QB-2022-002447 - [2025] EWHC 2803 (KB)

He continued:  

“In the specific context of this case, where misleading information was provided as to the time within which medical attention might be available, it is not appropriate to distinguish between medically qualified professionals and administrative staff in determining whether there was a duty of care. …. The defendant had charged its non-medically qualified staff with the role of being the first point of contact with persons seeking medical assistance and, as a result, with the responsibility for providing accurate information as to its availability.”

 This is quite clearly the commonplace duty of the hospital to the admitted patient. It is not the present situation.

The Darnley decision referred to Kent v Griffiths [2001] QB 36 where the London Ambulance Service was held liable in negligence for its delay in responding to an emergency call as a result of which the claimant suffered brain damage. Observations were made with regard to the existence of a duty of care (at para [45]) that what was being provided was a health service and Lord Woolf asked rhetorically why the position of the ambulance staff should be different from that of doctors or nurses. More specifically, in Darnley Lord Lloyd-Jones stated (at para [49]) that the acceptance of the emergency call in Griffiths established a duty of care and that, if wrong information had not been given about the arrival of the ambulance, other means of transport could have been used. This was thus an established category since in both cases, as a result of the provision of inaccurate information by non-medically qualified staff, there was a delay in the provision of urgently required medical attention with the result that serious physical injury was suffered. In truth, this was not a duty of care case that was established: the question was one of whether there had been a negligent breach of duty. 

These examples are relied upon by Mr Bowen to say here there exists an established category of duty –a policy test does not apply. As I have said I do not accept that the present case is in any sense in that category at all- this is a quite different situation.

However, to the extent that it was submitted also that this is a new area of law as well, and therefore the case should not be struck out for that reason, I disagree. I accept D1’s submission that it is not. D1 considers that the law of duty of care has already and recently been extensively considered and it is described (by Mr Bermingham on behalf of D1 at para 25 of his First Statement)  to be “settled”, although it is also conceded that there is no authority for the Claimants’  proposition that an AMHP owes a duty of care when considering whether to detain  under the MHA (see D1’s application skeleton argument, para  28).

The recent authority of Tindall howeverputs the matter beyond doubt. Tindall was a case where the police should have carried out a detailed investigation prior to, and at the scene of, an accident on ice to identify the cause; Appropriate signs should have been placed; gritters should have been requested and the police should have stayed at the scene until the gritters arrived; and the road should have been closed.

Lord Leggatt in that case at [38] recalled that the general rule was stated in

He stated the rule is not absolute and referred, at paras 98-100, to what he described as two well recognised exceptions. The first, as exemplified by Dorset Yacht which is a situation where the defendant is in a position of control over the third party who has directly caused the damage. The second is where there is an assumption of responsibility by the defendant to the claimant to safeguard the claimant. Neither exception applied on the facts of the case. In particular, the Supreme Court rejected an argument that there had been an assumption of responsibility by the police call handler.

In Tindall Lord Leggat said also at para[68]:

“Mr Bowen cited the many judicial statements urging caution before striking out a claim in an area of law which is uncertain and developing, and emphasising the desirability that any further development of the law should be on the basis of actual and not hypothetical facts: see eg X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 740-741; Barrett v Enfield London Borough Council [2001] 2 AC 550, 557; Waters v Comr of Police of the Metropolis [2000] 1 WLR 1607, 1613-1614. In the last of these passages Lord Slynn of Hadley described the law of negligence in relation to public authorities as such a developing area. That was a fair description when these cases were decided. But it is not true now. The law has since been settled by successive decisions of this court, particularly the seminal decisions in Michael and Robinson outlined earlier in this judgment. We agree with the Court of Appeal that the applicable law is clear and not in a state of flux.”

Michael was the case of the police caller who mis-classified an emergency call and the caller was stabbed waiting for the police to arrive. Robinson was the case of the little old lady who recovered damages after she was injured by negligent police on a raid where the duty not foreseeably to cause injury was given effect.

I respectfully agree that for the purposes of this application the law is settled: the cases of Poole and HXA together with Tindall make that clear. I do not accept that the distinctions sought to be made about the role of the AMHP nor other distinctions impinge upon that conclusion.

These cases also make clear in my judgement that the common law case on duty should be struck out even were the section 139 point not in play.