Bishara v Sheffield Teaching Hospitals NHS Trust

The absence of an employment relationship does not, by itself, determine whether a duty of care exists. A duty may arise from the circumstances of a visit where sufficient proximity is arguable, including conduct that may amount to an assumption of responsibility or take a person beyond the role of a mere bystander. The Good Samaritan and omission principles remain relevant, but their application is fact-sensitive. The Caparo requirements of foreseeability, proximity, and fairness, justice and reasonableness must be assessed on the facts. At summary-judgment stage, disputed facts material to that assessment should not be resolved against the claimant where her account has a real prospect of being believed.

The claimant, who was employed as a house officer in dental surgery by Barnsley District General Hospital, attended the respondent’s Charles Clifford Hospital for career advice. She alleged that she became seriously unwell during a distressing interview and was left without timely assistance. The respondent disputed her account.

A District Judge granted summary judgment under CPR part 24 because the claimant was not the respondent’s employee. On appeal, HHJ Hampton upheld the striking out, holding that no duty arose because the respondent was in the position of a Good Samaritan. The central issue was whether, assuming the claimant could prove her account, the circumstances could arguably establish a duty of care despite the absence of employment.

Appeal allowed. Sedley LJ gave the leading judgment, with Ward LJ agreeing. The absence of an employment relationship meant that this was not an employer’s liability case, but it did not determine whether a duty of care arose from the circumstances.

1. At the summary-judgment stage under CPR part 24, the court could not reject the claimant’s account merely because the respondent disputed it. The disputed facts were material to the duty question and had a real prospect of being believed at trial.
2. The governing approach was the threefold test in Caparo Industries PLC v Dickman [1990] 2 AC 605: foreseeability of damage, proximity or neighbourhood, and whether it was fair, just and reasonable to impose a duty of the relevant scope.
3. The Good Samaritan principle, derived from Dorset Yacht Co Ltd v Home Office [1970] AC 1004 and the reasoning in Donoghue v Stevenson [1932] AC 562, remained relevant to cases involving omissions by mere bystanders. It did not establish that the claim was necessarily beyond the scope of negligence. If the claimant’s account were believed, the interview and the alleged failure to summon help could arguably take Dr Franklin outside the role of a bystander and create sufficient proximity.
4. Assumption of responsibility, considered in Barrett v Ministry of Defence [1995] 1 WLR 1217, was one way in which proximity could arise, not a separate question. The omission principle discussed in Stovin v Wise [1996] AC 923 likewise had to be assessed in the light of the facts.
5. The passage in Capital & Counties PLC v Hampshire County Council [1997] QB 1004 concerning special skill, undertaking and reliance illustrated circumstances sufficient to generate proximity; it did not define everything necessary for proximity.

The orders of HHJ Hampton and District Judge Hudson were set aside. The respondent’s application for summary judgment was dismissed and the claim was to re-enter the trial process. The court made no determination on causation or recoverability of damage and warned that those issues, and the potential costs, remained significant.

1. Court of Appeal (Civil Division): The appeal was allowed under [2007] EWCA Civ 353. The orders below were set aside and the respondent’s application for summary judgment was dismissed.
2. Lincoln County Court: District Judge Hudson granted summary judgment because there was no employment relationship. HHJ Hampton subsequently upheld the striking out on that ground and on the basis that no duty of care arose in the circumstances.