The answer is sound, but unfortunately the analysis is hindered by the failure to properly and fully distinguish between, on the one hand, cases involving negligent infliction of injury, and on the other, breach of an assumed duty.

 

We get lots of references to “proximity”, as if this is a helpful or meaningful concept which can be used to understand why pure economic loss is recoverable in some cases but not others, or why a duty to render someone better off is sometimes owed and not in others.

I can see that this may partly be a consequence of the way it was argued, and the majority does make some noises about the importance of an assumption at [131]-[133]. But it is also partly a consequence of the fact that two of the key decisions in this area (McLaughlin v O’Brien, Alcock) were decided prior to the “return to orthodoxy” in the late 90s and since. The court had a lot of Lord Wilberforce before them, who of course had only decided Anns v Merton a few years prior to O’Brien.

 

All of this means the Court seems unable to understand why doctors might owe a duty to ‘third’ parties in some cases but not others (see [134]-[135]). Plainly, my partner’s doctor (whom I have never met) does not owe me any assumed duty of care (putting aside some White v Jones extension). But they do owe me a duty not to run me over outside their surgery.

 

Similarly, If they negligently gave my partner medicine, the presence of which in our house poisoned us both, then that is a negligent infliction of injury. If they give her medicine which does not cure her condition and leads to me getting the same illness, but had there been no treatment I would have got sick anyway, that looks like East Suffolk River Catchment v Kent.

 

But without being able to draw that distinction, they have to resort back to policy reasoning at [138] and talk of imposing duties:

 

“Common to all cases of this kind, however, is a fundamental question about the nature of the doctor’s role and the purposes for which medical care is provided to a patient. We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is

reasonably regarded as the nature and scope of their role.”

 

If this is simply a discussion of the default rule then I am content with it. But plainly a doctor can undertake responsibility to a third party, just as any professional can. It is a question of fact, rather than some general duty the law ‘imposes’, as it does in the case of the duty not to negligently injure (or to convert, or to trespass).

 

 

 

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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