The Supreme Court delivered judgment today in the appeal by Michael Darnley, represented by Simeon Maskrey QC and Jeremy Pendlebury instructed by Deborah Blythe of Russell-Cooke.
Mr Darnley suffered a head injury in an assault and attended Croydon Health Services NHS Trust’s Mayday Hospital. He was told by a receptionist on arrival that he would be seen within four-to-five hours.
He left the hospital after 19 minutes not knowing that a triage nurse would examine him within 30 minutes of arrival. His condition deteriorated when he later returned by ambulance it was too late to prevent the development of permanent brain damage.
The judgment of the Supreme Court, given by Lord Lloyd-Jones, allowed Mr. Darnley’s appeal and accepted the submissions made on his behalf, holding:
- the factual circumstances of the case came within an existing category of a duty of care between a hospital and a patient; and hence the receptionist at the Mayday hospital owed Mr. Darnley a common law duty of care to give reasonably accurate information as to waiting times;
- that it was negligent of the receptionist to inform Mr. Darnley that he would have to wait for up to 4 to 5 hours before being seen, in the circumstances that the receptionists knew that the correct information was that he could expect to be seen by a triage nurse within 30 minutes;
- on the findings by the trial judge:
- that had Mr. Darnley been given the correct information, he would have remained within the hospital setting; and
- that it was reasonably foreseeable that someone, who had been told that he/she might have to wait 4 to 5 hours before being seen by a doctor, would leave a hospital and might foreseeable suffer an injury in consequence; and
- that Mr. Darnley’s decision to leave the hospital was at least in part made on the basis that he had been told that he would have to wait up to 4 – 5 hours; and
- that Mr. Darnley would have suffered his collapse around 2130 that evening in a hospital setting; and would have been transferred to St. George’s Hospital and would thus undergone surgery sooner, in which case he would have made a very near full recovery,
Causation of damage was therefore established.
The Supreme Court rejected the respondent Trust’s submissions and the judgment of the majority in the Court of appeal (Jackson and Sales LJJ) and held:
- that the factual circumstances were not “novel”; and thus there was no requirement to establish that it was fair just and reasonable to impose a day of care;
- that to impose a duty of care upon the Trust would not add a new head of liability for NHS trusts; and an NHS Trust owed a duty to take reasonable care not to provide misinformation to patients;
- that it was inappropriate, in terms of the imposition of the duty of care, to distinguish between clinical and non-clinical staff;
- that the contention that to impose the duty of care would place an unreasonable social cost upon society at large was misplaced;
- given the trial judge’s findings of fact, Mr. Darnley did not break the chain of causation by deciding to leave the hospital after 19 minutes.
This judgment illustrates some important points: –
- a tendency in some courts to elide breach of duty and scope of duty issues with the concept of a duty of care (as had the majority in the court of appeal) was identified and rejected;
- it will only be necessary for a claimant to establish the third limb of Caparo (“fair, just and reasonable”) where the duty of care contended for is of a novel category;
- the status of an employee of an organisation is not relevant to whether the organisation owes a day of care (as distinct from the status of that employee being a factor to take into account when considering whether there has been a breach of that duty);
- notwithstanding the unique nature of a publicly funded organisation such as the NHS, it does not enjoy any special status in terms of owing common law duties of care;
- causation of damage should be assessed by reference to the breach, not independently of that breach (as the majority in the court of appeal had done, in concluding that Mr. Darnley’s decision to leave had broken the chain of causation).
Click here to read the judgment in full.