Adam Weitzman QC and Bilal Rawat acted for the Ministry of Justice in its successful defence of a clinical negligence claim which relied on the existence of a non-delegable duty of care and vicarious liability (Benius Razumas v Ministry of Justice [2018] EWHC 215 (QB)).

The Claimant complained of negligent failures by different prison GPs to diagnose a lump on his leg and to refer him for treatment. The delay meant an otherwise avoidable above the knee amputation. The NHS had (from 2003) the statutory responsibility for commissioning prison healthcare and provided that care either directly or through contracts with private providers. The Defendant was not a party to such contracts. The Claimant chose not to sue the entities or individuals who treated him while in prison but the Defendant alone.

Having heard detailed argument on the relevant legislative and regulatory framework and the contractual relationships in place, Cockerill J held that the Defendant had a limited direct duty to ensure access to healthcare and to maintain oversight of the systems in place and to raise and seek solutions to known problems. On the facts, the Defendant had not breached its direct duty. Further, applying the relevant law, the Defendant did not owe a non-delegable duty of care nor was it vicariously liable for the acts of prison healthcare providers. There was a distinction between the custodial function managed by the Defendant and the healthcare function controlled by others including that the Claimant had to consent to medical treatment.

The judge also considered that had it been necessary the claim would have been dismissed for fundamental dishonesty. In reaching that view, she adopted a three step approach to the application of section 57 of the Criminal Justice and Courts Act 2015. Something more than the loss of compensation was needed to make out substantial injustice. A late claim for breach of Article 3 was also rejected as being timed barred and unarguable.

The decision highlights the importance of identifying the correct defendants and the need for care in arguing the existence of a non-delegable duty or vicarious liability. It indicates that the courts are willing to apply the statutory provision on fundamental dishonesty strictly.

You can read the judgment here and a detailed note prepared by Adam and Bilal on the judgment here. For further information please contact Paul Eeles or Mark Waterson.


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