Jain v Trent Strategic Health Authority
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Jacob,Lord Justice Wilson |
| Judgment Date | 22 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1186 |
| Docket Number | Case No: A2/2007/0032 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 November 2007 |
[2007] EWCA Civ 1186
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
SIR DOUGLAS BROWN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Jacob and
Lord Justice Wilson
Case No: A2/2007/0032
Mr Colin McCaul QC (instructed by Messrs Eversheds LLP) for the Appellant
Mr Augustus Ullstein QC (instructed by Messrs Barker Gillette LLP) for the Respondents
Hearing date: 19 June 2007
Judgement
THE PRINCIPAL ISSUE IN THIS CASE
The appellant (“Trent”) is the successor in title to the Nottingham Health Authority (“Nottingham”) which was at the material time the registration authority for the purposes of Part II of the Registered Homes Act 1984 (“the 1984 Act”) for nursing homes located in its area. In that capacity, Nottingham had certain powers of intervention, including a power to apply to a magistrate in an emergency for an immediate order for the cancellation of the registration of the proprietor of the nursing home without giving the proprietor any notice. The question at the heart of this appeal is whether the registration authority owed a duty of care at common law to the proprietor of a nursing home whose registration is cancelled under this procedure. It is said that there is a duty of care on the special facts of this case with respect to the investigation that preceded the application to the magistrate and the preparation and disclosure of the matters placed before the magistrate. Sir Douglas Brown, sitting as an additional judge of the Queen's Bench Division, held that the common law imposed a duty of care on Nottingham. That was the principal determination of the judge, and it raises a point of general importance because the relevant statutory power, though now repealed, has been substantially re-enacted in the Care Standards Act 2000 (“the 2000 Act”), s 20. This new section applies not just to nursing homes but to other care homes as defined in s 3 of the 2000 Act, and in addition, children's homes, independent hospitals, independent hospitals in which treatment or nursing is provided for persons liable to be maintained under the Mental Health Act 1983, independent clinics, residential family centres, independent medical agencies, and domiciliary care agencies, nursing agencies, fostering agencies and voluntary adoption agencies (see s 4 of the 2000 Act). For simplicity I shall refer to Trent as if it had at all times been the registration authority under the 1984 Act.
The next part of this judgment contains a summary of the facts and the decision of the judge. Then I will formulate the issues and summarise the reasons for my conclusions. I have taken those issues in reverse order from that in which they were argued, that is, I have taken a shorter issue as to causation first and then the principal issue as to the existence of a duty of care. These two issues are independent of each other and success on either would be sufficient for Trent. After setting out the issues and my conclusions in summary, I then give my reasons for my conclusions. This involves a detailed examination of the case law on the duty of care cited to us and applicable to the situation in this case. I will also describe the relevant statutory scheme and the case law relevant to that scheme. As I explain more fully below, a number of considerations have led me to the conclusion that the judge erred in his conclusion on the existence in law of a duty of care on the part of Trent vis-à-vis the Jains.
THE FACTS AS FOUND BY THE JUDGE
Mr and Mrs Jain were the registered proprietors of a nursing home in Nottingham, subsequently renamed Ash Lea Court. The residents were elderly and infirm persons, often with mental difficulties. In 1996, Mr and Mrs Jain decided to have building works done to Ash Lea Court to upgrade it. They could not afford to close the home while the work was done. The works were expected to take about two years but they were still in progress in the summer of 1998. The works were delayed in part for reasons over which the Jains had no control. Trent made regular inspections. There was an incident in which access to a staircase caused concern and there was a complaint over the death of a resident and an incident in which a resident was slightly injured. However, there were no threats to close the home, and monitoring visits continued as usual. On 22 September 1998, the inspector wrote a letter to Mr and Mrs Jain to record what she had found on her last visit, and seeking information. The inspector stated that further monitoring visits would be made, so there was no suggestion at this stage of any need to close the home.
On 29 September 1998, the head of the inspectorate, Mrs Robertson, visited Ash Lea Court and found some defects that she considered posed a risk to residents such as torn carpeting and the fact that the staff were not properly trained to deal with these risks. This was not this time a routine inspection. Mrs Robertson visited Ash Lea Court in conjunction with police officers investigating a complaint about a fall and an injury which a resident had sustained. Mrs Robertson was concerned about the home for reasons which included concerns as to patient safety. She obtained the consent of her superiors to Trent making an application under s 30 for the cancellation of the Jains' registration. That authorisation was given and an application was duly made to the magistrate.
A statement of reasons, which the judge described as “seriously deficient”, accompanied the application. For instance, it stated that there had been twelve deaths since February 1998 and that seven of these had been reported to the police. The reality was that the police were investigating one death only arising out of the complaint referred to above. The other deaths had been reported to the police because there was an obligation to do so where patients died without seeing a doctor in the fourteen days prior to their death.
The judge found that the decision to make an emergency application without notice to the Jains was unreasonable in the public law sense, ie he considered that no reasonable authority could have come to that decision.
Trent made the application on 30 September 1998 and the magistrate made the order. The home was immediately closed and Trent removed the residents to other accommodation. Mr Jain appealed to the registered homes tribunal (“RHT”). The RHT was highly critical of Trent's decision to apply to the magistrate and of the manner of its application. On 9 February 1999, after a two-day hearing, the RHT, on a submission of no case, allowed the Jains' appeal and ordered that the order for cancellation should cease to have effect. However, the Jains were unable to resuscitate their business. The RHT did not consider whether grounds existed for cancellation of the Jains' registration under the ordinary procedure (see ss 28 and 31 to 34 of the 1984 Act, below).
THE JUDGE'S JUDGMENT
Before the judge, Mr and Mrs Jain contended that the decision to apply for an ex parte order had been made without any justification and was unreasonable in the public law sense. They also argued that the manner in which the application had been made was flawed. The judge held that there was no emergency and no deficiencies at the nursing home that could have justified the making of an application without notice. By the time that the application was made, the building works were near their end.
It was agreed by both leading counsel that the law relating to the liability of public authorities for negligence in the performance of their statutory duties was substantially set out in the judgment of Dyson LJ in Carty v Croydon London Borough Council [2005] 1 WLR 2312 at 2318, where he adopted a summary of the principles applying to the performance by public authorities of their statutory functions given by Hale LJ, as she then was, in A v Essex County Council [2004] 1 WLR 1881:
“Whenever the question of common law duty of care arises in the context of the statutory functions of a public authority there are three potential areas of enquiry: first, whether the matter is justiciable at all or whether the statutory framework is such that Parliament must have intended to leave such decisions to the authorities subject of course to the public law supervision of the courts; second, whether even if justiciable it involves the exercise of a statutory discretion which only gives rise to liability in tort if it is so unreasonable that it falls outside the ambit of the discretion; third, in any event whether it is fair, just and reasonable in the circumstances to impose such a duty of care. The considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them.”
The judge did not analyse the first two questions set out in the passage from the judgment of Hale LJ in Essex set out above because Trent did not contend that matters in issue were non-justiciable. Nor does the judge refer to the decision of this court in Martine v South East Kent Health Authority (1993) 20 BMLR 51, considered below at [75] to [77] and [97] to [99]. In Martine, this court decided, in a manner binding on this court, that the registration authority owed no duty of care to the registered proprietor of a home in the investigation and assessment of a case prior to making of an application under s 30. I will therefore need to consider the extent to which Ma...
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