Bot & Anor v Barnick & Ors

A hospital and doctors treating a patient do not ordinarily owe the patient’s partner a personal duty to safeguard the partner’s welfare or protect against pure economic loss. The relevant considerations include assumption of responsibility, proximity, foreseeability and whether imposing liability would be fair, just and reasonable. A medical treatment relationship with the patient remains the dominant relationship, particularly where duties of confidence may conflict with the proposed duty to the partner. A separate contract for advice to the partner will not be implied merely because the partner paid for, attended or was involved in the patient’s care. A claim may be summarily determined where the pleaded facts show that allegedly negligent advice could not have caused the claimed losses.

The first claimant received treatment from the first and second defendants at the third defendant’s hospital. The second claimant, her partner, alleged that the defendants negligently misrepresented her psychiatric condition and thereby caused him mental distress, family disruption and substantial financial losses. He advanced claims in contract and tort.

The defendants applied to strike out the claim under CPR 3.4(2)(a) or obtain summary judgment under CPR 24.2. The central issues were whether the defendants had contracted with the second claimant, whether they owed him a duty of care relating to his welfare and economic loss, and whether the pleaded advice could have caused the losses claimed.

1. Contract. No contract arose between the second claimant and the defendants for services concerning his own health and welfare. The patient was the contracting party with the hospital, and the doctors contracted to treat the patient. An implied contract would create conflicts with the defendants’ duties of confidence and care to the patient and would impose potentially extensive liability without discussion or payment for that risk. The arguments based on implied terms and advertising therefore fell away. The claim in contract was bound to fail and was struck out under CPR 3.4(2)(a), with summary judgment under CPR 24.2.
2. Duty of care. Applying Caparo Industries v Dickman [1990] 2 AC 605 and the closely analogous decision in West Bromwich Albion FC v El Safty [2007] PIQR P 7, there was no assumption of responsibility, insufficient proximity, and no basis on which it would be fair, just and reasonable to impose a duty on the defendants to protect the patient’s partner from economic loss. The hospital and doctors owed no personal duty to the second claimant to safeguard his welfare or health.
3. Authorities relied on by the claimant. ABC v St George’s Healthcare NHS Trust [2017] EWCA Civ 336 concerned a possible duty relating to the claimant’s own health and an unborn child, not pure economic loss suffered by a non-patient. Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 concerned negligent advice to a patient. Neither case assisted the second claimant.
4. Causation. Independently, the tort claim had no real prospect of success. The patient was detained under the Mental Health Act shortly after the allegedly negligent advice. That event plainly put any advice that she was not mentally ill in doubt, making it untenable to contend that the advice caused the subsequent losses. Summary judgment was therefore entered under CPR 24.2.
5. The applications were allowed. The second claimant’s claim was struck out and summary judgment was entered for the defendants. The court was satisfied that no amendment, further disclosure or further argument could save the claim.