Darnley v Croydon Health Services NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lord Reed,Lady Hale,Lord Lloyd-Jones,Lord Hodge |
| Judgment Date | 10 October 2018 |
| Neutral Citation | [2018] UKSC 50 |
| Court | Supreme Court |
| Date | 10 October 2018 |
[2018] UKSC 50
Lady Hale, President
Lord Reed, Deputy President
Lord Kerr
Lord Hodge
Lord Lloyd-Jones
Appellant
Simeon Maskrey QC
Jeremy Pendlebury
(Instructed by Russell-Cooke LLP)
Respondent
Philip Havers QC
Bradley Martin QC
Ruth Kennedy
(Instructed by Capsticks Solicitors)
Heard on 7 June 2018
(with whom Lady Hale, Lord Reed, Lord Kerr and Lord Hodge agree)
The appellant, Michael Mark Junior Darnley, who was then aged 26, was assaulted in the late afternoon of 17 May 2010 when he was struck on the head by an unknown assailant in south London. He later telephoned his friend Robert Tubman. The appellant told Mr Tubman about the assault and complained that he had a headache and that it was getting worse. Mr Tubman was sufficiently concerned that he drove the appellant to the Accident and Emergency Department (“A & E department”) at Mayday Hospital, Croydon which was managed by the respondent NHS Trust. It was noted in the clerking record that the appellant attended at 20:26 on 17 May 2010.
Mr Tubman accompanied the appellant at the A & E department and was a witness to the conversation with the female A & E receptionist. The trial judge accepted Mr Tubman's account of the conversation which took place. The appellant provided his personal details. He informed the receptionist that he had been assaulted by being struck over the back of the head and he thought that he had a head injury, that he was feeling very unwell and that his head was hurting. The receptionist did not have a helpful attitude and was more concerned about how the injury occurred. She asked the appellant if the Police were involved. The appellant and Mr Tubman both told the receptionist that the appellant was really unwell and they were worried that he had a head injury and needed urgent attention. The receptionist told the appellant that he would have to go and sit down and that he would have to wait up to four to five hours before somebody looked at him. The appellant told the receptionist that he could not wait that long as he felt as if he was about to collapse. The receptionist replied that if the appellant did collapse he would be treated as an emergency.
The identity of the A & E receptionist who spoke to the appellant and Mr Tubman is not known, save that it must have been one of the two receptionists on duty at that time, namely Valerie Ashley or Susan Reeves-Bristow. Neither had any recollection of the conversation that took place and each was able to give evidence only of her usual practice.
The appellant sat down with Mr Tubman in the waiting area of the A & E department. However, the appellant decided to leave because he felt too unwell to remain and he wanted to go home to take some paracetamol. The judge found that the appellant and Mr Tubman left after 19 minutes at 20:45. Neither informed the receptionist or told anyone else that they were leaving. However, Mrs Reeves-Bristow and Mrs Ashley noticed that they had left and they told the receptionist taking over on the next shift to look out for the appellant because they were concerned that a patient with a reported head injury had left the A & E department.
Mrs Ashley and Mrs Reeves-Bristow gave evidence as to their usual practice when a person with a head injury asked about waiting times. Mrs Ashley said that she would tell them that they could expect to be seen by a triage nurse within 30 minutes of arrival and it would be quite incorrect to tell them that they would have to wait up to four to five hours before being seen. Mrs Reeves-Bristow stated that she would tell them that the triage nurse would be informed and they would be seen as soon as possible.
Mr Tubman drove the appellant to his mother's house, some 13 minutes' drive away, arriving shortly after 21:10. The appellant went to bed. At about 21:30 that evening the appellant became distressed and attracted the attention of his sister by banging on the wall of his bedroom. An ambulance was called at 21:44. The ambulance was re-routed and a second ambulance was called arriving at his mother's home at 22:05. The appellant was taken by ambulance back to the A & E department at Mayday Hospital. During the journey he became hypertensive, his GCS was recorded as 9/15 and he projectile vomited. He arrived at the Mayday Hospital A & E department at 22:38. A CT scan (reported at 00:15 on 18 May 2010) identified a large extra-dural haematoma overlying the left temporal lobe and inferior parietal lobe with a marked midline shift. The appellant was intubated and ventilated and transferred from Mayday Hospital by ambulance into the care of neurosurgeons at St George's Hospital, Tooting arriving at 00:55. He was transferred to the operating theatre at 01:00 and underwent an operation for the evacuation of the haematoma.
Unfortunately, the appellant has suffered permanent brain damage in the form of a severe and very disabling left hemiplegia.
The appellant brought proceedings against the respondent NHS Trust. His pleaded case included an allegation of breach of duty by the non-clinical reception staff concerning the information he was given about the time he would have to wait before being seen by a clinician and also a failure to assess the appellant for priority triage.
The trial took place on 25–27 April 2015 before HHJ Robinson, sitting as a judge of the High Court. He gave judgment on 31 July 2015: [2015] EWHC 2301 (QB).
The judge made the following findings of fact and came to the following conclusions of law.
(1) The appellant did not fall into the category of patients who should have been fast tracked under the priority triage system. His presentation was not such as to have alerted the reception staff to the presence of a condition so serious that it was immediately necessary to bring it to the attention of the nurse.
(2) The fact that the appellant was not seen by a triage nurse during the 19 minutes he was present at the hospital did not amount to a breach of duty or cause any loss.
(3) If the appellant had been told that he would be seen within 30 minutes he would have stayed and would have been seen before he left. He would have been admitted or told to wait. He would have waited and his later collapse would have occurred within a hospital setting.
(4) The appellant's decision to leave the A & E department was, in part at least, made on the basis of information provided by the receptionist which was inaccurate or incomplete.
(5) It was reasonably foreseeable that some patients do leave A & E departments without being seen or treated and that, in such cases, harm may result. It is reasonably foreseeable that someone who believes it may be four or five hours before they will be seen by a doctor may decide to leave, in circumstances where they would have stayed if they believed they would be seen much sooner by a triage nurse.
(6) Had the appellant suffered the collapse at around 21:30 whilst at the Mayday Hospital he would have been transferred to St George's Hospital and would have undergone the surgery earlier. In those circumstances he would have made a very near full recovery.
(7) Receptionists in A & E departments are not under a duty to guard patients against harm caused by failure to wait to be seen, even if such harm could, as a matter of fact in the individual case, be prevented by the provision of full and accurate information about waiting times.
(8) The harm suffered in this case was outside the scope of any duty or obligation owed by the respondent by its reception staff.
(9) It would not be fair, just and reasonable to impose liability upon the respondent for harm arising as a result of the failure by the receptionist staff to inform the appellant of the likely waiting time to be seen by a triage nurse.
(10) The connection between the alleged inadequacies of the information provided and the harm suffered was broken because the decision to leave was one that was ultimately the decision of the appellant.
The appellant appealed to the Court of Appeal (Jackson, McCombe and Sales LJJ): [2018] QB 783. The appeal was dismissed by a majority (McCombe LJ dissenting) on the ground that neither the receptionist nor the health trust acting by the receptionist owed any duty to advise about waiting times, alternatively the damage was outside the scope of any duty owed, alternatively there was no causal link between any breach of duty and the injury. Jackson LJ considered that the giving of incorrect information by the receptionist was not an actionable mis-statement. When she told the appellant that he would have to wait for up to four or five hours, she was not assuming responsibility to the appellant for the catastrophic consequences which he might suffer if he simply walked out of the hospital. Nor did he consider that it was fair, just and reasonable to impose upon the receptionist, or the trust acting by the receptionist, a duty not to provide inaccurate information about waiting times. To do so would add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts (at para 53). Moreover, even if the receptionist were in breach of duty by giving incorrect information to the appellant, the scope of that duty could not extend to liability for the consequences of a patient walking out without telling staff that he was about to leave (at paras 56–57). The appellant should accept responsibility for his own actions.
In a concurring judgment, Sales LJ considered that, whether what had occurred was a failure to provide information or the provision of inaccurate information, no relevant duty of care would arise (at para 83). In his view, the fair, just and reasonable view was...
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