disapproved in Patel. And Gray contains guidance which might be good for future similar cases (at [90]).

Given the precedent-based approach to the issue, Hall v Herbert and its influence in Patel might not have persuaded the Court of Appeal to make the leap with a tort claim here, even if it had been cited.

Best wishes

Mat

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