Darnley v Croydon Health Services NHS Trust

On Monday 17 May 2010 the Claimant was unlawfully attacked and struck on the head by unknown assailants. There is a degree of confusion about precisely when he was so attacked. Times of 5:00pm and 7:00pm have been given. For the purposes of this case, the precise time is immaterial.

After a time the Claimant began to feel unwell. He was persuaded by his friend Robert Tubman to go to hospital. Mr Tubman drove him to the Accident and Emergency Department of the Mayday University Hospital, Croydon. The hospital is now known as the Croydon University Hospital.

The Claimant was booked in at the hospital A&E reception at 8:26pm. I find on the evidence that he left the hospital at 8:45pm at the latest without having been seen by a clinician. Having returned home, his condition deteriorated. An ambulance was called at about 9:42pm. He was first taken to the Defendant’s hospital. A CT scan showed the presence of an extra-dural haematoma. He was transferred to St George’s Hospital for neurosurgery to remove the haematoma. He has suffered a left hemiplegia.

In this trial I am concerned only with liability. It is agreed that had the Claimant remained at the hospital he would have been treated sufficiently sooner that he would have gone on to make an essentially full recovery.

The Claimant’s case is that during the period he was at the hospital, there were breaches of duty by the non-clinical reception staff and by the professional clinical staff. The alleged breach of duty by the reception staff concerns what information he was given about the time he would have to wait before being seen by a clinician, and also a failure to assess the Claimant for “priority triage”. The alleged breach of duty by the clinical staff concerns the failure to assess the Claimant during the time he was present at the hospital.

Thus I am concerned with what happened in the period of 19 minutes during which the Claimant was present at the hospital.

For the Claimant I heard from, and read the written evidence of, the following witnesses:

For the Defendant I heard from, and read the written evidence of, the following witnesses:

I am satisfied that all of the witnesses have done their best to assist me in my task of fact finding. In making findings of fact I have had regard to all of the evidence.

I do not need to dwell upon the events immediately following the attack on the Claimant, save to observe that he was not immediately so unwell that he felt any need to go to hospital.

By the time the Claimant signed his witness statement on 28 June 2014, he had little recollection of relevant events. He remembered his friend Robert Tubman arriving by car to drive the Claimant to see a potential landlord. He says in his witness statement that by then his head “felt as if it was in a vice”.

At the hospital he remembers talking to the receptionist, and that it was difficult for him to stand because his head was hurting so much. He says this:

“… I do remember talking to the receptionist in A&E. I remember it was difficult for me to stand because my head was hurting so much and I was collapsed against the window of the A&E department. I remember that she did not seem to be listening to what I was telling her namely that I had been attacked and I had a head injury and I had a very bad headache.”

He described the manner of the receptionist as being “off hand” and goes on to say that she “told me that I would have to wait in the waiting area for up to 4-5 hours”. He continues in his witness statement thus:

“I remember sitting in the waiting area with Robert for a while and feeling terrible. My head was really painful and felt like it was in a vice. I just wanted to go home and lie down. If the receptionist had reassured me that I would be seen by a nurse to assess me before having to wait so long to see a doctor I would have stayed. There was no way I could wait there for 4 or 5 hours and I remember telling Robert that I wanted to go home and we left.”

In cross examination he said he had been trying to tell the receptionist that he head “was in pain I had never experienced before”, and “I just said my head was hurting and I need to be seen straight away”. That goes beyond what he said in his written evidence and it must be open to doubt that he in fact said anything beyond that which appears in his written evidence.

Mr Tubman’s account of events upon arrival at the hospital appears at paragraph 6 of his witness statement:

“Michael tried to tell the lady at the desk that he had been involved in an incident in which somebody had hit him over the back of his head and he believed he had a head injury. He told the lady that he was feeling very unwell and his head was really hurting. The lady did not have a helpful attitude at all to Michael. She seemed more concerned as to how the injury had occurred and she asked Michael if the police had been involved. Michael tried to explain to her that he had been hit over the head and was worried that he had a head injury and needed to be seen quickly. I also tried to explain to the lady that Michael was really unwell and we were worried that he had a head injury and needed urgent attention.”

An important issue is the length of time that the Claimant remained at the hospital. The Claimant himself cannot now assist on that issue. During cross examination he was taken to a document at pages 321-328 in Bundle 1. It is a form of application for compensation addressed to the Criminal Injuries Compensation Authority. At page 328 these words appear in handwritten block capitals concerning the time the Claimant remained at the hospital:

“[The receptionist] told me to sit down and wait for 5 hours. I sat down for around 2 minutes and then left as I felt it was pointless to stay due to the pain in my head and lack of help.”

The Claimant explained that he did not complete the form himself and said that the person who completed the form for the Claimant must have made a mistake.

Page 45 in Bundle 1 is a copy of a typed letter dated 14 November 2010 from the Claimant complaining about his treatment at the hospital. In it he says:

“I waited for approximately an hour, however, when the pain became unbearable I left the hospital in hope that I would feel better after some rest.”

The Claimant says of this letter that it was written by a friend on the basis of what the Claimant told him. The Claimant said that he wanted to say “20 to 30 minutes” and could not explain why the friend had typed “an hour”. It was put to the Claimant that he had stayed at the hospital for only a few minutes, but he said in his oral evidence on one occasion that he waited for 20 minutes and on another that he waited for 20 or 30 minutes.

I will deal fully with Robert Tubman’s evidence on matters other than the time he remained with the Claimant at the hospital in due course. Dealing with that time he says in his witness statement that:

“We probably waited for about 20-30 minutes until Michael said that the pain was too much and that he felt too unwell to keep sitting there and insisted on going back home for paracetamol.”

The Claimant’s mother, Patricia Smith, said in her oral evidence that she was aware of the Claimant arriving home. She said she was waiting for the 9:00pm news to start and just after it had started her daughter had called to her to say that Michael was here. That is consistent with the ambulance records which record that the Claimant had arrived home at 9:00pm. It is inconsistent with Patricia Smith saying that the Claimant had “just come in” during the 999 call timed at 9:42pm. She was asked about this and said she had not meant it literally.

I am confident in finding that the Claimant arrived home just after the start of the 9:00pm news.

There appears to be agreement that it takes about 13 minutes to drive from the hospital to the Claimant’s home – see the AA Route Planner document at page 133 of Bundle 1. To that period there must be added a short time representing time to walk from the A&E department to Mr Tubman’s car and then from the car into the Claimant’s home. Thus the whole journey is likely to have taken a little longer than 15 minutes.

Although the two receptionists on duty have no recollection of the events of 17 May 2010, Yvonne Battie says she does. In her statement she says she arrived at the hospital at 9:30pm ready to start her shift at 10:00pm. In oral evidence she said she arrived at 9:15pm. Her early arrival was to allow for a proper handover between the shifts.

At paragraph 10 of her witness statement she deals with the Claimant’s A&E record created on 17 May 2010:

“I have reviewed the Claimant’s A&E records. I can confirm I noted in manuscript on the A&E card ‘DNW [did not wait] 20:45’. I do not know why 20:45 is crossed out or who did this. I do not recall why I wrote 20:45. I assume it was either because the receptionists on the earlier shift told me he left at 20:45 or they may have said he waited about 20 minutes, having arrived at 20:26, or that at about 21:30 they may have said ‘he left about 45 minutes ago’.”

This evidence is not terribly satisfactory, but the time of 20:45 as the time when the Claimant left the hospital fits closely with his arrival home just after 9:00pm and a journey time in the car of 13 minutes. On the preponderance of the evidence I find that the Claimant left the A&E department of the hospital at 20:45 at the latest. This means he was present within the department for a maximum of 19 minutes.

The only firm evidence concerning this comes from the Claimant and Mr Tubman. The two on-duty receptionists can give evidence only of their usual practice. The evidence from Ms Battie comprises what she was told by those receptionists at handover and is necessarily hearsay.

I have already noted that the Claimant recalls being told by the receptionist that he “would have to wait in the waiting area for up to 4-5 hours”.

In cross examination he repeated that he was told he would have to wait four to five hours. Having been told that he said the receptionist put the shutters down.

Mr Tubman in his written evidence said this in paragraph 7:

“The lady told Michael in a very off-hand way that he would have to go and sit down and would have to wait for about 4-5 hours before somebody looked at him. Michael said that he could not wait that long because he felt he was about to collapse. The lady told him that if he did collapse then he would be treated as an emergency. At this point she made it clear that she was not interested in dealing with him any more and was pulling down the shutter.”

He was asked some supplemental questions as part of his evidence in chief. He was taken to the written evidence of Valerie Ashley where she said “I would have told him he could expect to be seen by the triage nurse within 30 minutes of arrival” and to the written evidence of Susan Reeves-Bristow where she said “I would have told the Claimant the triage nurse would be informed and he would be seen as soon as possible”. Mr Tubman said that he did not remember anything like that being said and made this point: “If I had heard anything like that I would have made him [the Claimant] wait.”

He was also taken to the statement of Mrs Battie who said this at paragraph 6:

“I recall Val and Susan told me that the patient had been asked to wait for triage and that he would not have to wait too long. I recall Val and Susan told me the patient came back to the reception desk and asked how long he would have to wait and that although he was again told ‘not too long’ the patient then left A&E before being seen by the triage nurse. I do not recall being told whether it was Val or Susan who actually spoke to the patient.”

Mr Tubman described as being “untrue” any suggestion that the Claimant had returned to the reception desk.

In cross examination he said this:

“If we had been told we would be seen in 30 minutes I would have stayed with my friend for 30 minutes. I was told he would be seen up to four to five hours. I am no professional. I thought it meant he could be waiting for up to four to five hours – that might be the maximum time we might have to wait”.

Later on he said:

“I was prepared to wait for as long as necessary. If we had been told he would be seen in 30 minutes I would have made sure he waited”.

I find the evidence of Mr Tubman compelling. I am entirely satisfied that, whatever the usual practice of the two on-duty receptionists is or may have been, on this occasion the Claimant was not told he would be seen within 30 minutes or anything like that. I an entirely satisfied that the only information given to the Claimant and to Mr Tubman was that the Claimant would have to wait for up to four or five hours to be seen. I am satisfied that they were not told about being seen earlier by a triage nurse or anyone else.

I am also satisfied, and I so find, that if the Claimant had been told he would be seen within 30 minutes, he would have waited until he was seen. For the avoidance of doubt I find that Mr Tubman would have been successful in persuading the Claimant to wait, even if the Claimant had said he wanted to go.

The relevant guideline was issued in September 2007 entitled “Head Injury –Triage, assessment, investigation and early management of head injury in infants children and adults”. The introduction makes it clear that NICE clinical guidelines are recommendations about the treatment and care of people with specific diseases and conditions in the NHS in England and Wales. The introduction continues: “This guidance represents the views of the Institute, which was arrived at after careful consideration of the evidence available. Healthcare professional are expected to take it fully into account when exercising their clinical judgment.”

The relevant part of the Guideline is at paragraph 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).”

Realistically, the assessment envisaged by the Guideline in the context of this case would be assessment by a triage nurse. The Claimant’s case is that had he been assessed within 15 minutes, he would either have been admitted there and then and kept under observation, or he would have been encouraged to stay to be seen by a doctor, and would have stayed in the hospital.

The only evidence concerning the triage system operated at the hospital came from the three receptionists and from disclosed documents. The primary system operated at the hospital involved the receptionist physically transporting the completed registration form to the triage nurse station and placing it in a rack outside the room. There was evidence, which I will examine in due course, of the reception staff drawing to the attention of the triage nurse patients who appeared to the reception staff to be clearly very unwell with a view to the triage nurse prioritising triage in respect of such patients.

The first issue is whether triage within 15 minutes of arrival at hospital is mandatory. In their joint statement the experts said in answer to question 2:

“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”.

The experts discussed the issue of “triage within triage” and came to divergent views. Mr Heyworth thought that the triage nurse should review the registration forms “and prioritise those patients who may be at risk of deterioration”. Dr Campbell-Hewson thought that alert and orientated patients presenting at reception are at low risk of having a serious head injury and “there would not be time for a ‘triage within triage’ process”.

In oral evidence both Mrs Batttie and Ms Ashley spoke of a practice whereby they might draw the attention of the triage nurse to a patient who was plainly seriously unwell.

Mrs Battie said that this was “something we have always done since I started”. She agreed with this proposition put to her in cross examination:

Ms Ashley was asked if she was aware of a system of priority triage. She said that she was: “we would inform the triage nurse”. She said she would “definitely” do this if the Claimant had said he had a headache as bad as anything he had ever had. She said she would write the word “priority” on the registration form, but seemed to suggest she would only do that in the case of a patient presenting with chest pain.

This common sense practice seems to me to be no more than the practical application of the common sense proposition which appears in a document produced after this incident. The document is entitled “Triage Position Statement” dated April 2011. It appears to have been the result of collaboration between The College of Emergency Medicine, the Emergency Nurse Consultant Association, the Faculty of Emergency Nursing, and the Royal College of Nursing, Emergency Care Association. The third paragraph on page one of the document is in these terms:

“Well recognised red flag presentations, e.g. crushing chest pain or profuse bleeding may be recognised by non-registered health care workers such as Emergency Department (ED) or Urgent Care Centre (UCC) reception staff, who should seek the immediate assistance of a registered clinician … Assessing urgency in other presentations is a more complex process and requires the skills of a trained health care professional.”

The Claimant was plainly able to give the personal details which appear on the registration form. Mr Tubman agreed that he did not know these details and so it must have been the Claimant who provided them. This supports the view of Dr Campbell-Hewson that the ability of the Claimant to give these details is indicative of his level of alertness and orientation. He was of the view that the presentation of the Claimant was not terribly striking. He said that priority triage is fairly common and is at the standard of a member of the public exercising common sense.

In contrast, Mr Heyworth said he would have expected the receptionists to have recognised the seriousness of the Claimant’s condition.

I am not satisfied that the Claimant told the receptionist that the pain in his head was the worst he had ever had. This evidence only emerged for the first time in cross examination and I find his memory on this point to be unreliable. If the Claimant had in fact said this, I would have expected that important detail to have been recorded in his written witness statement.

I accept the accounts of the Claimant’s presentation at reception given by the Claimant and Mr Tubman in their respective witness statements. Such presentation is not such as to have alerted non-clinical reception staff to the presence of a condition so serious that it was necessary to bring it to the attention of the triage nurse. I agree the standard of recognition of such conditions is at the standard of a member of the public exercising common sense. That being so, there was no obligation on the reception staff to bring the Claimant’s condition to the attention of the triage nurse to be seen as a matter of priority.

Having determined that the Claimant did not fall into the category of patients who should have been fast tracked under the priority triage system, I turn next to consider the effect of the NICE guidance. I must consider two issues:

The primary case of the Claimant is straightforward and superficially attractive. The NICE guideline describes optimal practice. Anything less must represent sub-optimal practice and is therefore unacceptable. This indeed represented the primary position of Mr Heyworth in oral evidence when he said that “the NICE standard is a standard and failure to comply is sub-standard care”.

The real world position is not so simple, as was fairly recognised by Mr Heyworth when he qualified the evidence I have just quoted by saying: “We [the experts] agreed that up to 30 minutes may be the time allowable if there are adverse factors”.

This evidence flowed from the discussion between the experts in their joint statement. In answer to questions 3 and 4 the experts agreed:

“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.

“The experts agreed that hospital Emergency Departments should in principle be provided with the resources to comply with the expected standards set by NICE and other relevant organisations. It is not always feasible to ensure compliance with all such targets at all times.

In answer to question 9 the experts wrote this:

“The experts agreed that the NICE Guidance for triage within 15 minutes applied in principle, although the potential confounders of the overall activity in the department at that time, including the numbers of patients and the nature of their presentation (casemix), would influence the achievable interval.

“The experts agreed that the expected information would be that the patient would be asked to wait in the waiting room with an expectation to be seen by the triage nurse within 30 minutes.”

It was also accepted by the experts 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.”

During the course of this case, there has been much attempt to analyse what was happening in the Emergency Department of the hospital by reference to the A&E records of patients who arrived between 7.34pm and 9.02pm. The Claimant’s case is that unless the Defendant can justify by evidence that the A&E department was too busy to triage the Claimant within 15 minutes of arrival, then breach of duty is established.

Analysis of the A&E records proved problematic. It appears that there are three triage streams namely adult ambulance arrivals, adult walk-ins, and children.

It was doubtless hoped that analysis would show either that the triage nurses were so busy that it was excusable to miss the 15 minute target, or that the triage nurses were not so busy that missing that target was excusable. In the event, it has not been possible to show either of those outcomes.

What I am prepared to find is that it seems to me to be extremely unlikely that the triage nurses were not fully engaged that night. The alleged breach of duty is a failure to meet a tight target of 15 minutes by a factor of 4 minutes. I am not prepared to find that this amounts to a breach of a clinical duty of care. It is right that there must be a longstop, or the target becomes meaningless. The consensus of opinion amongst the experts is that the longstop position is 30 minutes. That seems entirely appropriate.

It is not clear when the Claimant was in fact called for triage. It was after 8.45pm. However, any delay after 19 minutes was not causative of any loss since the Claimant had, by then, already left the hospital.

Thus I conclude the fact that the Claimant was not seen by a triage nurse during the 19 minutes he was present in the hospital did not amount to a breach of duty. However, in any event, the fact that he was not seen during those 19 minutes did not cause any loss. The mischief at which the NICE guideline is aimed is the prevention of intra-cranial damage. The damage in this case arose because the drastic deterioration in the Claimant’s condition occurred away from the hospital. It was the Claimant’s choice to leave the hospital when he did.

It is worth shortly repeating the relevant primary facts which I have found:

The inevitable consequential finding is that upon being seen, the Claimant would either have been admitted or told to wait in the reception area. I am satisfied he would have followed such advice and thus his later collapse would have occurred within a hospital setting. His collapse would have resulted in prompt medical attention such that, on the agreed causation evidence, he would have made an essentially full recovery.

The evidence of the usual practice of the on-duty receptionists is that a person such as the Claimant would usually have been told that he would be seen by a triage nurse within 30 minutes (Valerie Ashley) or as soon as possible (Susan Reeves-Bristow. That of itself does not elevate “usual practice” to the status of a duty to follow such practice, with legal consequences potentially flowing from a failure to follow such practice.

In a letter dated 23 March 2011 (page 46 in the bundle) written by the Defendant’s Chief Executive to the Claimant, the author wrote:

“You also state in your letter that the receptionist told you there would be a four or five hour wait to see a doctor. This was completely incorrect, as waiting times for individual patients are determined by the severity of their injury, as assessed by the triage nurse, and I am very sorry that you were misinformed.”

This also does not seem to me to amount to the assumption of a duty provide such information, with legal consequences potentially flowing from a failure to provide it.

Dealing next with the expert evidence, neither expert dealt with this issue directly in their respective reports. Mr Heyworth does not mention it at all. Dr Campbell-Hewson sets out the relevant allegations of negligence, but then observes that the evidence of the on-duty receptionists is to the effect that they would have told the Claimant he would be seen by a triage nurse. He observes – rightly – that it is for the Judge to make relevant findings of fact, but does not deal with the consequences of a finding adverse to the Defendant’s factual case.

In the agenda for the meeting between the experts, this question was asked:

“9.2

What information should have been given to the Claimant … by reception, in terms of waiting to be seen/triaged?”

The experts answered this question thus:

“The experts agreed that the expected information would be that the patient would be asked to wait in the waiting room with an expectation to be seen by the triage nurse within 30 minutes.”

In oral evidence the issue was explored in more detail. In cross examination Mr Heyworth agreed that there was no clinical necessity to tell a patient what the waiting times were, but then went on to say that the duty of a receptionist is to provide information, including how long it is likely to be before a patient is seen by a clinician. He disagreed with the proposition that this duty only arose if the receptionist was asked for this information by the patient, and said that this was confusing a clinical role with a basic caring role. He pointed out that patients often complain about not being given information. However, asked whether receptionists were under a duty to tell a patient how long he would be likely to have to wait, he said that this was not a mandatory requirement but there was an expectation that information of this nature would be conveyed. He said this was a piece of advice being given to a patient. Finally he agreed that the average percentage of patients who leave hospital without being seen was less than 5%, there being a direct correlation between an increase in waiting time and increase in the number of patients who leave.

In re-examination he was taken question 9.2 in the joint statement. He said that the information given to the Claimant on this occasion was incomplete and thus was sub-standard. He laid weight upon the fact that in this case the receptionist had been asked about the waiting time and this triggered an obligation for specific additional information to be given.

Dr Campbell-Hewson was asked additional questions in evidence in chief. He was asked if receptionists have a responsibility to volunteer waiting times. He said that it was not a responsibility, but that if they were asked they should give the best estimate that they could give. He made the point that receptionists would not know directly about waiting times and that they would have to get them “second hand”. Dealing with the specific case of a head injury patient, he said that it was not recognised practice to volunteer an estimated time for triage and an estimated time to be seen by a doctor, but he did say that if a patient asked for this information then it should be given.

In cross examination he said that in the circumstances of the presentation by this Claimant, he would expect the receptionist to tell the Claimant that he would be seen by a triage nurse. Asked expressly whether he agreed with the answer given to question 9.2 in the joint statement he said that he did.

In this case the issue of the scope, if any, of the duty on a hospital receptionist to provide relevant information is an issue that clearly arises within a clinical setting. However it is not, in my judgment, an issue which falls to be determined by reference to the well known Bolam test to be applied in traditional clinical negligence cases – see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Indeed no-one has suggested that it is. Thus the evidence of the expert Accident and Emergency clinicians, whilst clearly relevant, is by no means determinative of the issue.

The relevant information in this case is the estimated time which would elapse before the Claimant would be seen by a triage nurse. That information is not clinical information. It was not sought from clinicians and the information itself could not have had any bearing on any decision concerning clinical treatment. It may inform decisions made by the person affected by the non-receipt of that information, but that does not of itself give rise to a duty to give the information, or to be accurate about the content of the information.

Mr Pendlebury for the Claimant puts his case very simply. The experts say that they would expect a receptionist to tell a head injury patient that he will be triaged within 30 minutes or so. Had the Claimant been told this he would have stayed and would not have suffered the damage which was in fact sustained.

He developed this by arguing that one of the purposes of providing this information was, as he put it in his written submissions, “to keep him in A&E”, or, as developed in oral argument, to “encourage” the Claimant to stay in the A&E department. He made reference to the “risk” of a patient leaving A&E, and submitted that providing accurate information concerning the likely triage time would reduce that risk. The purpose of the triage system was not simply to categorise patient priority; it was also to give the patient information.

He submitted that it was not unfair, unjust or unreasonable to hold the A&E department responsible for the consequences of the Claimant leaving the A&E department in the circumstances of this case.

Mr Martin, for the Defendant, put the issue somewhat differently. Whilst recognising that a proportion of patients do leave A&E departments without having been seen, he submitted that avoiding the risk of a patient leaving without treatment was not part of the object of the triage system.

He submitted that the Court should not conclude that there had been an assumption of responsibility on the part of the Defendant for the consequences flowing from a failure by the civilian reception staff giving inaccurate or incomplete information concerning waiting times in the A&E department. The imposition of such a duty would be unreasonable and, as it was put in written submissions, it “would make being an NHS receptionist impossible”.

Even if there is a duty to provide accurate information concerning triage waiting time, Mr Martin submitted that the damage actually suffered by the Claimant was outwith the scope of any such duty, which he recognised was probably another way of saying that the Claimant’s decision to leave was a new independent act which broke any chain of causation. I was referred to dicta of Laws LJ in Rahman v Arearose Ltd and University College London NHS Trust [2001] QB 351 (CA).

Finally, it was submitted that in the event that the Claimant succeeded on the issue of liability, I should hold that the Claimant was in part responsible for the damage he suffered.

I do not find it necessary to determine the scope of the triage system since in this case there was no triage before the Claimant left the hospital. It is right to observe that Mr Heyworth in cross examination agreed with the proposition put to him that the purpose of prompt triage was not to prevent patients leaving the hospital. However, this answer was given in the context of Mr Heyworth also agreeing that in this case the fact that the Claimant was not triaged promptly made no difference to clinical outcome in the sense that provided he had remained in the hospital and not gone home, he would have been treated promptly upon collapsing.

The issue in Rahman was the apportionment of loss between the two Defendants. The Claimant had been attacked whilst working in the fast food premises of his employers, the First Defendants. He sustained injuries including damage to his right eye. As a result of the admitted negligence of the Second Defendants, he lost all vision in that eye.

The dictum of Laws LJ to which my attention was drawn must thus be read in the context that he was dealing with apportionment of liability between two Defendants who were tortfeasors, rather than with the issue of whether there was any liability at all. However, I have nevertheless found his observations to be helpful. At paragraph 33 he said:

“So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible. The nature of his duty (here, the common law duty of care) is relevant; causation certainly, will be relevant – but it will fall to be viewed, and in truth can only be understood, in the light of the answer to the question, from what kind of harm was it the defendant’s duty to guard the claimant.”

We seem to live in an age where there is, in perception at least, increasing reluctance by individuals to take personal responsibility for their own actions. Here the Claimant’s case on this issue, baldly stated, is that it was the fault of the receptionists that he left the hospital and thus their fault for everything that flowed from such departure. What falls for determination is whether that is an accurate summary of the law as it stands.

Caparo Industries PLC v Dickman [1990] 2 AC 605 is a case concerning liability for economic loss arising out of negligent mis-statement. However, the principles identified in that case, and in particular the now familiar three stage test, have been widely applied to the general law of negligence. Those stages are: (1) foreseeability of harm; (2) proximity; and (3) whether it is fair just and reasonable to impose liability for negligence.

On the evidence, I conclude that it is reasonably foreseeable that some patients do leave A&E departments without being seen or treated, and that in such cases harm may result. There are well documented cases of persons being “turned away” from A&E departments even after having been seen, although such cases are probably better categorised as falling within the ambit of traditional clinical negligence cases. It is reasonably foreseeable that a person who believes it may be four or five hours before they will be seen by a doctor may decide to leave, in circumstances where that person would have stayed if they believed they would be seen much sooner by a triage nurse.

The issue of proximity seems to me to be very closely allied to the question posed by Laws LJ in Rahman namely “from what kind of harm was it the defendant’s duty to guard the claimant?” In my judgment, receptionists in A&E departments are not under a duty to guard patients against harm caused by failure to wait to be seen in an A&E department, even if such harm could, as a matter of fact in the individual case, have been prevented by the provision of full and accurate information about waiting times. Thus I accept the submission of Mr Martin that the harm suffered in this case is outwith the scope of any duty or obligation on the part of the Defendant, by its reception staff.

The Editors of Charlesworth & Percy on Negligence (13^th Ed) deal with the “fair just and reasonable” issue in this way in paragraphs 2-40 to 2-41:

“Even if the defendant ought reasonably to have foreseen harm to someone in the position of the claimant and the parties were in a relationship of proximity, a duty of care will not arise unless the third of the criteria identified by Lord Bridge in Caparo, is satisfied, namely that a duty to the claimant should in the circumstances be fair, just and reasonable. In Barrett v Enfield London Borough Council [2001] 2 AC 550, 558 Lord Browne-Wilkinson explained the test as follows:

“In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered.”

“Ultimately it comes down to judicial conceptions of desirable policy. The question of responsibility for negligence may be argued in an almost unlimited range of circumstances, and a court may take all kinds of considerations into account in deciding whether a duty ought to be owed. However, this does not mean that the question is entirely at large, or that every new decision is no more than an ad hoc determination of policy. Certain core concerns of policy and principle can be identified to which the courts frequently refer and which provide guidance in making decisions.”

In this case I also conclude that it would not be fair just and reasonable to impose liability upon the Defendant for harm arising in this case as a result of the failure by the receptionists to inform the Claimant of the likely waiting time to be seen by a triage nurse.

I reach that conclusion for the following reasons:

There is inevitably a blurring of the boundaries which separate the factors discussed above. This is hardly surprising in a case where the overall issue is whether the Defendant, by its reception staff in an A&E department, should be held liable for the consequences of a decision taken by a patient to leave the hospital without having been seen. Although the decision was, in part at least, made on the basis of information provided by the receptionist which was inaccurate or incomplete, my clear conclusion is that to impose legal liability in those circumstances is a step too far. Whether that conclusion is based upon a failure at the proximity stage of the Caparo test, or at the “fair just and reasonable” stage does not seem to me to matter. Equally, the ultimate conclusion could be justified on the basis that the connection between the alleged inadequacies of the information provided and the harm suffered is broken because the decision to leave is one that ultimately was the decision of the Claimant. It was the Claimant who was aware that he had been struck over the head. He knew he was in pain. He knew that ultimately he would be seen. He took the decision to leave before he had been seen. Ultimately, it is the Claimant who must take responsibility for the consequences of that decision, not the Defendant by its reception staff.

Accordingly, the residual injury from which the Claimant suffers is not something for which the Defendant is liable to compensate the Claimant, and the claim fails.