AB & Ors v Tameside & Glossop Health Authority & Anor

Once a health authority decides to inform patients of a remote medical risk, it must take reasonable steps in all the circumstances, having regard to the foreseeable risk of psychiatric injury and the practical conditions in which the information must be conveyed. Negligence does not depend on choosing the theoretically best method. Nor is the Bolam approach automatically decisive where there is little relevant professional experience. The court must assess the factual and expert evidence, including scale, logistics, confidentiality, available support and urgency. A less ideal method, such as written notification in a large-scale exercise, may therefore be reasonable. Ordinary distress is insufficient: the harm must amount to properly established psychiatric injury or illness, including material aggravation of a pre-existing illness.

The defendants appealed against a High Court decision by Mr Justice French dated 31 January 1995. The judge had held that the two health authorities were negligent in notifying patients by letter that an HIV-positive health worker had treated them, rather than communicating the information face to face. The trial concerned liability only, and damages had been ordered to be assessed on an assumed basis that each claimant had suffered legally recognised damage. The plaintiffs cross-appealed in relation to alleged deficiencies in counselling, testing and related arrangements. The central issues were whether written notification was negligent in the circumstances and whether the ancillary complaints required determination or a retrial.

1. Disposition. Lord Justice Brooke delivered the first judgment. Lord Justice Kennedy agreed with the result and gave additional reasons, and Lord Justice Nourse agreed with both judgments. The defendants’ appeal was allowed, the plaintiffs’ cross-appeal was dismissed, the order for damages to be assessed was discharged and the action was dismissed.
2. Standard of care. Once the health authorities decided to inform their patients, their duty was to take reasonable steps having regard to the foreseeable risk that some patients might suffer psychiatric injury or materially aggravated existing illness, together with all the other circumstances. The judge had wrongly treated the face-to-face method as the legally required best method. Conversely, the Bolam approach, cited at [1957] 1 WLR 582, could not by itself resolve the case because there was no adequate body of relevant professional experience from which to derive the answer.
3. Application. The court had to assess the complete factual and expert evidence. Relevant matters included the scale and distribution of the exercise, the unknown capacity and willingness of general practitioners, confidentiality, co-ordination between authorities, available trained counsellors and the need to act before publicity occurred. The 1993 Department of Health guidance, which treated written notification as an available option in large-scale exercises, reinforced the conclusion that the authorities’ decision and the contents of their letters were not negligent.
4. Psychiatric injury. Lord Justice Brooke observed that [1996] 1 AC 155 had authoritatively established that a primary victim might recover for psychiatric illness without physical injury. However, the distinction between primary and secondary victims in negligent-communication cases, and the relevance of susceptibility and trigger mechanisms, were left for a future case with full argument and evidence. Distress alone would not suffice; the harm had to be properly classified as psychiatric injury or illness.
5. Cross-appeal. Although the trial judge had given inadequate reasons for rejecting the ancillary complaints, no useful purpose would be served by a retrial. The claims were ancillary to the failed primary case, the evidence did not establish causation, the judge had seen the principal witnesses, and the passage of time made it highly difficult to disentangle the effect of the news from any alleged counselling deficiencies.

1. Court of Appeal (Civil Division) — [1996] EWCA Civ 938. The defendants’ appeal was allowed, the plaintiffs’ cross-appeal was dismissed, the damages assessment order was discharged and the action was dismissed.
2. High Court, Queen’s Bench Division — Mr Justice French held on 31 January 1995 that the defendants had acted negligently in communicating the information and ordered damages to be assessed on liability-only proceedings.