Jain v Trent Strategic Health Authority
| Jurisdiction | England & Wales |
| Judge | Sir Douglas Brown |
| Judgment Date | 04 December 2006 |
| Neutral Citation | [2006] EWHC 3019 (QB) |
| Court | Queen's Bench Division |
| Date | 04 December 2006 |
[2006] EWHC 3019 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A
sir Douglas Brown
(sitting As High Court Judge Qb Division)
(1)ashok Jain
(2)nisha Jain
Augustus Ullstein QC (instructed by Barker Gillette, Solicitors) for the Claimants
Cohn McCaul QC (instructed by Eversheds (Newcastle), Solicitors) for the Defendants
Hearing dates: 13.11,2006�17.11.2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Sir Douglas BrownIn this action the claimants who were proprietors of a registered nursing home claim damages for negligence from the Health Authority whose officers applied to a magistrate for an ex-parte order under Section 30 of the Registered Homes Act 1974, which when made had the immediate effect of removal of the residents of the nursing home and its closure,
2. On 4 July 2005 Master Miller directed that there should be a split trial dealing with the issues of liability and causation. The Claimants say in summary that the decision to apply for an urgent ex-parte order was made without any justification, and the manner of application was flawed by the written application.
3. The Defendants deny that they owe the claimants a duty of care. They dispute negligence but also argue that even if they were negligent that would not cause the claimants economic loss.
4. Before coming to the issues, I set out the facts as I find them to be. In 1989 Mr and Mrs Jam bought a substantial house in Nottingham where the business of a Registered Nursing Home was already being carried on, The nursing home specialised in catering for residents who were mentally ill and infirm. Most of them were elderly having an average age of over 80.
5. The claimants re-named the premises Ash Lea Court. The premises were required to be registered under Section l of the Act. The regulating authority acting for the Secretary of State was The Nottingham Health Authority and the current defendants are their successors and inheritors of any liability. The premises were regularly visited by inspectors employed by the Health Authority, These inspectors were experienced nurses with mental health qualifications.
6. Ash Lea Court was recognised by placing authorities such as Local Authority Social Service departments as a home which took residents who were difficult to place elsewhere because of their age and infirmities. The nursing home business was successful. In 1993 the turnover was �582,000 and a net profit of~14 1,000,
7. In 1996 the claimants decided to upgrade the accommodation. Substantial works were planned including the remodelling of all four floors and the installation of a new lift. The building was not designed as a nursing home and these works were necessary to bring the building up to modern standards. More bedrooms were to be provided but the licensed occupancy of 43 would not be exceeded. The claimants object was to reduce multiple occupation. The claimants employed architects whose plans and a short summary of the work were given to the health authority. However, no time scale was given. There were meetings between the claimants, their architects and the inspectors and it was obvious to all that the works would involve inconvenience to the residents. The work was planned to be carried out on a floor by floor basis with residents being moved about the house as required.
8. The Health Authority's' Officers were much concerned about the effect on the elderly and confused residents but made the deliberate decision not to insist on closure or the reduction of numbers during the work. There did come a time in the summer of 1998 when they suggested to the claimants that they should not accept new residents until the work was completed. Mr Jam was quite candid. He was borrowing heavily to carry out this work and he needed the income the residents would produce and he declined to stop admitting new residents. The inspectors at no time translated their concerns about numbers into action by seeking to have the conditions of registration varied, as the Act clearly permitted.
9. The result was that, in most of the regular inspection reports, the ongoing building works and the dirt and dust inevitably created were the subject of adverse comment. Mr Jam, whom I thought was clearly a truthful witness, said in evidence that the original estimate for the completion of the work was two years. This was never put in writing and the lack of firm or reliable time estimates was the subject of legitimate criticism by the inspectors and by Mr McCaul QC QC, Counsel for the Defendants.
10. Like any building project there were delays. Two of these were unavoidable. Firstly, the claimants employed a structural engineer whose work was central to the lift project. Sadly, in November 1997 he died, and some time was taken up finding a successor, Secondly, it was found that the foundations were not sufficiently strong to support the lift and considerable additional work was required. Mr Jam did not assist matters by giving to the inspectors, when pressed, optimistic completion estimates which were not kept to and he accepted giving one estimate for the completion of the lift works when he had not yet ordered the lift from the manufacturers,
11. During the period I am concerned with the Health Authority served two notices under Regulation 15(4) of the Nursing Homes and Mental Nursing Homes Regulations 1984. The first of these was on 14 November 1997, which claimed a failure to comply with specific regulations dealing with fire precautions and fire drills and practices. This notice was served because the Fire Service had received an anonymous complaint as a result of which they had attended at the nursing home and found a number of faults. They informed the Health Authority who issued the notice. Some requirements called for immediate action and some within five days, and there is no doubt the notice was complied with. The second notice was served on 13 July 1998. This arose in the first place from a visit by Mrs Holmes on 7 July. She was very concerned that the building works were affecting the fire safety of the home and contacted the Fire Service.
12. There clearly was a serious problem at the nursing home. There were two staircases in the house one of which was no longer available as a means of escape because it was blocked off, not only by builders rubbish, but by a dustsheet which had been nailed across a passage way. Mr Stephen Jenkins, Assistant Divisional Fire Officer was called to the scene. He had the power to issue a Prohibition Notice which would have brought about the immediate evacuation of the nursing home. Instead he gave instructions to the builders that they had to provide an adequate access route and certain other works. They assured him that would take some three to four hours to achieve and he decided to let the builders go ahead rather than cause inconvenience to the residents. Another Fire Officer returned in the evening to ensure that the work had been carried out and it had. Although the danger had been averted, the notice complained of it and ordered that the work be done, after the event.
13. Mrs Holmes also found that the ground floor accommodation where the building work had advanced to was not suitable and there was a breach of Regulation 12 1 g which required keeping all parts of the home occupied or used by patients in good structural
repair, clean and reasonably decorated. I think it unlikely that by 13 July the ground floor was occupied by any residents although there may have been one there on 7 July. As the regulations only are in operation in respect of occupied parts of the premises it is doubtful whether, as of the date of the notice, there was any breach of the regulation. The Fire Services visited on 2 August in response to a false alarm, followed by a visit on 4 August. Officers were concerned that the staff did not appear to understand the fire alarm system. There were no other visits by any fire officer after this date until the Nursing Home closed.
14. Mrs Holmes made an unannounced visit on 10 August. Her main finding was that the environment for the residents remained poor whilst the building works were in progress. The only requirement made apart from one in relation to physiotherapy was that all staff should receive regular fire safety updates in addition to the statutory fire safety lectures whilst the building work was in progress. There was a recommendation that the proprietors ensure building work "progresses at a satisfactory rate of time". A feature of all the inspections, announced and unannounced, was that the comments of the residents were favourable. The 10 August inspection was no different. The residents'/relatives' comments were "satisfactory".
15. Mrs Holmes made a further visit on 22 September. The purpose of this visit was to monitor the action taken following the requirements and recommendations made at the 10 August inspection. This was an important visit because only 7 days later the decision was taken to apply to close the nursing home as a matter of urgency. There was no adverse comment on fire safety. Relatively minor matters were dealt with. Of the building work she said in her file note "the building work continues to plod on. The lounge is now created plus three bedrooms. The bedrooms required plumbing and electrics. Overall, the ground floor area still looks very much like a building site." This assessment accords with the evidence of Mr Jam, which I accept, that the building work was substantially completed by this time. There remained further work which would take some 3 or 4 months to complete.
16. Mrs Holmes wrote to...
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