PROVING THINGS 129: IMPATIENT PATIENT DID NOT BREAK THE CHAIN OF CAUSATION: SUPREME COURT DECISION TODAY
The Supreme Court decision today in Darnley -v- Croydon Health Service NHS Trust UKSC 50 marks a development in the law of negligence, and also in relation to proving causation.
“Far from constituting a break in the chain of causation, the appellant’s decision to leave was reasonably foreseeable and was made, at least in part, on the basis of the misleading information that he would have to wait for up to four or five hours before being seen by a doctor”
The claimant was injured and attended A&E. The receptionist told the claimant that he would have to wait 4-5 hours. The claimant waited in reception at A&E for 19 minutes and then left without informing the receptionist. Later that day the claimant suffered serious symptoms and suffered permanent brain damage. The trial judge found that if the claimant had stayed in the hospital he would have been treated appropriately and made a more or less complete recover.
THE CLAIM: FAILED AT FIRST INSTANCE AND THE COURT OF APPEAL
The judge at trial found, however, that there was no negligence, this decision was upheld (by a majority) in the Court of Appeal.
THE DUTY OF CARE
Lord Lloyd-Jones gave the judgment, essentially, of the entire court. He held that there was a duty of care in these circumstances.
15. First, we are not here concerned with the imposition of a duty of care in a novel situation. The common law in this jurisdiction has abandoned the search for a general principle capable of providing a practical test applicable in every situation in order to determine whether a duty of care is owed and, if so, what is its scope. (Caparo Industries plc v Dickman  2 AC 605 per Lord Bridge at p 617; Michael v Chief Constable of South Wales Police (Refuge intervening)  AC 1732 per Lord Toulson at para 106; Robinson v Chief Constable of West Yorkshire Police  2 WLR 595 per Lord Reed at para 24). In the absence of such a universal touchstone, it has taken as a starting point established categories of specific situations where a duty of care is recognised and it has been willing to move beyond those situations on an incremental basis, accepting or rejecting a duty of care in novel situations by analogy with established categories (Caparo per Lord Bridge at p 618 citing Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1, at pp 43-44). The familiar statement of principle by Lord Bridge in Caparo at pp 617-618 in which he refers to the ingredients of foreseeability of damage, proximity and fairness does not require a re-evaluation of whether those criteria are satisfied on every occasion on which an established category of duty is applied. In particular, as Lord Reed demonstrated in his judgment in Robinson (at paras 26, 27), where the existence of a duty of care has previously been established, a consideration of justice and reasonableness has already been taken into account in arriving at the relevant principles and it is, normally, only in cases where the court is asked to go beyond the established categories of duty of care that it will be necessary to consider whether it would be fair, just and reasonable to impose such a duty. The recent decision of the Supreme Court in James-Bowen v Comr of Police of the Metropolis  1 WLR 402 was such a case and it was necessary for the court on that occasion to consider whether extension by analogy of established categories of duty was justified and the policy implications of such an extension. By contrast, Robinson itself involved no more than the application of a well-established category of duty of care and all that was required was the application to particular circumstances of established principles.
16. In the present case Jackson LJ observed (at para 53) that to hold the respondent responsible would create “a new head of liability for NHS health trusts”. To my mind, however, the present case falls squarely within an established category of duty of care. It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take reasonable care not to cause physical injury to the patient (Barnett v Chelsea and Kensington Hospital Management Committee  1 QB 428, per Nield J at pp 435-436). In the present case, as soon as the appellant had attended at the respondent’s A & E department seeking medical attention for the injury he had sustained, had provided the information requested by the receptionist and had been “booked in”, he was accepted into the system and entered into a relationship with the respondent of patient and health care provider. The damage complained of is physical injury and not economic loss. This is a distinct and recognisable situation in which the law imposes a duty of care. Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury. While it is correct that no authority has been cited in these proceedings which deals specifically with misleading information provided by a receptionist in an A & E department causing physical injury, it is not necessary to address, in every instance where the precise factual situation has not previously been the subject of a reported judicial decision, whether it would be fair, just and reasonable to impose a duty of care. It is sufficient that the case falls within an established category in which the law imposes a duty of care
17. Secondly, this duty of care is owed by the hospital trust and it is not appropriate to distinguish, in this regard, between medical and non-medical staff. In the specific context of this case, where misleading information was provided as to the time within which medical attention might be available, it is not appropriate to distinguish between medically qualified professionals and administrative staff in determining whether there was a duty of care. That distinction may well be highly relevant in deciding whether there was a negligent breach of duty; there the degree of skill which can reasonably be expected of a person will be likely to depend on the responsibility with which he or she is charged. In the present circumstances, however, questions as to the existence and scope of a duty of care owed by the trust should not depend on whether the misleading information was provided by a person who was or was not medically qualified. The respondent had charged its nonmedically qualified staff with the role of being the first point of contact with persons seeking medical assistance and, as a result, with the responsibility for providing accurate information as to its availability.
26. Responding to requests for information as to the usual system of operation of the A & E department was well within the area of responsibility of the receptionists. The two receptionists on duty at the material time were both aware that the standard procedure was that anyone complaining of a head injury would be seen by a triage nurse and they accepted that the usual practice was that such a patient would be told that they would be seen by a triage nurse within 30 minutes of arrival (Mrs Ashley) or as soon as possible (Mrs Reeves-Bristow). No reason has been suggested as to why the appellant was not told of the standard procedure. The hospital was operating within the acceptable range of triage timing agreed by the experts and the actual position was that the appellant, had he remained, would have been seen by a triage nurse within 30 minutes because he was complaining of a head injury. It is not unreasonable to require that patients in the position of the appellant should be provided on arrival, whether orally by a receptionist, by leaflet or prominent notice, with accurate information that they would normally be seen by a triage nurse within 30 minutes.
27. However, instead the appellant was simply told that he would have to wait for up to four or five hours to see a doctor. That information was incomplete and misleading. The Chief Executive of the respondent described it in his letter to the appellant dated 23 March 2011 as “completely incorrect”. The appellant was misinformed as to the true position and, as a result, misled as to the availability of medical assistance. The trial judge made the critical finding that it was reasonably foreseeable that a person who believes that it may be four or five hours before he will be seen by a doctor may decide to leave. In the light of that finding I have no doubt that the provision of such misleading information by a receptionist as to the time within which medical assistance might be available was negligent.
The crucial point on causation here is that, rather than the claimant’s decision to leave A&E being a break in the chain of causation, it was a decision caused by the claimant being given negligent information.