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Selwood v Durham County Council, Court of Appeal, 18 July 2012

1 August 2012
The issues

Assumption of responsibility – Human Rights – Article 2 – duty owed to non employee – integrated services

The facts

The claimant brought an action for personal injuries against Durham County Council which was her employer and two NHS Trusts with whom she worked in the course of her employment. She was a senior social worker in the Children in Need team based in South Islington and the designated social worker for a daughter of GB, a mentally disturbed man.

Family proceedings were on foot relating to GB’s children including the daughter. The Tees, Esk and Wear Valley NHS Foundation Trust who were the second defendant operated a Child and Adolescent Mental Health Services team (CAMHS). This team was involved in the care of two of GB’s children including the daughter. They also operated a Community Mental Health Team (CMHT) and a crisis resolution team (CRT). The CMHT was an integrated health and social care team staffed by health staff employed by the second defendant and social workers employed by Durham. GB was a patient of the CMHT and CRT.

The third defendant was the Northumberland Tyne and Wear NHS Foundation Trust which operated a small acute mental health admissions ward at Cherry Knowle Hospital. Dr Gupta was a consultant psychiatrist in charge of that ward. GB was from time to time an in-patient under Dr Gupta’s care. Dr Gupta also had responsibilities in connection with the second defendant’s CMHT.

Since Caparo Industries v Dickman (1990) there was no longer any need to look for a particular category of circumstance to provide the additional ‘something’ which would justify the imposition of a duty of care towards a claimant for the actions of a third party

All three defendants signed a protocol entitled ‘Working together in the delivery of services of adult and children’. This set out the working arrangements between the three defendants which had to cooperate in respect of many of their activities. Circumstances giving rise to the claimant’s claim were as follows. GB was referred by his GP to the second defendant’s mental health services. He told the second defendant’s community health nurse that he was involved in family court proceedings and said that they were having an adverse effect on his mental state. He was referred to Dr Gupta and admitted into the Cherry Knowle hospital as a voluntary patient on 1 July 2006. He remained on the ward until 23 August 2006. The medical record dated 21 July 2006 stated that he was known to have a history of violent behaviour and posed a risk of harm to others. On 23 August there was a review meeting attended by representatives of both trusts and Dr Gupta. It reported that GB was “not pleased” with one of the social workers involved in the court case. He referred to her as “the nastiest one”. The second and third defendants knew or ought to have known that GB was referring to the claimant. The information was not passed on either to her or to Durham. On the 24 August GB who was now an out-patient was assessed by the second defendant CRT which noted that he had been aggressive to others to protect his family.

On 31 August he attended a meeting with the CRT and it was noted that he was demonstrating increased anger and panic with a risk of violent outbursts. He referred to someone involved in the court case “who I dislike and wish to harm but I am trying to avoid her”. A member of the CRT telephoned GB’s care co-ordinator, an employee of the second defendant to tell her what GB had said. It was expected that the information would be passed onto the people involved in the court case. On 17 September GB told a meeting of the CMHT and CRT that he was having violent thoughts about particular individuals involved with his and his family care. Dr Gupta was told. A social worker apparently employed by the second defendant telephoned the Durham’s organisation, Social Care Direct, to share that information.

On 13 October GB was re-admitted as a voluntary patient and the record noted paranoid delusions featuring specific individuals. On 16 August a fax arrived at the premises of CMHT addressed to GB care co-coordinator. The co-ordinator was an employee of the second defendant. The claimant and other social workers employed by Durham shared the same office premises and the same fax machine as the CMHT and CRT and the claimant saw and read the fax. It contained information about GB harming another person. She discussed it with the care co-ordinator and speculated whether it might refer to her. She offered to attend a review of GB which was listed to take place on 18 October. On 18 October GB refused permission for the claimant to attend the review saying he would “kill her on the spot” if he saw her. The claimant was not told nor was the first defendant. At the end of the review it was agreed that GB should go home for a week’s leave. The claimant was not told.

A case conference had been convened for 20 October. No security arrangements were made. GB arrived and immediately attacked the claimant causing grave injuries which had a lasting effect. He subsequently pleaded guilty to attempted murder and was sentenced to life imprisonment.

The allegations against the first defendant was that it owed a duty of care as employee. It contended that on the facts there was no breach. It had not known of the threats to the claimant. The allegations against the second defendant were that its employees should have warned the claimant or Durham that GB had been allowed home leave and made threats of violence against her. As against the third defendant it was alleged that it should not have allowed GB to take home leave from 18 October or if it was justified in doing so, they should have warned the claimant or Durham that GB had made threats of violence. In respect of the second and third defendants it was alleged that they had failed to work in accordance with the cooperative approach which they had undertaken to adopt in the policy document ‘working together in the delivery of services to adult and children’. It was further alleged that the second and third defendants breached rights under the European Convention on Human Rights, Article 2, the Right to Life. The second and third defendants applied to strike out the claim intending that they did not owe the claimant any duty of care in respect of the criminal acts of GB who was a third party for whom they were not vicariously liable. The judge struck out the claim against the second and third defendants. The claimant appealed.

The decision

Since Caparo Industries v Dickman (1990) there was no longer any need to look for a particular category of circumstance to provide the additional ‘something’ which would justify the imposition of a duty of care towards a claimant for the actions of a third party. It would suffice if the tripartite test of foreseeability, proximity, fairness, justice and reasonableness was satisfied. It was not necessary for the claimant to show that the defendant assumed any responsibility for some aspect of the claimant’s safety. Assumption of responsibility was one aspect of the wider issue of whether it was fair, just and reasonable to impose a duty of care. Factors relating to foreseeability of harm and proximity of relationship also impinged on the question. Where the defendant was a public authority there would be important additional factors of public policy which had to be considered. Those policy considerations would often be determinative.

It was common ground that a defendant would owe an employer’s duty of care to its employees notwithstanding that there might be a potential conflict of interest between that duty and the defendant’s duty to the recipients of its core service users. If a duty was owed to a limited class of employees for the actions of the third party, the force of some of the policy considerations which rendered a wider duty undesirable was much less than if the duty was said to be owed to the world at large. The claimant was not one of the world at large, but one of a small group of social workers, working in proximity and cooperation with the second and third defendant’s own employees. It was important that social workers who undertook difficult and sometimes dangerous work should be protected so far as was practicable. This was an aspect of public policy which ought to have been included in the consideration of what was fair, just and reasonable. The judge had erred in failing to consider the special position of this claimant. It was arguable, taking the particular relationship between the parties into account to conclude that it was fair, just and reasonable to impose a duty of care on the NHS Trusts.

It was also arguable that Trusts may have breached the rights under the European Convention of Human Rights Article 2. It was arguable that the position of a NHS Trust was analogous to the position of the police who might be under an operational duty to all a person whom they need was at a real and immediate of risk of being killed by a person with whom they had been involved. All depended on whether the necessary factual nexus existed.

Appeal allowed – matters remitted for trial.

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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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