Clinical negligence: court finds no duty of care owed to third party and considers grounds for striking out claim for failure to comply with directions

In Bot v Barnick, separate claims by Ms Bot and her partner Mr Whitehead against two medical professionals were subject to successful strike out applications. The decision to strike out each of the claims provides guidance as to what might constitute a ‘reasonable cause of action’ against medical professionals and also highlights some of the reasons why claims may be struck out more generally.

Background

Ms Bot was a patient at Portland Hospital in 2011 and gave birth to her second child by way of caesarean section. She developed a haematoma in her wound and was re-admitted to the hospital under the care of a consultant obstetrician, Mr Barnick. Whilst in hospital, she developed postpartum psychosis which led subsequently to treatment from a consultant psychiatrist, Dr Bourke.

During this time, Ms Bot began to make strange statements. These included assertions that she had been visited by a Cameroonian gang leader and that threats had been made against her life. Dr Bourke reached the conclusion that these statements were not the result of her psychiatric condition, and instead were truthful and required police attention. He told Ms Bot’s partner, Mr Whitehead, of this, and when Ms Bot was discharged from Portland Hospital, Mr Whitehead took her directly to Islington Police Station where she was sectioned under the Mental Health Act 1983.

Ms Bot brought a claim against Mr Barnick and Dr Bourke (the defendants) in respect of alleged negligence (the First Claim). At the same time, Mr Whitehead brought a claim against Mr Barnick, Dr Bourke and Portland Hospital for economic loss in contract and tort (the Second Claim). Mr Whitehead claimed that Dr Bourke’s advice regarding Ms Bot’s comments led him to fear for his safety and that of his children to the extent that he had to give up his job and move his family out of London.

Both claims were subject to strike out applications from the defendants. The first of these, in relation to Mr Whitehead’s claim, was heard in 2018.

2018 Strike Out Application

In the First Claim, the defendants succeeded in bringing an application for strike out, on the basis that the claim showed no reasonable cause of action and/or that there was no real prospect of success. Chief amongst the defendants’ arguments was that they owed no contractual obligation or duty of care to Mr Whitehead, who had brought claims in both contract and in tort.

Mr Whitehead’s claim in contract was rejected as there was no direct or indirect contract between himself and the hospital. Whilst he suggested several means by which a contract might have come into existence, including the fact that Ms Bot was treated under his insurance policy, the court gave this little consideration. To imply a contract in these circumstances would raise the risk of a conflict in relation to the duties of care and confidence owed by the defendants to Ms Bot and Mr Whitehead. Such a contract also imposed additional liability on the defendants, and the court had no doubt that the defendants would have declined to assume this additional liability, which was uncertain in nature and scope.

Mr Whitehead’s claim in tort was also rejected. The defendants argued that Mr Whitehead could not show they owed him any duty of care, which extended to protecting him against pure economic loss. The court agreed with this argument, relying heavily on the decision in West Bromwich Albion FC v El Safty (2007). In that case, it was found that a doctor treating a football player owed no duty of care to his football club for any financial loss. The contract was between the doctor and his patient, and the dominant context was the football player’s health, not his employer’s financial security. As a result, the proximity required to give rise to a duty of care was not present. As an analogous case, Mr Whitehead’s claim therefore failed to establish the existence of a duty of care owed to him by the defendants.

The court also disagreed with Mr Whitehead’s causation argument. He proposed that the advice he was given by the Dr Bourke led him to believe that his wife was not mentally unwell and that her statements were truthful. This in turn allegedly caused his financial loss. However, the court noted that Ms Bot’s sectioning under the Mental Health Act, immediately after her discharge from hospital and prior to any of the losses being incurred, must have led Mr Whitehead to doubt the defendants’ advice. How

2019 Strike-Out Application

In the Second Claim, Ms Bot’s claim for clinical negligence was the subject of a strike out application in December 2019. The claim was issued in December 2016, with directions first given by the court in January 2018 and the trial window set for 24 February 2020 to 4 March 2020. At the point of the strike out application, however, the claimant was yet to provide any evidence to support her claim against Mr Barnick and had not made herself available to be examined by the Dr Bourke’s psychiatric condition and prognosis expert. This was despite several extensions to the deadline by which expert evidence was to be exchanged, including one ‘final’ extension to 18 September 2019.

The defendants made a contested application in November 2019 seeking several orders from the Court, among which was the striking out of the claim against the first defendant. The court considered that, whilst the claimant had set out the basis on which the First Defendant was liable in the claim itself, this was now entirely unsupported by any evidence. Further, nothing had been submitted by the claimant to suggest that any evidence would be forthcoming within a reasonable period of time, or to justify the significant delay. The court ultimately decided to strike out the claim due to Ms Bot’s persistent failure to meet directions ordered.

Comment

The First Claim provides guidance as to what will form the basis of a party’s reasonable cause of action in terms of the duty of care owed by medical professionals. The court was clear in its definition of contractual formation and when it is fair, just and reasonable to impose a tortious duty of care. As a result, healthcare providers can be more certain of their liability when it comes to third parties who might be claiming for economic loss.

The Second Claim in 2019 emphasises that a party’s:

1. failure to comply with court directions may lead to claims being struck-out; and
2. reputational concerns will be taken into account by the court when deciding whether or not to strike out a claim that has been prolonged unnecessarily by the actions of another party.

Further reading:

Bot v Barnick [2018] EWHC 3132 (QB).

Bot v Barnick [2019] EWHC 3704 (QB).