Judicial review of Government response to COVID in care homes: imminent hearing in England & significant developments in Scotland

Last November we reported on Mr Justice Linden’s decision to grant permission for judicial review on all grounds of the UK government’s policies and measures which had a bearing on the protection of care homes during the COVID-19 pandemic. The claim, which relates to patient discharge policy in England, will be heard later this month. In respect of Scotland, recently released information by public health authorities appears to acknowledge some important difficulties there in the early part of last year. This blog explores the key issues in both jurisdictions and sets the scene for the (English) judicial review later this month.

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Secondary victims & psychiatric harm: update on appeals in December

In a brief blog in June we noted that two secondary victim claims, both clinical negligence cases, will be considered together by the Court of Appeal in December. We now know that a third clinical case is also involved, again in the context of an allegedly negligent diagnosis followed by a family member witnessing the subsequent onset of harm. This third case is Purchase v Ahmed, a decision of HHJ Lumb last May in which he struck out the claim “not without some considerable regret [because] the circumstances of Mrs Purchase’s case do not come within the parameters of a permissible and actionable secondary victim claim.”

He noted that he was bound by the Court of Appeal’s decision in Taylor v Novo, which is authority for the proposition that the relevant “event” for the purposes of a secondary victim’s claim is the initial accident or negligence and not the later manifestation of harm as witnessed by the family member and which causes psychiatric harm. That separation in time meant that the secondary victim’s claim would fail for want of proximity. HHJ Lumb added that “the only way that Taylor can be overturned as a binding authority on this Court is by a different conclusion being reached by the Supreme Court or by Parliament changing the law. Neither of those appear realistic prospects in the foreseeable future.” It is possible that the outcome of the three cases before the Court of Appeal could alter those prospects and therefore the appeal should definitely be on the radar of insurers and clinical compensators alike.

Written by Alistair Kinley, Director of Policy and Government Affairs at BLM
alistair.kinley@blmlaw.com

X v Kuoni – package travel liability claim to be heard by the Supreme Court

The question in this case is the extent of tour operator liability for acts of employees of its suppliers. The claim arose as a result of the rape of the claimant by an employee of the hotel which had contracted with the defendant tour operator to provide holidays for the latter’s customers.

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