Simeon Maskrey QC and Jeremy Pendlebury appear in the Supreme Court

Simeon Maskrey QC and Jeremy Pendlebury (instructed by Deborah Blythe of Russell-Cooke) represented the Appellant Michael Darnley on Thursday 7th June in his appeal to the Supreme Court from the dismissal of his claim against Croydon Health Services by the Court of Appeal last year.

Mr. Darnley had attended Mayday A&E department having been struck on the head in an assault, and asked to be seen urgently. He was incorrectly told by the A&E receptionist that he would have to wait for up to 4 to 5 hours. In fact, as the receptionist knew, he should have been told that (under the hospital’s head injury protocol) he would be triaged by a nurse within 30 minutes. He waited for 19 minutes and then left to go home to bed, where he collapsed due to the effects of an extra-dural haematoma caused in the assault.

The trial judge found it was foreseeable that patients who are told there would be a 4 to 5 hour wait might leave; and that it was also foreseeable that if they did so they might suffer injury. The trial judge further found that, had the Appellant been told that he would be triaged by a nurse within 30 minutes, he would have remained; and that his decision to leave was contributed to by the incorrect information.

Had the Appellant remained there was no issue that his collapse would have been at the hospital and he would have been treated sooner, avoiding permanent brain injury.

However the trial judge held there was no duty of care upon receptionists with respect to information about waiting times; and that it would not be fair just or reasonable to impose such a duty; and further that in leaving, the Appellant took responsibility for that decision.

The majority of the Court of Appeal agreed with the trial judge in these respects.

Simeon and Jeremy argued in the Supreme Court: –

1. that, given the relationship of hospital and patient, the parties fell into a conventional category of case whereby a common law duty of care not to cause harm was owed by the hospital to the Appellant;
2. given that the relationship fell within that conventional category, there was no requirement for the court to impose the third limb in Caparo that it had to be “fair, just and reasonable” for the duty of care to exist – following Robinson -v- Chief Constable West of Yorkshire Police;
3. even if the third limb were to be applied, there were powerful policy grounds that it was fair, just and reasonable that such duty of care existed given the defendant’s status as an NHS healthcare provider;
4. on conventional principles, the standard of the duty of care was that the receptionist need only take reasonable care to ensure that the information given was accurate: and in this case it was clear that that standard was broken;
5. given that the Appellant’s decision to leave was (as found by the judge) contributed to by the incorrect information, the chain of causation was not broken.

The case has significant implications for A&E departments and patients attending A&E. The Supreme Court’s judgement is expected later this year.

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