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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jain & Anor v Trent Strategic Health Authority [2007] EWCA Civ 1186 (22 November 2007) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2007/1186.html Cite as: (2008) 11 CCL Rep 79, [2008] LS Law Medical 139, [2008] 2 WLR 456, [2008] QB 246, [2007] EWCA Civ 1186 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
SIR DOUGLAS BROWN
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE JACOB
and
LORD JUSTICE WILSON
____________________
JAIN & ANR |
Respondents |
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- and - |
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TRENT STRATEGIC HEALTH AUTHORITY |
Appellant |
____________________
Mr Augustus Ullstein QC (instructed by Messrs Barker Gillette LLP) for the Respondents
Hearing date : 19 June 2007
____________________
Crown Copyright ©
Lady Justice Arden:
THE PRINCIPAL ISSUE IN THIS CASE
THE FACTS AS FOUND BY THE JUDGE
THE JUDGE'S JUDGMENT
"Whenever the question of common law duty of care arises in the context of the statutory functions of a public authority there are three potential areas of enquiry: first, whether the matter is justiciable at all or whether the statutory framework is such that Parliament must have intended to leave such decisions to the authorities subject of course to the public law supervision of the courts; second, whether even if justiciable it involves the exercise of a statutory discretion which only gives rise to liability in tort if it is so unreasonable that it falls outside the ambit of the discretion; third, in any event whether it is fair, just and reasonable in the circumstances to impose such a duty of care. The considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them."
"It would require very potent considerations of public policy which do not in my view exist here, to override the rule of public policy which has first claim on the loyalty of the law: that wrongs should be remedied."
"Sir Thomas Bingham MR took the view, with which I agree, that the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override their policy."
"The law is not so deficient as to deprive the claimants of a remedy based on duty in the circumstances I have found here, even though it falls short of misfeasance or bad faith." ([55])
THE ISSUES ON THIS APPEAL AND (IN SUMMARY) MY CONCLUSIONS ON THEM
Issue 1: Was the judge in error in rejecting the argument that the Jains' loss was caused by the decision of the magistrate?
In my judgment, if there had been a common law of care, the judge was correct in rejecting the argument that the loss suffered by the Jains was caused by the decision of the magistrate.
Issue 2: Did the judge err in law in holding that it was fair, just and reasonable that Trent should owe a duty of care at common law to Mr and Mrs Jain with respect to the making of the application under s 30 or in holding that the parties were in a relationship of proximity for the purpose of the duty of care?
For the reasons given below, in my judgment the judge erred in holding that it was fair, just and reasonable to impose a duty of care in these circumstances but not in relation to the question of proximity.
ISSUE 1: Was the judge in error in rejecting the argument that the Jains' loss was caused by the decision of the magistrate?
ISSUE 2: Did the judge err in law in holding that it was fair, just and reasonable that Trent should owe a duty of care at common law to Mr and Mrs Jain with respect to the making of the application under s 30 or in holding that the parties were in a relationship of proximity for the purpose of the duty of care?
Introduction
The common law duty of care: (1) Between individuals and public bodies (2) Between persons involved in litigation
(1) Between Individuals and Public Bodies
Caparo plc v Dickman
"Of course, if foreseeability of injury to another were the exhaustive criterion of a prima facie duty to act to prevent the occurrence of that injury, it would be essential to introduce some kind of restrictive qualification -- perhaps a qualification of the kind stated in the second stage of the general proposition in Anns [1978] AC 728. I am unable to accept that approach. It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations that ought to negative, or to reduce or limit the scope of the duty of the class of the person to whom it is owed."
"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and a body to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party to the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any precise definition as would be necessary to give them utility as practical steps, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognizes pragmatically as giving rise to a duty of care of a given scope." (617-8)
"at least in most cases, in fact merely facets of the same thing, for in some cases, the degree of foreseeability is such that it is from that alone the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court's view that it would not be fair and reasonable to hold the defendant responsible." (page 633)
" 'Proximity' is, no doubt a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances in which, pragmatically, the courts conclude that a duty of care exists." (page 633)
" to search for any single formula which will serve as a general test of liability is to pursue a will-o'-the-wisp. The fact is that once one discards, as it is now clear that one must, the concept of foreseeability of harm as the single exclusive test - even a prima facie test - of the existence of duty of care, the attempt to state some general principle which will determine liability in an infinite variety of circumstances serves not to clarify the law, but merely to bedevil its development in a way which corresponds with practicality and commonsense." (page 633E-F)
" One must, however, be careful about seeking to find any general principle which will serve as a touchstone for all cases, for even within the limited category of what, for the sake of convenience, I may refer to as "the negligent statement cases," circumstances may differ infinitely and, in a swiftly developing field of law, there can be no necessary assumption that those features which have served in one case to create the relationship between the plaintiff and defendant on which liability depends will necessarily be determinative of liability in the different circumstances of another case. " (page 635-6)
X v Bedfordshire County Council
Barrett v Enfield LBC
Z v United Kingdom
"In my view, when the courts in England, proceeding incrementally under the common law system of judicial lawmaking, hold that a hitherto unconsidered category of harm does not as a matter of law fall within the tort of negligence, they cannot properly be described as creating an "immunity", whether blanket or limited (see the speech of Lord Browne-Wilkinson in Barrett v London Borough of Enfield [1999] FLR 426, [1999] 3 WLR 79, quoted at para 65 of the judgment in the present case). What the decision of the House of Lords in the present case did was to determine a legal issue fixing the limits on the substantive content of a domestic "civil right". " (page 647)
D v East Berkshire Community Health NHS Trust [2005] 2 AC 373
Official statements by public bodies
Some concluding observations
(2) Between Persons Involved In Litigation
"Finally, all other considerations apart, it would plainly be contrary to public policy in my opinion to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect."
The scheme of the 1984 Act
"28 Cancellation of registration
The Secretary of State may at any time cancel the registration of a person in respect of a nursing home
(a) on any ground which would entitle him to refuse an application for the registration of that person in respect of that home;...
30. Urgent procedure for cancellation of registration etc
(1) If
(a) the Secretary of State applies to a justice of the peace for an order
(i) cancelling the registration of a person in respect of a nursing home or mental nursing home;
(ii) varying any condition for the time being in force in respect of a home by virtue of this Part of this Act; or
(iii) imposing an additional condition; and
(b) it appears to the justice of the peace that there will be a serious risk to the life, health or well-being of the patients in the home unless the order is made,
he may make the order, and the cancellation, variation or imposition shall have effect from the date on which the order is made.
(2) An application under subsection (1) above may be made ex parte and shall be supported by a written statement of the Secretary of State's reasons for making the application.
(3) An order under subsection (1) above shall be in writing;
(4) Where such an order is made, the Secretary of State shall serve on any person registered in respect of the home, as soon as practicable after the making of the order, -
(a) notice of the making of the order and of its terms; and
(b) a copy of the statement of the Secretary of State's reasons which supported his application for the order.
31. Ordinary procedure for registration etc under Part ll
(1) Where
(a) a person applies for registration in respect of a nursing home or mental nursing home; and
(b) the Secretary of State proposes to grant his application,
the Secretary of State shall give him written notice of his proposal and of the conditions subject to which he proposes to grant his application.
(2) The Secretary of State shall give an applicant notice of a proposal to refuse his application.
(3) Except where he makes an application under section 30 above, the Secretary of State shall give any person registered in respect of a nursing home or mental nursing home notice of a proposal
(a) to cancel the registration;
(b) to vary any condition for the time being in force in respect of the home by virtue of this Act; or
(c) to impose any additional condition.
(4) A notice under this section shall give the Secretary of State's reasons for his proposal.
32. Right to make representations
(1) A notice under section 31 above shall state that within 14 days of service of the notice any person on whom it is served may in writing require the Secretary of State to give him an opportunity to make representations to him concerning any matter which that person wishes to dispute .
33. Decision of Secretary of State
(1) If the Secretary of State decides to adopt the proposal, he shall serve notice in writing of his decision on any person on whom he was required to serve notice of the proposal .
34. Appeals
(1) An appeal against
(a) a decision of the Secretary of State under this Part of this Act; or
(b) an order made by a justice of the peace under section 30 above,
shall lie to a Registered Homes Tribunal .
(5) On an appeal against an order made by a justice of the peace the tribunal may confirm the order or direct that it shall cease to have effect."
Case law relevant to the scheme in the 1984 Act
"So it is, in my judgment, with the statutory procedure under section 30 of the 1984 Act. That section is concerned to provide an urgent procedure in cases where there will be a serious risk to the life, health or well-being of the patients in the home unless the order cancelling the registration is made. Therefore, it is envisaged that the application may be made ex parte, without the delay of giving notice to the registered proprietor, and without the procedure of giving information to the registered proprietor of the grounds of the application. It is intended to be urgent. But the check on that is that it is not the Secretary of State or the area health authority, on his behalf, who makes the order. It is the justice of the peace. The justice of the peace is intended to act properly in a judicial or quasi- judicial capacity and to be satisfied that there will be a serious risk to the life, health or well-being of the patients unless the order is made.
Mr Ellis submits that the reality of the situation is that the justice of the peace will simply rubber-stamp whatever is put before him or her by the area health authority because, if the area health authority is asking for cancellation of the registration because of a supposed possibility of a risk to the life or health or well-being of the patients, the justice of the peace cannot do otherwise, realistically, than make the order for fear that, even though the risk may seem extremely slight and not made out, nonetheless there might be a disaster which would hit the headlines in the press a few days later while any other procedure was being followed through at greater leisure. That is, in effect, saying that the check and balance that the statute has provided will not work because justices of the peace will not have the courage to do their duty, and will abdicate that duty in favour of giving the area health authority whatever it wants. But I do not see that the law can determine whether a duty of care arises or whether it is just and reasonable that there should be such a duty on the basis that justices of the peace will not do their duties. If the area health authority fails to put an adequate case before the justices of the peace it would be the duty of the justices of the peace to ask for more information or reject the case until it has been more fully made out."
Applicant's duty to the Court where the application is made without notice to the person affected
"It is well-established that an applicant who applies for relief ex parte is under a duty to investigate the facts and fairly to present the evidence on which he relies. The duty is clearly described by Bingham J, as he then was, in Siporex Trade v Comdel [1986] 2 Ll.L.R. 428 at 437, where he said:
"[ ] Such an applicant must show the utmost good faith and disclose his case fully and fairly. He must, for the protection and information of the defendant, summarize his case and the evidence in support of it by an affidavit or affidavits sworn before or immediately after the application. He must identify the crucial points for and against the application, and not rely on general statements and the mere exhibiting of numerous documents. He must investigate the nature of the cause of action asserted and the facts relied on before applying and identify any likely defences. He must disclose all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the application. It is no excuse for an applicant to say that he was not aware of the importance of matters he has omitted to state. If the duty of full and fair disclosure is not observed the Court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.""
"to make the fullest possible disclosure of all material facts within [the applicant's] knowledge."
Analysis
The Martine issue
Proximity
DISPOSITION OF THIS APPEAL
Lord Justice Jacob:
"if it appears to the justice of the peace that there will be a serious risk to the life, health or well-being of the patients in the home unless the order is made."
"(vii) There have been 12 deaths at Ashlea Court Nursing Home since February 1998. Seven of these deaths have been reported to the Police. Police investigations are continuing."
The true position about this was set out by the Tribunal:
"Paragraph 8 seems a clear example of the inclusion of irrelevant information. Mrs Robertson [the head of Trent's inspection unit who initiated the s.30 application] made it absolutely clear to us that the circumstances surrounding the deaths was not a reason for making the application. She denied that the paragraph had been included for its possible prejudicial effect and she pointed to the fact that the magistrate had before him the file note stating that the police did not suspect foul play in respect of the death on 17 September. She said that the paragraph had been included only as background information. If so, it gave a somewhat incomplete picture. It failed to relate the number of deaths to the number of residents and their frailty. If failed to indicate that deaths had been reported to the police because that is standard practice where a resident has not seen his or her doctor within the 13 days before death and the death is therefore regarded as "unexpected." It failed to indicate that the police investigations had been concluded in all cases save the death on 17 September and the allegation of abuse to which we have already referred. It failed to indicate what the information was for background only and was not regarded as being of other significance."
Rather kindly, to my mind, the Tribunal added:
"Whether the magistrate took any notice of the paragraph, given the complete lack of any indication as why the deaths might be significant, we do not know, but the paragraph should not have been in the statement in the form it was".
the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other (per Lord Bridge at 618A)
The "fair just and reasonable" test is ultimately one of policy. I can see no policy reason for refusing to recognise a duty of care here. And every reason for doing so.
Lord Justice Wilson:
"The importance of [the] fact that what is put at risk is the plaintiff's body, and not just his goods, is deeply embedded in the law of negligence."
"if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists."
ORDER:
Arden LJ: I do not consider that this is one of those exceptional cases in which this court should give leave.
Wilson LJ: I agree.
Jacob LJ: I agree that this court should not grant leave to appeal because it is primarily for their Lordships' House to decide what cases it should take. However, I would hope that it will grant leave. In my view the injustice sanctioned by the majority of this court, if a true consequence of the law, should be sanctioned at the highest level.