www.newlawjournal.co.uk | 11 January 2019 LEGAL UPDATE 15

the misleading advice about the likely waiting time, the claimant left. Had he been told to wait, he would have done so, and would have been in hospital when he deteriorated. This would have led to his haematoma being evacuated earlier. Had it been, he would have made a near total recovery.

A ? The defendant argued that receptionists in Accident and Emergency departments are under no duty to guard patients against harm caused by failure to wait to be seen. The trial judge agreed. So did a majority of the Court of Appeal. There was no assumption of responsibility for the Whose duty consequences of not waiting, and it would not be fair, just or reasonable to impose such a duty. of care? Lord Lloyd-Jones, with whom the other members of the Supreme Court It’s time to adopt a more agreed, held that this was wrong. There mature approach to liability, was no legal novelty here. The case fell deepblue4you says Charles Foster squarely within established principles. ‘The in this jurisdiction iStockphoto/

© has abandoned the search for a general principle capable of providing a practical IN BRIEF Facts test applicable in every situation in order ff An NHS Trust as a whole owes a duty The facts are simple enough. The claimant, to determine whether a duty of care is to claimants. This includes a duty to take then aged 26, was struck on the back of owed and, if so, what is its scope….In the reasonable care not to provide misleading the head. He went with a friend to the absence of such a universal touchstone, it information which may foreseeably cause Accident and Emergency Department of the has taken as a starting point established physical injury. defendant’s hospital, and told the receptionist categories of specific situations where a ff Non-clinical staff play a part in the that he felt very unwell, that his head was duty of care is recognised and it has been discharge of this duty. Whether they have hurting, that he was worried that he had willing to move beyond these situations discharged it will depend on what it is sustained a head injury, and that he needed on an incremental basis, accepting or reasonable to expect them to do. urgent attention. The receptionist (the trial rejecting a duty of care in novel situations ff The notion of contributory negligence judge found) told him that he would have to by analogy with established categories’ should not be conflated with the notion of wait four to five hours to be seen by anyone. (at [15]). Where an established category the causation required to establish primary The claimant said that he could not wait that of duty applies, there is no need to ask liability. long because he felt he was about to collapse, afresh whether the three criteria in Caparo but was told by the receptionist that if he did Industries v Dickman [1990] 2 AC 605, he Supreme Court’s latest foray collapse he would be treated as an emergency. [1990] 1 All ER 568 (damage, proximity, into clinical negligence, Darnley The claimant left after 19 minutes of and fairness) are satisfied. Where the v Croydon Health Services NHS waiting because he felt too unwell to stay existence of a duty has previously been T Trust [2018] UKSC 50, [2018] and wanted to go home and take some established, justice and reasonableness All ER (D) 41 (Oct) will be widely cited paracetamol. Neither he nor his friend told have already been taken into account: one —and usually, I expect, for precisely the the receptionist that he was leaving. should not start from first principles each wrong reasons. It will be relied upon After he got home his condition time. It will normally be necessary to ask as authority for the proposition that deteriorated. In fact he had a large extra- whether the imposition of a duty would NHS Trusts, via their administrative dural haematoma over his left temporal be ‘fair, just, and reasonable’ only where staff, owe a duty of care to take and inferior parietal lobes. He was taken to the court is being asked to go beyond the reasonable steps to avoid foreseeable hospital by ambulance, and the haematoma established categories. physical injury to patients, whereas it is was immediately evacuated. He suffered a Here there was no such need. It was well primarily authority for the proposition very severe left hemiplegia. established that bodies in the position of that no new authority to that effect is The usual and proper advice from the the Trust owe a duty to persons presenting needed. In some ways, then, Darnley receptionist would have been to the effect to casualty departments to take reasonable is a legal non-event: it merely re-states that the claimant would be seen by a triage care not to cause physical injury: see some established principles. But it is nurse within 30 minutes of admission. Barnett v Chelsea and Kensington Hospital interesting nonetheless. It shows us what The trial judge found that if the claimant Management Committee [1969] 1 QB 428, the law really thinks of patients and their had been told this he would have stayed, [1968] 1 All ER 1068. This plainly extended autonomy—and is depressing to anyone would have been seenby a triage nurse to a duty to take reasonable care not to who wants to believe that the law is and either admitted or told to wait. It was provide misleading information which coherent and internally consistent. reasonably foreseeable that, having had may foreseeably cause physical injury: see 16 LEGAL UPDATE negligence 11 January 2019 | www.newlawjournal.co.uk

[16]. But in fact the court could do better claimant’s decision to leave the hospital, requires a tectonic event to break it. But (although it need not do better) than to and this finding was inconsistent with the that is not the end of the matter. What resort to Barnett’s general articulation findings of fact (summarised above). ‘Far about contributory negligence? of the ambit of the duty of a casualty from constituting a break in the chain of department. There was a specifically causation, the [claimant’s] decision to Contributory negligence? analogous case in which a relevant duty had leave was reasonably foreseeable and was Contributory negligence was argued at been found to be owed. In Kent v Griffiths made, at least in part, on the basis of the first instance: ‘…it was submitted that in [2001] QB 36, [2000] 2 All ER 474 a call misleading information….’ (at [29]). the event that the claimant succeeded on handler had given misleading assurances The Supreme Court’s conclusions on the issue of liability, I should hold that the that an ambulance would arrive soon. If the existence of a duty, on the question of claimant was in part responsible for the those reassurances had not been given, breach, and on the issue of a novus actus damage he suffered,’ [2015] EWHC 2301 alternative transport could have been used, are wholly unsurprising. But its implicit (QB) at [81]. But there was no adjudication and the delay in obtaining damage-avoiding conclusions on the scope of the claimant’s on this point, apparently because of treatment would have been reduced. There own responsibility to himself are both the judge’s conclusion that the chain of was, said the Court of Appeal in Kent, a duty surprising and disappointing causation had been broken. not to provide this wrong information. Thereafter the notion of contributory The duty owed to the claimant was negligence seems to have been elided with a duty owed by the Trust. In deciding The Canadians the question of whether a novus actus had whether or not a duty was owed (as treat their adult been established. It is, of course, a wholly opposed to deciding whether or not “ distinct issue, and should have been treated the duty had been breached) it was not claimants as grown- as such. The fact that a claimant may have appropriate to distinguish between clinical acted in a reasonably foreseeable way (as in and non-clinical staff. One of the more ups. It is time that this case) does not necessarily mean that he serious of the errors into which the Court of English claimants has acted in a reasonable way. Appeal had fallen was to confuse questions Contributory negligence should be raised pertinent to the breach of duty with were similarly far more often in clinical negligence cases questions pertinent to the issue of whether respected” than it is. That should follow from the or not a duty was owed. picture of patients’ interests and objectives painted in Montgomery et al. There is an Was there a breach of duty? understandable reluctance to delegate In considering the question of breach, General assumptions about patient doctors’ duties to patients, but that concern it was of course important to take into responsibility is amply accommodated by the rest of the account the nature of the task deployed to Over the last 50 years the courts, at least law of breach of duty and causation. hospital receptionists, and the exigencies in clinical negligence cases, have rightly There are few English decisions in of their situation. Patients were entitled truncated medical paternalism and made which there have been findings of to receive care given with the degree of patient autonomy central. This is best contributory negligence in a clinical skill appropriate to the task for which seen in the law relating to liability in negligence context. Pidgeon v Doncaster receptionists were employed. The standard for allegedly inadequate provision of Health Authority [2002] Lloyd’s Rep Med required was that of ‘an averagely information. The patient’s own perspective 130 is a good but rare example in the competent and well-informed person and autonomy interests have incrementally county court, where a patient who had performing the function of a receptionist at been nudged to the centre of the forensic repeatedly ignored reminders to have a department providing emergency services’ stage. Sidaway v Bethlem Royal Hospital a cervical smear test was found to be (at [25]). The receptionist here had plainly Governors [1985] 1 AC 871, [1985] 1 All two-thirds contributorily negligent in her failed to meet that standard. No reasonable ER 643 (which made the Bolam test the claim against the health authority. receptionist would provide such grossly touchstone of liability in consent cases) In Canada contributory negligence misleading information. gave way to a cautious assertion of the has often been successfully invoked: see, priority of patient autonomy in Pearce v for instance, Crossman v Stewart (1977) Causation United Bristol Healthcare NHS Trust [1999] 82 DLR; Zhang v Kan [2003] BCSC 5; In the Court of Appeal, Lord Justice Jackson PIQR 53, and Pearce was followed by the Dumaris v Hamilton (1998) 219 AR 63. It had concluded that, even if he was wrong distinctly incautious Chester v Afshar does justice there to both claimants and about the existence of a duty of care, [2005] 1 AC 134, [2004] 4 All ER 587 defendants. causation was not established because: (plainly wrong, but a useful barometer ‘The scope of that duty cannot extend to of the judicial zeitgeist), and the more Comment liability for the consequences of a patient reasonable Montgomery v Lanarkshire The Canadians treat their adult claimants walking out without telling the staff that Health Board [2015] AC 1430, [2015] 2 All as grown-ups. It is time that English he was about to leave. As the judge said, ER 1031. Patients are now seen (for most claimants were similarly respected. there comes a point when people must purposes) as responsible agents whose The law needs to have a view of human accept responsibility for their own actions. main concern is to be the architects of their responsibility that applies in the same way The claimant was told to wait. He chose own destiny. to questions of the assessment of quantum not to do so. Without informing anyone of Darnley, though, does not see patients as it does to questions of liability. NLJ his decision, he simply walked out of the this way. The dissonance with the main line hospital’ (at [56] –[57]). of authorities is uncomfortable. It could and Charles Foster is a barrister at Serjeants’ Inn This, said the Supreme Court, was should have been different. Chambers, & a Fellow of Green Templeton wrong. It amounted to a finding that the It is quite right that the chain of causation College, University of Oxford (cfoster@ chain of causation had been broken by the was held to be intact. The law rightly serjeantsinn.com).