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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