Duty of care, negligence and assumption of responsibility

When the Supreme Court reconvene for the Michaelmas term in October, public bodies will be keenly awaiting the judgments in...

The Supreme Court is now in recess for the summer. When it reconvenes for the Michaelmas term in October, public bodies will be keenly awaiting the judgments in Darnley v Croydon Health Services NHS Trust and CN & GN v Poole BC. The Darnley case, heard in June, will decide whether non-clinically trained reception staff at an A&E department owed a duty of care to provide a prospective patient with accurate information regarding waiting times. The CN case, heard in July, will decide whether a local authority owes a duty of care when exercising its child protection functions in respect of a child not in its care. For obvious reasons, both judgments will have significant implications for the public sector.

In advance of these crucial decisions, we consider some other important recent cases in which the court has been required to determine the nature and scope of the common law duty of care, an issue which continues to occupy the courts.

Case Detail Duty of care Reason/comment
Robinson v West Yorkshire Police [2018] UKSC 4 C was an innocent bystander who was injured as the police sought to arrest a suspected criminal. It was accepted that the arrest was carried out negligently. Yes The correct approach to considering whether a duty of care arises involves an analysis of established principles. The present case was not novel. The arrest was a positive negligent act and injury to C was foreseeable. Police immunity under Hill v West Yorkshire Police only arises in relation to the protection of the public from harm through the performance by the police of their function of the investigation of crime. Read our full update on the matter of Hill v West Yorkshire Police here.
Razumas v MoJ [2018] EWHC 215 C had received negligent medical care whilst in prison causing him to have his left leg amputated above the knee. No MoJ owed C a direct duty of care in relation to matters arising out of custody. The direct duty did not include a responsibility to actively reinforce the role of healthcare operators. The system of access to healthcare was not deficient; there had been negligence on the part of healthcare providers but no separate default by MoJ. A non-delegable duty did not arise because MoJ did not owe a duty to protect against negligent medical treatment. The Judgment on Razumas v MoJ can be found here.
Steel v NRAM Ltd [2018] UKSC 13 Lender of money alleged that the borrower's solicitors owed the lender a duty of care. No There had been no assumption of responsibility. The lender ought to have carried out its own checks and the failure to do so was unreasonable and could not have been reasonably foreseen by the solicitors, i.e. the lender’s reliance on the statements was unreasonable and could not give rise to a claim in negligent misstatement. The Judgment on Steel v NRAM Ltd can be found here.
Sumner v Colborne (Defendant) and Denbighshire CC and Welsh Ministers (Third Parties) [2018] EWCA Civ 1006 A driver who emerged from a side road and collided with a cyclist sought contribution/indemnity from the council in relation to the visibility at the junction. No A landowner owed no duty of care to a highway user in respect of vegetation on its land that impaired visibility but where the vegetation was not on or over the highway. The principle in Yetkin v LB Newham [2010] was restricted to positive negligent acts which created a hazard on or over the highway. Read our full update on the matter of Sumner v Colborne (Defendant) and Denbighshire CC and Welsh Ministers here.
Sherratt v Chief Constable of Greater Manchester [2018] EWHC 1746 Claim alleging negligence on the part of the police relating to their response to a 999 call made by the mother of a woman who later committed suicide. Yes Duty of care owed as D was deemed to have assumed responsibility for the deceased’s care. Assurances made by the call handler to the deceased’s mother were sufficient to impose a duty of care as the mother had relied on those assurances to her detriment. Read our full update on Sherratt v Chief Constable of Greater Manchester here.
James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40 Claims by police officers alleging that the Commissioner owed them a duty of care to safeguard their reputational and economic interests in the conduct of litigation.  No Employers must be able to carry out their own investigations and make their own strategic decisions. The duty argued for would disrupt the litigation process and be a cause of satellite litigation. Read our full update on James-Bowen v Commissioner of Police of the Metropolis here.
Henderson v Dorset Healthcare [2018] EWCA Civ 1841 Claims against NHS Trust brought by a woman who killed her mother whilst suffering a psychotic episode. N/A D admitted liability for C’s mental health treatment but doctrine of illegality precluded her claim for damages arising out of her own unlawful act on grounds of public policy (per binding authority of Gray v Thames Trains Ltd [2009] UKHL 33). The Judgement on Henderson v Dorset Healthcare can be found here. 

If you have any question or would like to know more about our update, please contact Peter Wake (Partner) on 0151 242 6866, or peter.wake@weightmans.com.

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