Lillian Darby (Administratrix of the estate of Lee Mark Rabbetts (Deceased) (Claimant/Appellant) v Richmond on Thames London Borough Council

JurisdictionEngland & Wales
JudgeLady Justice Thirlwall,Lady Justice Sharp,Lady Justice Black
Judgment Date11 April 2017
Neutral Citation[2017] EWCA Civ 252
Docket NumberCase No: 2015/1289
CourtCourt of Appeal (Civil Division)
Date11 April 2017

[2017] EWCA Civ 252

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

HHJ MCKENNA

HQ15X00702

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Black

Lady Justice Sharp

and

Lady Justice Thirlwall

Case No: 2015/1289

Between:
Lillian Darby (Administratrix of the estate of Lee Mark Rabbetts (deceased)
Claimant/Appellant
and
Richmond on Thames London Borough Council
Defendant/Respondent

Mr Charles Utley (instructed by Sinclairs Law) for the Claimant/Appellant

Mr Paul Stagg (instructed by Clyde & Co LLP) for the Defendant/Respondent

Hearing date: 8 th March 2017

APPROVED JUDGMENT

Lady Justice Thirlwall
1

This is an application for permission to appeal an order by HHJ McKenna sitting as a High Court Judge striking out the applicant's Particulars of Claim pursuant to CPR 3.4 (2)(a) as disclosing no reasonable grounds for bringing the claim and granting summary judgment to the respondent pursuant to CPR 24.2.

2

HHJ McKenna refused permission to appeal. A further application for permission was refused on the papers by Tomlinson LJ and renewed orally before the Senior President of Tribunals, who directed that the application be listed before the full court with the appeal to follow if permission were granted.

3

We heard the oral submissions of Mr Utley on behalf of the applicant and have considered his skeleton argument. We also heard from Mr Stagg who had attended in light of the direction that the appeal should follow on.

Facts

4

The facts are tragic. The applicant is the administrator of the estate of her late son Lee Rabbetts. He died at the age of 36 on 23 rd January 2011. In April 2010 he was diagnosed with acute myeloid leukaemia. In August 2010 he underwent a bone marrow transplant, immunosuppressant treatment and chemotherapy at the Royal Marsden Hospital. Shortly after that he went to live with his mother in housing rented from the respondent council in its capacity as a Local Housing Authority under the Housing Act 1996. Also living there were his sister and her young baby. On 21 st December 2010 his sister and baby went to the GP who diagnosed they were both suffering from infections. On 1 st January 2011 Mr Rabbetts developed a dry cough. On 2 nd January he was admitted to the Royal Marsden with respiratory sepsis. He died on 23 rd January. For the purposes of this application I accept that he died as a result of acquiring an infection from either his sister or the baby.

5

The Particulars of Claim set out the history succinctly together with the basis of the claim:

"3. In April 2010 Mr Rabbetts was diagnosed as suffering with acute myeloid leukaemia. In August 2010 he underwent a bone marrow transplant operation, immunosuppressant treatment and chemotherapy at the Royal Marsden Hospital. As a result of that treatment he was at significant risk of suffering infections which could be fatal.

4. In April 2010 Mr Rabbetts was discharged from hospital to the claimant's home in Teddington, Middlesex. Also living there were his sister and her baby.

5. In August 2010 Mr Rabbetts' GP wrote to the defendant asking that he should be re-housed because his health was at risk while he was living with his sister and her baby.

6. In September 2010 Mr Rabbetts' formal application for housing was made to the defendant.

7. In a letter to the defendant dated 5 th October 2010 Doctor Bronwen Shaw, a Consultant Haematologist at the Royal Marsden, explained that it would be disastrous if Mr Rabbetts were to pick up an infection. Living with his sister's baby made his environment "very dangerous".

8. In a letter to the defendant dated 6 th October 2010 a health visitor repeated the request for Mr Rabbetts to be re-housed.

9. In a further letter to the defendant dated 30 th November 2010 Dr Shaw explained once more why it was essential for Mr Rabbetts to be re-housed.

10. In a letter to Mr Rabbetts dated 10 th November 2010 the defendant informed him that he had reached the points threshold to be considered for approval for accommodation.

11. In a letter to Mr Rabbetts dated 16 th December 2010 the defendant informed him that his application for housing had been approved, but that didn't mean he would re-housed in the near future. He was told he had a points total of 285. He had been awarded only 50 points for medical needs.

12. In a letter to Mr Rabbetts dated 5 th January 2011 the defendant informed him that 0–50 points could be given for medical problems and that exceptionally 200 priority points could be given where a life threatening condition is seriously affected by an applicant's housing. The defendant, despite the medical evidence with which it had been supplied, took the view that he was only entitled to 50 points.

13. The defendant's Housing Allocation Policy provided, at paragraph 5.3 that a maximum of 200 points could be awarded for "persons whose condition is life threatening and their existing accommodation is undermining their health". The defendant knew, or should have known, that Mr Rabbetts plainly came within that category.

14. On 20 th December 2010 Mr Rabbetts was seen at the Royal Marsden with no signs of infection. That was the only relevant time at which he left his mother's home (he was terrified of picking up infections).

15. On 21 st December 2010 Mr Rabbetts' sister and baby were both seen by the GP and found to have infections.

16. On 2 nd January 2011 Mr Rabbetts had developed a dry cough. He rang the Royal Marsden for advice.

17. On the night of 3 rd January 2011 he was admitted to hospital with respiratory sepsis. He remained in hospital until his death from influenza on 23 rd January 2011".

The claim

6

Mr Utley submits that the case should not have been struck out at this early stage. Where the law is developing, cases should be decided on the facts, not on assumed facts. By a "developing area of the law" what Mr Utley really means is that a development in the law would be necessary for this claim to succeed. In either event, given that the judge approached the case on the basis that every allegation of fact made by the applicant would be proved the applicant's case could not have been more favourably considered. There was no risk of prejudice to either side. It was clearly appropriate to proceed on the basis of the pleadings.

7

Mr Utley submits, as he did before HHJ McKenna, that the special and highly unusual facts of this case gave rise to a common law duty of care owed by the respondent to Mr Rabbetts. That duty was to take reasonable care to evaluate his application for housing in accordance with its statutory obligations and its own policy so as to avoid causing him injury. This is a development of the duty pleaded in the Particulars of Claim (see paragraph 5 above) but nothing turns on this.

8

Mr Utley's principal ground of appeal is that the judge failed to take into account obiter dicta of Lord Scott in Jain v Trent SHA [2009] UKHL 4 to which he had referred at some length in argument. In that case the House of Lords held that where the exercise of statutory functions to assist one individual (here people who lived in a care home) might prejudice another (the owner of the care home) the other could not be owed a...

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2 cases
  • (1) CN v Poole Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 December 2017
    ...assumption of responsibility on the part of the Defendant (see Darby v Richmond-upon-Thames LBC [2015] EWHC 909 (QB), paragraph 26 and [2017] EWCA Civ 252, paragraph 18). Where rights of review or appeal in relation to official action are conferred by the relevant statutory scheme or by th......
  • Poole Borough Council v GN
    • United Kingdom
    • Supreme Court
    • 6 June 2019
    ...was an insufficient basis to satisfy the approach of the Court of Appeal in X v Hounslow London Borough Council and Darby v Richmond-upon-Thames London Borough Council [2017] EWCA Civ 252. I have also come to the conclusion that the particulars of claim do not provide a basis on which an a......

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