I was also surprised by the UKSC’s reliance on proximity and the quasi-resurrection of the Caparo “test”.

 

Since I have been teaching Adv Torts this semester and we have been comparing Duty “formula”, I was thinking about how the Australian salient features approach would answer the case. It seemed to me that there would be liability as Lord Burrows suggests (as there was in Hill v, Van Erp) since the autonomy of the doctor would not interfered with (he/she already owes a duty to the patient) and the family members are vulnerable to the negligence of the doctor.

 

Sometimes where you start, determines where you finish.

 

Sincerely,

 

 

 

As two people have written to express surprise at my endorsing this decision, I should add that I endorse the result, and not all the reasoning of the majority.

 

For example, we are told:

 

“the general rule that the law does not grant remedies for the effects - whether psychological, physical or financial - of the death or injury of another person.”

(at [48], see also [4] and [140]).

 

That can’t be right. If I negligently break the leg of a mother carrying her child, causing her to fall and injure the infant, is there no claim by the child for their foreseeable injuries because they are the effect of the injury of another person? Does it matter whether the initial leg breaking was an “accident” or not?

 

That statement of “general principle” is just a mistake. Distinctions like that are only of benefit to torts examiners looking for ludicrous points with which to trip up hapless students.

 

Similarly, the resurrection of “proximity”, despite the rejection of the Caparo test that had employed it by the Supreme Court Robinson v Chief Constable of West Yorkshire is a surprise. What other discarded 90s idea will make a comeback next? Kylie and Jason?

 

The hospitals had failed to treat someone and the claimants had suffered psychiatric injury when the patient died. That there is no general duty to take steps to protect others had proven decisive in the very last decision of the court in the previous year (HXA v Surrey).

 

Despite the heroic (?) efforts of Lord Burrows ([212]-[223]) I can’t see how the assumption of responsibility by hospital to patient can possibly create a duty owed to their relatives (cf BNL v Playboy Club).

 

I realise that courts are the prisoners of how counsel choose to argue the case before them, but this was a straightforward case of non-feasance. If counsel insist on only citing cases narrowly about psychiatric injury, or don’t take important points of first principle, then ultimate appellate courts need to instruct them to go further. Those courts also need to have the collective memory to recall cases that they had decided from a few short years before from related areas.

 

FWIIW, I have uploaded a short note on the case on to SSRN.

 

https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2684360

 

 

 

If you think this area of the law is all about ‘proximity’ (cf. [129]-[130]) (and that somehow an undertaking supplies proximity (at [132])) you will probably be inclined to see McLoughlin/Alcock as an extension rather than a limitation.

 

If you think that, and that physical harm is of the same genus as financial loss (at [130]), and you think no duty in a failure to protect case, then its not hard to say equally no proximity in a misfeasance case either, or that it all turns on social factors or a basket of policy considerations (see [137]-[139]).

 

 

 

Yes. But that is not this case.

 

 

Dear Rob:

 

But your analysis only works in a situation of true nonfeasance (failure to act) not in a situation of misfeasance (acting). So if the Doctor was performing a surgery and was negligent, leading to a gruesome death then there should/could be liability. The fact that there was an undertaking only to the patient would be irrelevant just as the fact that there was only an undertaking by a builder to their employer for the construction of a house would not preclude a claim by a third party injured when the building collapsed on them (since the third party claim is a DvS one, an interference with a primary right through action, rather than a HBvH one)

 

The judgments in Paul v Royal Wolverhampton seem to skirt around that issue or worse perhaps even deny it on some readings.

 

Sincerely,

 

 

Mildly interesting decision on psychiatric injury in Paul v Royal Wolverhampton [2024] UKSC 1.

 

https://www.supremecourt.uk/cases/uksc-2022-0038.html

 

Simplified, in all three cases a doctor or health authority fail to diagnose a life-threatening medical condition, leading to the patient’s death. The claimants are relatives who suffer psychiatric injury as a result of the death.

 

Majority hold (rightly) no duty of care owed.

 

The majority decision is long, but on a quick fisking through, we find the right reason (Lords Leggatt and Rose giving the main substantive judgment, with which Lord Briggs, Sales and Richards agree, with a short concurrence by Lord Carloway) at [138]. Lord Burrows dissents.

 

I do not owe you a duty to protect you from illness. A fortiori I do not owe third parties who might be impacted by your illness a duty of care.

 

If, however, you attend a hospital clinic, a (special) duty of care is assumed towards you. The doctor who treats you comes under a duty to protect you from harm. If you are then sent home and die, when careful treatment would have cured you, the hospital is potentially liable.

 

The question is whether the hospital assumes a duty not only towards the patient but towards third parties who might possibly be impacted?

 

One way of thinking about this is that there would be a contract with the patient if they provided any consideration for the treatment. To whom is that (special) duty owed?

 

And the answer is: to the patient only.

 

Rather oddly, it seems that the case was not argued on this basis (see Lord Burrows [212]).

 

There is muchr more in the judgments than the above but I am doubtful as to whether making it more complex than that assists.

 

RS

 

 

 

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