Dear Colleagues,

 

The UK Supreme Court has decided another case on the duty of care in Darnley v Croydon NHS Trust [2018] UKSC 50 - https://www.supremecourt.uk/cases/docs/uksc-2017-0070-judgment.pdf.

 

In this case, the claimant suffered a head injury and went to hospital. At Accident and Emergency, he was told by the civilian receptionist that it would be four to five hours before he was seen, whereas the true position was that he would be seen by a triage nurse within thirty minutes. After 19 minutes, the claimant and his friend left and he went home. He then suffered a deterioration in his condition and he was taken to hospital, and he suffered severe disabilities. He sued the hospital in negligence. The first instance judge and the Court of Appeal both rejected the claim.

 

The Supreme Court has unanimously allowed the appeal. Lord Lloyd-Jones gives the judgment. His Lordship holds that this is not a novel situation (at [15]) and there are further observations in line with the Court’s recent case law on the limits of Caparo or any other ‘universal touchstone’. In his Lordship’s view:

 

“This is a distinct and recognisable situation in which the law imposes a duty of care. Moreover, 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. While it is correct that no authority has been cited in these proceedings which deals specifically with misleading information provided by a receptionist in an A & E department causing physical injury, it is not necessary to address, in every instance where the precise factual situation has not previously been the subject of a reported judicial decision, whether it would be fair, just and reasonable to impose a duty of care. It is sufficient that the case falls within an established category in which the law imposes a duty of care.”

 

Nor, says his Lordship, is it appropriate to distinguish between medical and non-medical staff (at [17]).

The Court also takes issue with concerns about the social cost of imposing a duty of care on NHS Trusts in such circumstances; instead such considerations should be dealt with at the breach stage (at [22]). The court also runs through breach and causation and finds them satisfied on the facts.

 

Lord Lloyd-Jones endorses list member Prof James Goudkamp’s case note in the CLJ on the issues.

 

For what it is worth, my view is that this case clearly fits the general trend of recent UKSC decisions on negligence (and tort more broadly), but a lot of weight is being placed on judges in the lower courts correctly identifying what is ‘novel’ (cf James-Bowen v Commissioner of the Metropolitan Police).

 

Best wishes,

James

 

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James Lee

Reader in English Law

The Dickson Poon School of Law

Somerset House East Wing, room SW 1.12
King's College London
Strand
London WC2R 2LS

 

E-mail: james.lee@kcl.ac.uk

 

Tel: +44 (0)20 7848 2363

 

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Out now: Jamie Glister and James Lee, Hanbury & Martin: Modern Equity (21st edition, August 2018)