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Godden & Others v Kent & Medway Strategic Health Authority, High Court, 8 July 2004

10 August 2004
The issues

Striking Out – Vicarious Liability – Health Authority’s Liability for Abuse/Assault By General Practitioner

The facts

Dr Ayling was a General Practitioner. 31 former patients claimed damages on the grounds that he had assaulted them, generally indecently, and in some cases treated them negligently between 1993 and 2000. Dr Ayling had been convicted of 13 counts of indecent assaults and struck off the medical register. 13 claims had brought proceedings directly against him in the County Court and had been awarded damages which had not yet been paid. Dr Ayling was bankrupt.

The Claimant brought proceedings against Kent & Medway Strategic Health Authority. The Kent & Medway Strategic Health Authority was the successor to East Kent Health Authority which was in itself successor to the Kent Family Health Service Authority. That body had been established by the National Health Service Act 1977. The Act at Section 10 established family practitioner committees. Part 2 of the Act was concerned with general medical and other services and Section 29 dealt with arrangements and regulations for general medical services. It imposed various duties on family practitioner committees to arrange with medical practitioners to provide personal medical services for people in the locality. This included removing from the list of medical practitioners individuals and preparing and publishing lists of medical practitioners who undertook general medical services.

The first Claimant alleged that Kent & Medway were in breach of their statutory duty to monitor General Practitioners in its area and take all reasonable steps to ensure that General Practitioners within their area provided a safe and competent medical service. There was a secondary claim based on the Kent & Medway’s alleged vicarious liability for its employees. Kent & Medway applied to strike out the claim.

The decision

1. The 1977 Act did not create any private right of action. It was concerned with the structure and administration of the National Health Service and ensuring its comprehensiveness. It did not provide that Kent & Medway was responsible for the provision of medical services. That responsibility lay with the General Practitioners.

2. It did not give rise to a common law duty of care. See Gorringe v Calderdale. Insofar as the claim of a Claimant’s was based on a duty said to arise out of the 1977 Act and in particular Section 29 disclosed no reasonable grounds and would be struck out.

3. The claim for vicarious liability was probably a novel claim. No authorities had been provided arguing for its existence. However, it was not in itself ground for striking it out. The common law developed incrementally and there would always be new cases when new ground in the law of negligence would be broken. It was argued on behalf of the Defendant that the policy underlying the 1977 Act was inconsistent with the existence of a common law duty and that in effect such duty was excluded by the terms of the 1977 Act. There was nothing detectable in the 1977 Act however which could be said to exclude the existence of the common law duty. It is true that it established a public law scheme but it did not appear to the Judge to rule out vicarious liability contended for by the Claimants.

4. There were powerful arguments nonetheless against the establishment of such a duty of care. In order to find such a duty the test in Caparo v Dickman had to be considered. The Defendant argued that such a duty satisfied neither the condition of proximity nor the condition of fairness, justice or reasonableness. However this was a developing area of law and caution had to be exercised before striking out claims. The second ground on which the Claimants based their claim, namely vicarious liability would not be struck out.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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