Bishara v Sheffield Teaching Hospitals NHS Trust [2007] EWCA Civ 353 (26 March 2007)

A dental house officer suffered a migraine attack during a career advice meeting. She claimed the interviewer abandoned her on the stairs without calling help. The Court of Appeal allowed her appeal against summary judgment, holding that whether a duty of care existed required factual determination applying Caparo principles.

Facts

The appellant, Dr Bishara, was employed by Barnsley District General Hospital as a house officer in dental surgery. On 6 September 2000, she attended the respondent’s premises (Charles Clifford Hospital) to receive career advice from the regional postgraduate dental dean, Dr Franklin. The appellant claimed that towards the end of a distressing interview, she suffered a severe migraine attack. She alleged she asked Dr Franklin to call an ambulance, but he terminated the interview and left her collapsed on the stairs outside his office for approximately four hours, causing lasting consequences.

The respondent’s case was that Dr Franklin only became aware of the appellant’s condition after the interview when told she was sitting on the stairs, and that staff did all they could to assist her thereafter.

Procedural History

District Judge Hudson granted the respondent’s application for summary judgment under CPR Part 24 on the basis that there was no employment relationship between the parties. On appeal, HHJ Hampton at Lincoln County Court upheld the striking out on both the employment ground and on the basis that no duty of care arose in the circumstances.

Lower Court Reasoning

HHJ Hampton stated:

There is, in my judgment, no general duty in the circumstances, even as they are described by the claimant. The defendant and defendant’s employees would be in the position of a good Samaritan, they having no duty either as servants or agents of the defendant or as, so to speak, colleagues of the claimant because the claimant is not able to put forwards any evidence that is inherently probable to assert that she was an employee of the defendant.

Issues

The key issue before the Court of Appeal was whether the appellant’s claim had a real prospect of success such that summary judgment should not have been granted. This required consideration of whether a duty of care could arise from the circumstances of the visit and incident, applying the three-fold test from Caparo Industries PLC v Dickman [1990] 2 AC 605.

Judgment

Lord Justice Sedley delivered the leading judgment, with Lord Justice Ward concurring.

Application of Caparo Principles

The Court noted that neither party had reminded the lower courts of the key authority, Caparo Industries PLC v Dickman. Lord Justice Sedley cited Lord Bridge’s formulation of the requirements for a duty of care:

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.

Good Samaritan Defence

The Court considered the ‘Good Samaritan’ principle from Dorset Yacht Co Ltd v Home Office [1970] AC 1004, but held this was not simply a bystander case. If the appellant’s account was believed, this was a case of a colleague in a supervisory role conducting a stressful meeting who declined to summon help when she became ill and left her in distress.

Need for Factual Determination

The Court held that the contested facts were crucial and could not be determined on a summary judgment application. Smith LJ, in granting permission to appeal, had observed:

In general where a duty of care is to be referred from the circumstances, it does not arise from one of the established duties of relationships, it is preferable for the judge to hear the evidence so as to establish what the actual circumstances were before deciding that issue.

Lord Justice Sedley concluded that if the appellant’s version of events was believed, it would be arguable that the particular situation was one of sufficient proximity to take Dr Franklin out of the role of bystander and to require him to take reasonable steps to protect the appellant’s wellbeing.

Decision

The appeal was allowed. The orders of HHJ Hampton and District Judge Hudson were set aside, and the defendant’s application for summary judgment was dismissed. The case was remitted to proceed to trial.

Implications

This case confirms that where a duty of care is sought to be established from novel circumstances rather than established relationships, it is generally inappropriate to determine the issue on summary judgment without hearing evidence. The Caparo three-fold test (foreseeability, proximity, and fairness/reasonableness) must be applied to established facts.

The case also demonstrates that the ‘Good Samaritan’ principle excluding liability for mere bystanders may not apply where the relationship between the parties involves a degree of supervision or professional responsibility, even outside an employment relationship.

Both judges strongly urged the parties to consider mediation before incurring further costs, noting the appellant’s exposure to substantial legal costs if unsuccessful at trial.

Verdict: Appeal allowed. The orders of HHJ Hampton and District Judge Hudson were set aside, and the defendant’s application for summary judgment pursuant to CPR 24.2 was dismissed. The claim was remitted to proceed to trial.

Source: Bishara v Sheffield Teaching Hospitals NHS Trust [2007] EWCA Civ 353 (26 March 2007)