The orthodox answer to this question is no, on the basis that it is the peculiarities of the facts which give rise to the outcome, rather than any new legal approach. In two decisions this week in the tort of negligence, the clinical claim Darnley in the Supreme Court and the vicarious liability claim Bellman in the Court of Appeal, the higher Courts worked from the initial findings of fact and applied the existing law to them to drive different outcomes from those reached in the courts below.
Darnley v Corydon NHS Trust
This clinical negligence claim arose out of a visit to A&E. The claimant was informed by the A&E receptionist (who was not medically qualified) that it could be four to five hours before he would be medically examined. The claimant left A&E around 20 minutes later after being told this. He had sustained a head injury in an assault and his condition deteriorated seriously hours after leaving the hospital. The receptionist had provided incorrect information as he would have been triaged within 30 minutes and allocated to an appropriate treatment pathway. His claim failed at first instance and by 2:1 in the Court of Appeal.
On 10 October the Supreme Court unanimously found in his favour and sent the case to the High Court for assessment of damages. It recognised that while it was not for reception staff (for whom the Trust would be vicariously liable) to provide wider advice or information to patients, nevertheless the Trust was under a duty in the round not to provide misleading information to its patients.
The first instance judge had made a finding of fact that if the claimant had been correctly told he would have been seen in 30 minutes he would have stayed. He also found it was reasonably foreseeable that someone who believes that it may be four or five hours before he will be seen by a doctor would decide to leave.
By looking at what a reasonable person would have done in the circumstances, Lord Lloyd-Jones’s view was the case was really not about the existence or otherwise of a duty owed by non-medical staff but that it actually concerned the issue of breach of an already-established duty. As the claimant’s decision to go was a reasonably foreseeable one, it did not break the chain of causation due to the Trust’s breach (that being providing incorrect information while under a duty not to do so).
Bellman v Northampton Recruitment
The Court of Appeal handed down its decision in Bellman on 11 October, the day after Darnley. The claimant had suffered a head injury from an assault by a director of the defendant firm which happened during a drinks gathering at a second venue following the company’s Christmas Party. The judge had found as fact that there was an insufficient connection between the assault and the director’s area of activity on behalf of the company for it to be held vicariously liable for his actions. He dismissed the claim on that basis, applying the relevant two stage test for vicarious liability confirmed in the 2016 cases Cox v MoJ and Mohamud v Morrisons.
The Court of Appeal dissected this finding of fact on a very subtle basis. Despite it agreeing with the judge that “the unscheduled drinking session was not a seamless extension of the Christmas party” it went on to add it must be seen on the context of the evening’s events and the facts that the director, a Mr Major, organised it, paid for taxis and drinks and discussed business matters in the run up to the assault. Asplin LJ said that:
“In the light of the breadth of his field of activities, NR’s round the clock business and Mr Major’s authority to do things ‘his way’, it seems to me that NR’s employees who took part in the drinking session can have been in no doubt at that stage, that Mr Major was purporting to exercise managerial control over them.”
Thus there was a sufficient factual connection between the assault and the director’s field of activity for the company. If followed as a matter of law (once again, adopting the test in Cox and Mohamud) that Northampton Recruitment should be vicariously liable for the damages flowing from the head injury sustained by the claimant.
Take away points
Both cases do not, of the face of it, change the law. In simplistic terms, a common feature of Darnley and Bellman is the higher court correcting the error made by the court below in applying the existing law to the facts as found.
What these cases appear also to have in common is in the judiciary seeming almost comfortable that the decisions do not risk blurring the boundaries of liability in practice in a troubling manner. The Supreme Court in Darnley appeared relatively sanguine that any sort of floodgates-style argument was over-played:
“… the observations by the majority in the Court of Appeal on the social cost of imposing such a duty of care are misplaced. This is not a new head of liability for NHS health trusts. In any event, I consider that what are said to be the undesirable consequences of imposing the duty in question are considerably over-stated … There is no reason to suppose that the factual context of an A & E department is likely to give rise to any unusual evidential difficulties. The burden of proof of the provision of misleading information will be on the claimant.”
Equally, in Bellman, the very brief closing remarks of Irwin LJ appear to be aimed squarely at calming any perception that the decision might open up swathes of litigation and liability arising from other boisterous social events loosely associated with work:
“I wish to emphasise how unusual are these facts, and how limited will be the parallels to this case … this combination of circumstances will arise very rarely … This case is emphatically not authority for the proposition that employers became insurers for violent or other tortious acts by their employees.”
Despite the cases being finely balanced on their facts, it does seem likely that they will be sought to be argued in and applied to other similar circumstances; Bellman perhaps more so than Darnley given that employers’ liability claims are more numerous than those in clinical negligence. That said, practitioners in both fields may well very not share the judges’ rather relaxed views of the risks involved.
Authored by Alistair Kinley, Director of Policy & Government Affairs