Michael Mark Junior Darnley (Appellant / Claimant) v Croydon Health Services NHS Trust (Respondent / Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice McCombe,Lord Justice Sales |
| Judgment Date | 23 March 2017 |
| Neutral Citation | [2017] EWCA Civ 151 |
| Docket Number | Case No: B3/2015/3107 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2017 |
[2017] EWCA Civ 151
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM High Court, Queen's Bench Division
HHJ Robinson
HQ13X02555
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice McCombe
and
Lord Justice Sales
Case No: B3/2015/3107
Simeon Maskrey QC & Jeremy Pendlebury (instructed by Russell-Cooke LLP) for the Appellant
Philip Havers QC & Bradley Martin (instructed by Capsticks LLP) for the Respondent
Hearing date: Thursday 16th February 2017
Approved Judgment
This judgment is in seven parts, namely:
| Part 1 – Introduction | Paragraphs 2 – 9 |
| Part 2 – The facts | Paragraphs 10 – 16 |
| Part 3 – The present proceedings | Paragraphs 17 – 24 |
| Part 4 – The appeal to the Court of Appeal | Paragraphs 25 – 29 |
| Part 5 – Grounds 1 and 2: Failure to triage the claimant within 15 minutes | Paragraphs 30 – 38 |
| Part 6 – Grounds 3 and 4: Was there any breach of duty by the receptionist and, if so, did it cause the claimant's injury? | Paragraphs 39 – 58 |
| Part 7 – Executive summary and conclusion | Paragraphs 59 – 63 |
This is a claimant's appeal in personal injury litigation based upon alleged negligence by the receptionist in a hospital's accident and emergency department. The principal issue in the appeal is whether the receptionist (or the health trust acting by the receptionist) owed any tortious duty to provide accurate information to the claimant about waiting times.
There are about 450,000 visits to accident and emergency departments across England every week. (I do not know the figures for Wales.) Therefore the issues in this appeal are of some importance.
The hospital involved in this case was at the material time Mayday University Hospital, Croydon. It is now known as Croydon University Hospital. I shall refer to it as Mayday Hospital.
The claimant, Michael Darnley, was born on 17 th May 1984. He was aged 26 at the relevant time. The defendant is the NHS Trust responsible for Mayday Hospital.
I shall use the abbreviation "A & E" for accident and emergency. The trial judge used the term "civilian receptionist" to mean a receptionist without clinical qualifications. I shall use the phrase in that sense.
Apparently some hospitals have triage nurses at the reception desk of their A & E departments. The Mayday Hospital, however, like many other hospitals, has civilian receptionists in its A & E department. The triage nurses are at a separate but nearby location. A receptionist takes down the details of each new arrival on a document referred to as an "A & E card". That A & E card is then transferred to the triage nurses for appropriate action.
In September 2007 the National Institute for Health and Clinical Excellence published Clinical Guideline 56 entitled "Head Injury. Triage, Assessment, Investigation and Early Management of Head Injury in Infants, Children and Adults". This document has now been superseded, but it was current at the time of the events in issue. I shall refer to it as "the NICE Guideline". Paragraph 1.4.1.6 of the NICE Guideline states:
"1.4.1.6 All patients presenting to an emergency department with a head injury should be assessed by a trained member of staff within a maximum of 15 minutes of arrival at hospital. Part of this assessment should establish whether they are high risk or low risk for clinically important brain injury and/or cervical spine injury, using the guidance on patient selection and urgency for imaging (head and neck cervical spine)."
After these introductory remarks, I must now turn to the facts.
On the evening of Monday 17 th May 2010, the claimant was the victim of an assault. He received a violent blow to the head. A friend, Robert Tubman, drove the claimant to the A & E department of Mayday Hospital.
The claimant and Mr Tubman duly went to the reception section. A receptionist took down the claimant's details and filled in an A & E card. She recorded the claimant's name, address, occupation, mode of arrival, name of GP and similar matters. She noted that his complaint was a head injury with a duration of 1 hour and 26 minutes. She recorded the time as 8.26 pm.
The claimant told the receptionist that he was in considerable pain. The receptionist told the claimant to wait in the waiting area. She added that it would be up to 4 or 5 hours before he was seen.
The information which the receptionist gave to the claimant was incorrect. In fact the system was that a triage nurse would examine the claimant within 30 minutes of arrival. That nurse would decide how soon he needed to see a doctor. The volume of work that night was such that many patients had to wait 4 or 5 hours before treatment. But it by no means followed that a patient with a serious head injury would have to wait that long.
The claimant and Mr Tubman duly settled down in the waiting area. After 19 minutes the claimant, who was in pain, decided to go home and take paracetamol. At 8.45 pm the claimant and Mr Tubman got up and left, without notifying the reception staff of their decision. A short time later the triage nurse came to look for the claimant, but by then he had gone.
Mr Tubman drove the claimant to his mother's home. She arrived shortly after 9 pm. Unfortunately the claimant's condition deteriorated. At 9.42 pm his family called an ambulance. The ambulance took the claimant back to Mayday Hospital. A CT scan of his head revealed the presence of an extradural haematoma. The claimant was transferred to St George's Hospital in London for neurosurgery to remove the haematoma. By then, however, it was too late to prevent permanent injury. The claimant sustained left hemiplegia and long term disabilities.
The claimant took the view that the reception staff of Mayday Hospital had been negligent and that such negligence was the cause of his injuries. Accordingly he commenced the present proceedings.
By a claim form issued in the Queen's Bench Division of the High Court on 30 th April 2013 the claimant claimed damages against Croydon Health Services NHS Trust for injuries caused by negligence of staff at Mayday Hospital. The essence of the claimant's claim was that the staff had delayed too long before assessing him and had given incorrect information about waiting time.
The defendant served a defence denying breach of duty, but admitting that if the claimant had been present when called for triage, his treatment would have been prioritised. The defendant subsequently admitted that if the claimant had received that prioritised treatment he would have made a full recovery.
Both parties instructed expert witnesses. The claimant's expert was Mr J. Heyworth, a consultant in emergency medicine. The defendant's expert was Dr G. Campbell-Hewson, another consultant in emergency medicine. The two experts conferred and produced a helpful joint statement dated 10 th April 2015.
The experts' joint statement included the following paragraphs:
"1. The experts agreed that the NICE Guidance CG 56 represented the appropriate guidance for a patient with a head injury in 2010."
"2. The experts agreed that the Guidance should apply to all head injured patients, whether or not there had been reported loss of consciousness.
The experts recognised that the standard of 15 minutes to triage may not always be achievable, being influenced by the level of activity in the Emergency Department and other clinical priorities."
"4.3 The experts agreed that Monday evening is typically a busy evening of the week in an Emergency Department. It appears that there was a high volume of clinical workload in terms of numbers and acuity at the time of Mr Darnley's presentation. In all Emergency Departments there are finite numbers of nursing staff available for triage and it may not always be possible to triage all patients presenting with a head injury within the target time of 15 minutes."
"5. The experts agreed that notwithstanding the potential confounders of activity and workforce, Mr Darnley should have been triaged within 30 minutes of arrival at the Emergency Department."
The action came on for trial before HH Judge Robinson, sitting as a judge of the High Court, in April 2015. The witnesses on the claimant's side were the claimant, Mr Tubman, three members of the claimant's family and Mr Heyworth. The defendant's witnesses were Mrs Battie (the receptionist on late duty, who was present when the claimant returned by ambulance), Ms Ashley and Ms Reeves-Bristow (the two receptionists on duty earlier in the evening) and Dr Campbell-Hewson. It must have been either Ms Ashley or Ms Reeves-Bristow who dealt with the claimant when he first came to the A & E department, but neither of those witnesses had any recollection of the events in question. They could only say what was their usual practice.
The judge handed down his reserved judgment on 31 st July 2015, dismissing the claimant's claim. I would summarise his reasoning as follows:
i) The claimant's condition on arrival was not such that the non-clinician reception staff should have realised that he needed priority triage.
ii) Given the pressures on the A & E department that night, the failure to triage the claimant within 15 minutes was not a breach of duty.
iii) There would have been a duty to triage the claimant within 30 minutes, but he left the hospital before that period expired.
iv) It was not part of the reception staff's duty to give information about waiting times. They were not in breach of duty to the claimant (a) by failing to provide accurate information or (b) by providing inaccurate information to him in respect of waiting times.
v) It was not "fair, just and reasonable" to...
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