Insufficient evidence of negligence by gynaecologist: G v County Durham and Darlington NHS Foundation Trust (High Court, 30 July 2014 – Sir David Eady)

Abstract

some bearing on the killing. Although the conviction of manslaughter on the grounds of diminished responsibility implied acceptance that F was, at least in 2007, suffering from a disease of the mind, that did not mean that he lacked capacity to give or withhold his consent to his daughter being told of the diagnosis. The Mental Capacity Act 2005 states that a person is assumed to have capacity until the contrary is established. Capacity is to be determined by issue. Although the claimant pleaded that she was undergoing family therapy with the defendants, the court was not persuaded that this significantly affected the viability of her case. None of the defendants were obliged to disclose to some family members information, which they held under a duty of confidence to another family member. The duty of care which the claimant was trying to construct was entirely novel. On the other hand, the defendants pointed to authorities which strongly suggested that no such duty would be owed. For example, in D v East Berkshire NHS Trust [2005] 2 AC 373, the House of Lords dismissed claims from parents wrongly suspected of child abuse in situations where their children were the patients. This was not a case where the claimant could show that a novel duty of care would be but an incremental development from some well-established duty. It would, on the contrary, be a radical departure to impose liability in circumstances such as these. The submission that there was a special relationship between the defendants and the claimant would be rejected. Cumulatively, the defendants’ submissions provided a formidable argument as to why it would not be fair, just or reasonable to find a duty of care of the type for which the claimant contended. While there had been numerous judicial warnings about the caution which must be exercised before striking out a claim at the pleadings stage, if it was plain and certain that the pleaded facts did not disclose a reasonable cause of action, it was to the advantage of all concerned that the claim should not proceed to what would be a costly but inevitably fruitless trial. The court had reached the clear conclusion that this was how the claimant’s cause of action in negligence should be described. The claim was bound to fail and should be struck out. The claimant had added a claim under the Human Rights Act (Article 8 – right to respect for private and family life) as an afterthought. The trusts argued that even assuming Article 8 was engaged, any interference would plainly be justified under Article 8 (2). For all the reasons set out in the context of the common law claim, the balance came down decisively against the claimant. The convention did not assist her. It followed that the application to strike out was successful. Elizabeth-Anne Gumbel QC and Henry Witcomb (instructed by Field Fisher) appeared for the claimant. Philip Havers QC (instructed by Capsticks) appeared for the defendants.