Case No: B2/2006/1611
Neutral Citation Number: [2007] EWCA Civ 353
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LINCOLN COUNTY COURT 
(HER HONOUR JUDGE HAMPTON)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 26 March 2007
Before:

LORD JUSTICE WARD
and
LORD JUSTICE SEDLEY

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Between:

	BISHARA	
Claimant/ Appellant	
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SHEFFIELD TEACHING HOSPITALS NHS TRUST	

Defendant/Respondent	
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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.

MS C WATSON (instructed by Messrs Eversheds LLP) appeared on behalf of the Respondent.

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Judgment
Lord Justice Sedley:  
1.	The appellant’s claim in these proceedings is for damages for personal injury caused by the negligence of the respondent, Sheffield Teaching Hospitals NHS Trust.  She was employed at the material time not by the respondent but by the Barnsley District General Hospital as a house officer in dental surgery.  I put it as categorically as this because Smith LJ in giving permission to appeal made it clear that the finding to this effect of the courts below was plainly right and that it was not to be an issue on the appeal.  The immediate consequence is that whatever else it is, this is not an employer’s liability case.  But the reason why the appellant was at the respondent’s premises, the Charles Clifford Hospital, on 6 September 2000 was that she had gone there to be given career advice by the regional postgraduate dental dean, Dr Franklin. 
2.	Her case is that towards the end of an interview which she found distressing she suffered a severe migraine attack.  She asked Dr Franklin, she says, to call an ambulance, but all he did was terminate the interview and leave her in a state of collapse on the stairs outside his office, where she remained for some four hours with, she claims, lasting consequences.  The respondent’s case is that the first Dr Franklin knew of the appellant’s condition was after the interview when he was told that she was sitting on the stairs and that from that point the staff did all they possibly could to get help for her.
3.	Since this is an appeal against the striking out of the claim under CPR part 24 as having no real prospect of success, it cannot be assumed that the appellant will not succeed at trial in establishing her account of events.  District Judge Hudson nevertheless acceded to the respondent’s application for summary judgment because there was no employment relationship.  The question whether there was a duty of care arising out the circumstances of the visit and the incident itself was not addressed.  On appeal, however HHJ Hampton at Lincoln County Court upheld the striking out on both grounds.  As to the latter she said: 
“There is, in my judgment, no general duty in the circumstances, even as they are described by the claimant.  The defendant and defendant’s employees would be in the position of a good Samaritan, they having no duty either as servants or agents of the defendant or as, so to speak, colleagues of the claimant because the claimant is not able to put forwards any evidence that is inherently probable to assert that she was an employee of the defendant.”
4.	Although, as all the judges previously dealing with this case have noted, there is on any view a looming difficulty in this claim with causation and the recoverability of damage, there is no respondent’s notice before us on this issue.  The Trust is entitled to seek to uphold the decision below solely upon the ground on which it was reached, which is what Claire Watson this morning has doughtily attempted to do.
5.	Miss Watson has made the bold submission, first of all, that in the face of the evidence that the respondents have marshalled to the contrary the appellant’s account has no real prospect of being believed as fact.  Experience of litigation tells one again and again that, as Sir Robert Megarry V-C, once said, the path of the law is littered with open and shut cases that somehow were not.  We cannot possibly anticipate what a trial judge will find on hearing the evidence.  
6.	This brings us, therefore, to the real issue: that even if it is believed there is no real prospect that the appellant’s account could be held to establish a duty of care.  It is,  I have to say, something of a reproach to the lawyers involved that neither party reminded either judge below of the key authority, the decision of the House of Lords in Caparo Industries PLC v Dickman [1990] 2 AC 605.  For present purposes, the kernel of the decision can be found in Lord Bridge’s speech at pages 617-18 where, having reviewed the principal authorities, he said: 
“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 the party 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 for the benefit of the other.”
7.	This ostensibly open-ended approach to tort liability has, however, well-known limits.  One such limit is what is known as the Good Samaritan situation.  HHJ Hampton clearly had this in mind in the passage of her judgment which I have quoted.  It derives from what Lord Diplock said in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, citing Lord Atkin’s reasoning in Donoghue v Stevenson [1932] AC 562: that the conduct of the priest and the Levite who passed by on the other side was
“an omission which was likely to have as its reasonable and probable consequence damage to the health of the victim of the thieves, but for which the priest and the Levite would have incurred no civil liability in English law”.
8.	Smith LJ, giving permission to appeal in a carefully reasoned judgment said this: 
“It appears to me at least arguable that the judge misdirected herself at that stage.  She does not appear to have applied the three-fold test required by Caparo.  Also, she seems to have thought that in order for the applicant to show that there was a duty of care arising from the circumstances she had to show that she was an employee.  In my view it is at least arguable that the judge was wrong to dismiss the appeal and to deny the applicant the opportunity to have the evidence heard.
“In general where a duty of care is to be referred from the circumstances, it does not arise from one of the established duties of relationships, it is preferable for the judge to hear the evidence so as to establish what the actual circumstances were before deciding that issue.  Here the disputed facts are crucial.  On the one hand, the applicant alleges that her plight was deliberately ignored by a man who was actually talking to her when she was taken ill.  Was he under a duty to call help for her?  On the other hand, the respondent alleges that Dr Franklin and his staff did all that they did to offer help.  In considering whether it would be fair, just and reasonable to impose a duty of care it would be relevant to consider what the respondent claimed her employers had done.” 
9.	Thus Smith LJ took the view that the courts below ought arguably not to have determined the viability of the claim without ascertaining the facts and evaluating them in the light of the Caparo principles.  The respondent Trust’s submission is that even if the appellant makes out her version of events, her case is simply a claim against a bystander for not helping and so is on principle beyond the pale of the law of negligence.
10.	The appellant submits that it is significantly more than that.  It is a case, she says, of a colleague in a supervisory role conducting a stressful meeting with her about her future employment, who declined to summon help when she became ill and instead left her in pain and distress on the stairs outside his office.  I reiterate that this is a strongly contested history, but until the claimant has had the opportunity to advance it and have it tested, it is not possible to say that it has no prospect of being believed.  If it is believed it will, in my judgment, be arguable (I put it no higher) that albeit the appellant was not employed by the respondent, the particular situation was one of sufficient proximity to take Dr Franklin out of the role of bystander and to require him to take such steps as were reasonable to protect the appellant’s wellbeing.  
11.	Whether in such a situation it is fair, just and reasonable that there should be liability for any consequent harm that can be proved is likewise not a question that can be answered in the abstract.  Whether, as the appellant now contends, her case falls within the category of actual or implicit assumption of responsibility (see Barrett v Ministry of Defence [1995] 1 WLR 1217) is not a separate question.  Assumption of responsibility is simply one of the ways in which the necessary degree of proximity may arise.  By the same token, whether the case is one of simple omission and therefore excluded as a matter of policy from the arena of tort liability (see Stovin v Wise [1996] AC 923, 943-4) has to be decided in the light of the facts.  
12.	Today Miss Watson draws our attention, in the latter regard, to the decision of this court in Capital & Counties PLC v Hampshire County Council [1997] QB 1004 at page 1034, where the court said this:
“We now turn to consider the second submission made on behalf of all plaintiffs that the requisite proximity exists.  It involves the concept of assumption of responsibility by the fire brigade with particular reliance by the owner.  As a general rule, a sufficient relationship of proximity will exist when someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such skill and there is a direct and substantial reliance by the plaintiff on the defendant’s skill, see Hedleyburg v Helen [1964] AC 465 and Henderson v Merits Syndicates Ltd [1995] 2 AC 145.  There are many incidents of this.  The plaintiff’s submitted that that which is most closely analogous is that of doctor and patient or health authority and patient.  There is no doubt that once the relationship of doctor and patient or hospital authority and admitted patient exists the doctor or the hospital owe a duty to take reasonable care to effect a cure, not merely to prevent further harm.  The undertaking is to use the special skills which the doctor and the hospital authorities have to treat the patient.  In Cassidy v Ministry of Health [1951] 2 KB 343, 360, Denning LJ said: 
‘In my opinion authorities should run a hospital, be they local authorities, government boards or any other corporation, are in law under the self same duty as the humblest doctor.  Whenever they accept a patient for treatment they must use reasonable care and skill to cure him of his ailment.’”
13.	Miss Weston submits that what is said there covers the present case.  In my opinion, while the passage illustrates what is sufficient to generate proximity it does not purport to define what is necessary for it.  That is something which is fact-sensitive and which has the legal and logical boundaries described earlier in this judgment.  For reasons I have given it is not possible to say that the appellant’s account, if believed, falls outside them.
14.	It follows that the defendant’s application for summary judgment was, as is too often the case, a false economy.  This appeal, in my view, has to be allowed and the claim has to re-enter the trial process.  Miss Bishara will nevertheless know by now, because she will have seen an example of it, the magnitude of the bills for the respondent’s legal costs which she faces if she loses this case.  She will be well advised to obtain legal advice about the overall strength of her claim to have suffered any recoverable loss, if -- which is by no means certain -- she establishes the facts as she alleges them to have been and a duty of care consequent upon them.
15.	With those warnings, I would allow this appeal.
Lord Justice Ward:
16.	I agree.  I too would allow the appeal and I give further emphasis to the warnings that have fallen from my Lord, Lord Justice Sedley.  I do urge both parties to consider that they should explore mediation before further costs are incurred in this matter. The appeal must be allowed and it follows that the orders of HHJ Hampton of 30 June 2006 and District Judge Hudson of 20 February 2006 should be set aside and the application by the defendant for summary judgment, pursuant to CPR 24.2, must be dismissed.
Order:  Appeal allowed.