Sue (Susan) Bot v Mr Christian Barnick

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMrs Justice Whipple
Judgment Date16 November 2018
Neutral Citation[2018] EWHC 3132 (QB)
Date16 November 2018
Docket NumberCase No: HQ16C04362

[2018] EWHC 3132 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Whipple DBE

Case No: HQ16C04362

Between:
Sue (Susan) Bot (1)
Keith Whitehead (2)
Claimants
and
Mr Christian Barnick (1)
Dr Julius Bourke (2)
HCA International Limited (Wrongly Sued as the Portland Hospital) (3)
Defendants

Claimant (1) not represented.

Adam Walker (instructed by Healys LLP) for Claimant (2)

Nicola Campbell-Clause (instructed by Hill Dickinson LLP) for Defendants (1) and (2)

Matthew Barnes (instructed by DAC Beachcroft) for Defendant (3)

Hearing dates: 1 st November 2018

Judgment Approved

Mrs Justice Whipple

Introduction

1

These are two applications brought by the first and second defendants (D1 and D2), and the third defendant (D3), respectively, to strike out the second claimant's claim (he is C2). The strike out proceeds on two bases: that the claim discloses no reasonable cause of action ( CPR 3.4(2)(a)); alternatively, that the claim has no real prospect of success ( CPR 24.2).

2

By a claim form issued on 16 December 2016, the first Claimant (C1) claimed damages for personal injuries sustained and losses and expenses incurred as a result of the negligent treatment of D1 (a consultant obstetrician) and D2 (a consultant psychiatrist) at the Portland Hospital, for which D3 is responsible. C2 made a claim for damages and losses and expenses for negligent misstatement and breach of contract by D1 and D2, and D3 and its servants or agents, between 25 April and 5 May 2011.

3

C1's claim against D1 and D2 is progressing. By consent, C1's claim against D3 was struck out with no order as to costs on 28 September 2017.

4

C2's claim proceeds against all three defendants. They apply to strike his claim out or have summary judgment entered in their favour, adopting each other's cases as set out in their applications, and in their written and oral submissions (with adaptations as necessary to reflect the differences between them as parties).

C2's Claim

5

C2's particulars of claim were dated 25 July 2017. They were amended on 19 July 2018. The following paragraphs are based on the facts as pleaded in the amended particulars, which facts I accept for present purposes.

6

C1 gave birth to a daughter at the Portland Hospital on 29 March 2011, by elective caesarean section. She was a private patient at that hospital. C1 was discharged on 1 April 2011 with her baby daughter. She was re-admitted to the Portland Hospital on 26 April 2011, again as a private patient, with a suspected infection of her caesarean wound.

7

Thereafter her mental health deteriorated. On 27 April 2011 she became anxious and distressed and tried to pull out her drain. She was put under observation every 15 minutes. On 28 April 2011, she was assessed by a psychiatric nurse. On 29 April 2011, she was seen by D2 who noted that she was suffering a mixed affective state with fluctuating orientation. D1 saw her on 30 April 2011 and noted that she appeared to be mentally stable. D2 saw her again on 1 May 2011 and noted that she continued to do well, although C2 maintains that C1 was by now delusional. On 3 May 2011, nursing staff noted that C1 was confused and agitated. On 4 May 2011, the notes record a discussion with C2 about statements made by C1, which included C1 saying that she had been visited by a Cameroonian gang leader, her life had been threatened, money had been stolen from her, and that the children were at home being cared for by a nanny. The note records C2 being concerned about his children's safety. Entries in the notes later that day record C1 having alleged that she was raped by her uncle when she was 3, that she had thoughts of hurting family members, and other assertions of a similar nature. She was assessed by D2 at 16.30, he concluded she was having an acute stress reaction and that some intervention from other agencies, including the police, was warranted.

8

It is C2's case that D2 told him that C1 was suffering a stress reaction to having visitors, who had threatened her; that she had recovered from a psychiatric episode, and was not ill; that her allegations were truthful; that there were child- protection issues for the police to consider.

9

The police came to interview C1 at around 17.30 hours that evening. She was later seen by D1 and D2. The notes record that referral to the local mental health team was being considered and that she was confused and restless. At 07.25 on 5 May 2011, C1 was violent to a mental health nurse, and then put her clothes on and said she wanted to leave. She was discharged from hospital later that day, against C2's wishes. C2 took her by taxi to Islington Police Station where she was “sectioned”.

10

It appears that after that, C1 was compulsorily detained in a psychiatric hospital for some weeks. C1 and C2 became estranged. C2 served an injunction on C1 preventing her from accessing her children. C1's condition subsequently stabilised and she was then reconciled with C2.

11

The essence of C2's claim is that D1, D2 and/or D3 provided negligent advice and / or incorrect information to C2, on which he relied, and which caused him to believe that C1's delusions were or may have been based in fact, which in turn caused him to doubt the basis of his relationship with C1, and to seek to protect his children from her. It is said that this failure caused C1 and C2 to separate and caused persisting problems in the family bonds and relationships, as well as financial loss and damage.

12

C2 brings his case in contract and tort. C1 was admitted to the Portland Hospital as a private patient, and C2 asserts that he was owed a duty in contract and in tort, which duty was breached by all three defendants, causing him to sustain loss and damage.

13

C2 has served a schedule of loss and damage. C2 claims general damages of £20,000. This is for injury to feelings or mental distress at the events complained of. The remainder of the claim is for past and future losses, including loss of income, predicated on C2's case that he was forced to give up his job and sell his house in Islington and move to Hampshire to look after his children. The quantum of the pleaded losses exceeds £2 million.

14

C2 has also served a response to a request for further information, in which he sets out further particulars about his case.

Claim in Contract

15

There is no doubt that a contract existed between C1 and D3 for the provision of healthcare to C1. On each occasion when C1 was admitted, a pro forma admission form was signed (on the first occasion by her, on the second occasion by C2 on her behalf) and counter-signed by a registration officer on behalf of C3. The terms and conditions refer to the “patient”; that is a clear reference to C1.

16

That admission form stated that the consultants (that is, in this case, D1 and D2) are independent practitioners, not employed by the hospital, who supply their services direct to the patient. D1 and D2 were not, therefore, party to the contract with D3. There is no written contract with either of D1 or D2, but Mr Walker submitted, and I accept for the purposes of argument, that a contract with each of D1 and D2 came into existence in relation to the treatment offered to C1 as their patient, at the moment that they offered to provide treatment to her and that offer was accepted by her.

17

The issue in the case is: did D1, D2 and D3 also contract with C2? C2 argues that each of them also, and separately, contracted with him; further, that the contract which each of them had with him was not merely a contract for payment, collateral to the contract each defendant entered into with C1, but was for services to be provided by each defendant to C2 “for his own health and welfare” (I quote from Mr Walker's submissions – the content of the alleged contract is only very lightly sketched in the pleadings).

18

The case in contract is set out at [5]–[8] of the Amended Particulars of Claim. That claim is put in various ways: that the contract was partly oral and partly in writing, and related to advice paid for by C2 via his insurance policy, alternatively it is subject to implied terms under the Supply of Goods and Services Act 1982 and / or at common law to reflect business efficacy ([5]); that the contract was the consequence of D3's advertising that it provided a high standard of care and would provide peace of mind for patients and their families ([6]); that it was a collateral contract with implied terms that C2 would pay for C1's care in consideration of the defendants providing information and advice to C2 as well as C1 ([7]); that in the absence of a direct contract, C2 is entitled to pursue the defendants under s 1 of the Contract (Rights of Third Parties) Act 1999 ([8]).

19

In oral submissions, Mr Walker could not point to any written contract between any of the defendants and C2. (At one point, he seemed to assert that because C2 had signed the admission form on C1's behalf when she was readmitted on 26 April 2011, that brought such a contract into existence; but it is very clear that C2 was simply signing on behalf of C1, and that the admission form does not in and of itself bring into existence any contract between D3 and C2, a matter which Mr Walker seemed to accept.) Mr Walker did not suggest that any express words were used at any stage to create a contract between C2 and any of the defendants. Mr Walker focussed his argument on the proposition that the contract between C2 and each of D1, D2 and D3 came into existence by necessary implication, at a time unspecified, but before any one of them (D3 by its servants or agents) told C2 that C1 was not mentally ill (that being the misstatement relied on by C2 to mount his claim for consequential losses). Mr Walker was unable to give any further particulars of the...

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