It’s time to adopt a more mature approach to liability, says Charles Foster
- An NHS Trust as a whole owes a duty to claimants. This includes a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury.
- Non-clinical staff play a part in the discharge of this duty. Whether they have discharged it will depend on what it is reasonable to expect them to do.
- The notion of contributory negligence should not be conflated with the notion of the causation required to establish primary liability.
The Supreme Court’s latest foray into clinical negligence, Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, [2018] All ER (D) 41 (Oct) will be widely cited —and usually, I expect, for precisely the wrong reasons. It will be relied upon as authority for the proposition that NHS Trusts, via their administrative staff, owe a duty of care to take reasonable steps to avoid foreseeable physical injury to patients, whereas it is primarily authority for the proposition that no new authority to that effect is needed. In some ways, then,
