Smith & Anor v University of Leicester NHS Trust

A hospital ordinarily owes no duty of care to relatives who are not its patients for injury said to result from an omission in diagnosing or treating another patient. Extending such a duty to a patient’s wider family may constitute a radical development of negligence law rather than an incremental one. Under the third limb of the Caparo test, policy considerations must be fair, just and reasonable. The existence of a clinical genetics service and the foreseeability of harm to identifiable relatives do not, without more, justify imposing liability. A claim founded on such a proposed duty may therefore be struck out where the alleged duty falls outside established principles.

The claimants, Connor Smith and Nicola Smith, brought claims arising from the defendant Trust’s alleged failure in 2003 to perform a very long chain fatty acid test on a relative, Neil Caven. The claimants alleged that earlier diagnosis of Caven’s genetic condition would have led to earlier testing and diagnosis of Connor and Callum Smith, producing better medical outcomes. The defendant applied to strike out the Particulars of Claim under CPR Part 3.4 or, alternatively, for summary judgment under CPR 24.2. The central issue was whether the Trust owed a duty of care to non-patient relatives in respect of an omission in treating or diagnosing its patient.

The application succeeded and the Statement of Case was struck out for disclosing no reasonable grounds for bringing the claim.

1. The court applied the tripartite approach in Caparo Industries PLC v Dickman and others [1990] 2 AC 605. Foreseeability was assumed for the purpose of the application. The decisive issues were proximity and whether imposing a duty would be fair, just and reasonable.
2. The claim was based on an omission in the treatment of a person who was not one of the claimants. The court held that the existing authorities established that a third party could not recover damages for personal injury suffered because of an omission in the treatment of another patient.
3. The court treated Powell v Boladz [1998] Lloyds Rep. Med 116, X v Bedfordshire County Council [1995] 2 AC 633 and D v East Berkshire NHS Trust [2005] 2 AC 373 as supporting the settled policy against extending remedies to third parties for the effects of injuries to other people.
4. Although confidentiality concerns materially featured in ABC v St Georges Healthcare and others [2015] EWHC 1394 (QB), the court considered that decision was not dependent on confidentiality. Its broader reasoning applied: a hospital did not owe a duty to a non-patient for injury resulting from an omission in treating a patient.
5. Extending the duty to second cousins would go well beyond existing law and would be the kind of radical development described as a “giant step” in Michael v Chief Constable of the South Wales Police [2015] UKSC 2. Selwood v Durham County Council and others [2012] EWCA Civ 979 was distinguishable because its factual matrix involved an alleged assumption of responsibility in materially different circumstances.
6. The Statement of Case therefore disclosed no reasonable grounds for bringing the claim and was struck out.