Our Expertise

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.

Abigail Telford represented the family in the inquest of Kyle Lewis

<!-- wp:paragraph --> <p>Abigail Telford, instructed by <a href="https://www.howellsllp.com/staff/amy-fiddler/">Amy Fiddler</a> at Howells LLP recently acted on behalf of the family in the inquest of Kyle Lewis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Kyle Lewis, aged five, died on the 28 October 2022 after inhaling a drawing pin at his uncle’s house in Rotherham. An inquest at Doncaster Coroner's Court on January 18<sup>th</sup> found Kyle’s death to be an accident.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On BBC Look North, in a statement read outside court by Abigail Telford, on behalf of Kyle’s family “As a family we want to thank Leeds for the care and compassion they showed to us. During Kyle’s final hours and days, they let us lay in bed and cuddle Kyle. They would play Jurassic World to him as they knew it was his favourite. Nothing was too much as they knew every minute and second with Kyle was so important as it could be our last.” Watch the news story <a href="https://www.bbc.co.uk/iplayer/episode/m001vgyf/look-north-yorkshire-evening-news-18012024">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The full statement read out on behalf of the family by Abigail is mentioned in the Sheffield Star, you can read the full story in the Sheffield Star Newspaper <a href="https://www.msn.com/en-gb/news/world/kyle-lewis-death-of-boy-5-who-passed-away-after-swallowing-a-drawing-pin-ruled-to-be-accidental/ar-AA1ncLrB">here</a>.</p> <!-- /wp:paragraph -->

Secondary victims: the Supreme Court provides guidance for clinical negligence claims

<!-- wp:paragraph --> <p><strong><em>Paul, Polmear and Purchase and another v Royal Wolverhampton NHS Trust</em> [2024] UKSC 1</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>By way of three conjoined cases, the Supreme Court considered the issue of secondary victim claims in the context of medical negligence where the event giving rise to the psychiatric injury was distinct in time from the initial negligence to the patient.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Factual Circumstances of the Cases</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Paul</em>: Mr Paul attended hospital with chest pain. One year later, whist out with his daughters, he collapsed due to a heart attack, hit his head and suffered a brain bleed and died. Mr Paul’s daughters claimed for psychiatric injuries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Polmear</em>: Esme, a 6-year-old child, was misdiagnosed and as a result collapsed 6 months later. Her parents saw Esme lying on the floor and resuscitation attempts being made. One of her parents attempted CPR. Esme’s parents suffered with PTSD and depression. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Purchase:</em> Miss Purchase was misdiagnosed with a respiratory tract infection as opposed to pneumonia. Three days later, her mother, the claimant, went out for the evening. Upon her return, she found Miss Purchase unconscious with her phone in her hand. Efforts to resuscitate Miss Purchase were unsuccessful. The claimant found that she had a voicemail from her daughter recording her last minutes. The claimant suffered PTSD, anxiety and depression.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Court of Appeal</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before the Court of Appeal, there was no dispute that, in principle, secondary victim claims could be made for psychiatric injuries sustained in clinical negligence claims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal held that it was bound by the five stage <em>Alcock </em>test as applied by the Court of Appeal in <em>Taylor v A </em>Novo [2013] EWCA Civ 194<em>. </em>This therefore meant that a claim could not succeed where the shocking event that gave rise to a secondary victim’s injuries was removed in time and space from the negligence that gave rise to that eventual shocking event.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On that basis, the claims in each of these cases failed before the Court of Appeal but permission was granted to appeal to the Supreme Court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Supreme Court</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Supreme Court provided a lengthy judgment addressing secondary victim claims. This is a very significant judgement that clarifies a number of aspects of the test applied in secondary victims cases, but also suggests that the reasoning in many previous cases has been flawed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>The Requirements for a Claim to Succeed</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Supreme Court endorsed the requirements established in <em>Alcock</em> as set out in <em>Frost v Chief Constable of South Yorkshire </em>[1999] 2 AC 455 that a claimant:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li>Must have a close tie of love and affection with the person killed, injured or imperilled;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The claimant must be close to the incident in time and space; and</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The claimant must have perceived the accident themselves.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The Supreme Court has clarified that there is no requirement for there to be:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>A ‘sudden shock’ giving rise to psychiatric injury.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Nor does the event have to be horrifying, noting that this inevitably involves an undesirable comparison of different traumatic events.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The court has also narrowed what is likely to be viewed as the immediate aftermath, criticising the extension of that principle. The court commented that the focus on whether there had been a single sequence of events gave rise to difficulties with interpretation and was an artificial exercise in separating out the index event and the aftermath.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>There must be an ‘accident’</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Supreme Court has made clear that the witnessing of an accident or the immediate aftermath is integral to secondary victim claims and the Court of Appeal had erred in failing to treat the issue of whether there was the occurrence of an accident as material.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court clarified that an accident is “an external event which causes, or has the potential to cause, injury”. The Court affirmed that a claimant must witness the accident itself or the immediate aftermath for a secondary victim claim to succeed.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This need for an accident was held to be because:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li>An accident is a discrete event, which could provide clarity and certainty in determining who is and is not a relevant claimant. &nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Most people would accept that the correct line to be drawn in identifying claimants is to distinguish between those who witnessed an accident and those who did not.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It can be difficult to distinguish between primary and secondary victims in accident cases where, for example, a mother and child are both put in danger and the mother would therefore fear for herself and her child.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The court also noted that it would be undesirable for end-of-life decisions to be complicated by questions of whether allowing a family member to see and be with a patient might give rise to potential liability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>Duty of Care</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court indicated that there has been insufficient focus in secondary victim claims in a medical negligence context on the question of whether doctors owe a duty of care to the family of patients.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The majority in this case held that it cannot be said that a doctor treating a patient has entered into a doctor patient relationship with any of the patient’s family and responsibility for their health is thereby assumed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court stated that the imposition of such a responsibility would go beyond what would be reasonably regarded as the nature and extent of the role of hospitals and doctors in current society.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>Judgment Conclusion</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court concluded that it was necessary to restrict the class of claimants whose claims might succeed to those who are more closely and directly connected to the accident caused by the defendant and apply restrictions capable of being understood by ordinary people. This means, that for secondary victims to succeed, they must have been “present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court expressly stated that it was not expressing a view about claims where there was an accident that took place in a medical setting, such as the injecting of an incorrect drug or dose causing a witnessed adverse reaction.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>Discussion</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the face of the judgment, it would appear that the Supreme Court has limited secondary victim claims in a medical negligence context with its finding that doctors do not owe a duty of care to the family of patients.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Nonetheless, the specific issue of whether or not a doctor owes a duty of care to a family member in a medical accident scenario has been expressly stated to have not been determined. In order for such a claim to succeed, a claimant will have to satisfy the criteria set out in <em>Frost. </em>This willinclude proving physical proximity to the accident or the immediate aftermath, along with establishing that there had been the assumption of a duty of care by the doctor to those family members.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Importantly, in a clinical negligence context, very few claims arise out of ‘accidents’. As such, it is likely that defendants will take a more robust approach in defending these claims and dispute the basic existence of a duty of care owed to the family members.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Even in claims where there are potential accidents, the definition of what will or will not amount to an accident is likely to remain contentious and disputed, and what is likely to be held to be within the immediate aftermath will now be much narrower.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Moreover, a claimant will still have to prove they are worse off than they would have been as a result of bereavement alone and can only recover damages in respect of that portion of the injury (<em>Hinz v Berry </em>[1970] 2 QB 40)<em>.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In reaching their decision, the majority judgment (6-1) has effectively overturned much of the reasoning of previously decided medical negligence claims. It appears to be a judgment in line with other recent authorities by the Supreme Court in the field of clinical negligence and personal injury claims: adopting a more traditional less expansive approach to the law including a shift away from paternalism.</p> <!-- /wp:paragraph -->

Maguire Revisited: Supreme Court hears Article 2 ECHR case

<!-- wp:paragraph --> <p>The Supreme Court has this week heard the appeal in the case of <em>R (on the application of Maguire) v His Majesty’s Senior Coroner for Blackpool &amp; Fylde and another</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case concerns whether or not the state’s Article 2 obligation under the European Convention on Human Rights was engaged where a disabled woman who was deprived of her liberty died and, as a consequence of that engagement, whether an<em> </em>Article 2 jury inquest was required to make findings regarding the circumstances by which her death occurred.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ms Maguire (‘the Deceased’) lived in a residential placement for adults with learning difficulties. She was deprived of her liberty pursuant to a Standard Authorisation made under the Mental Capacity Act 2005.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the weeks before her death, Ms Maguire had been unwell. The evening before her death she lost consciousness and collapsed. An ambulance had attended but left after Ms Maguire refused to attend hospital. A GP advised that she ought to attend hospital but, if she refused, could stay at home.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ms Maguire subsequently collapsed again and was taken to hospital. She was found to be severely dehydrated and suffering an acute kidney injury. Ms Maguire suffered a cardiac arrest and died. A post-mortem recorded her cause of death as a perforated gastric ulcer and pneumonia.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First Instance Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before the coroner, Ms Maguire’s family argued that the circumstances of her death necessitated an inquest that satisfied the procedural obligation under Article 2 (i.e., a conclusion that determined the circumstances of how she came by her death as well as who, where, when and how she died). Despite initially agreeing, upon hearing evidence, the coroner decided that the evidence did not suggest that Jackie’s death may have resulted from a violation of the state’s operational duty to protect life and the procedural duty under Article 2 did not apply. The coroner therefore determined that the jury should reach conclusions only upon the questions of who died, when, where and how.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Appeals</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ms Maguire’s family sought judicial review of this decision. The Divisional Court dismissed the claim for judicial review.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>That decision was then itself appealed the following grounds:&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li>In accordance with the reasoning in&nbsp;<em>Rabone v Pennine Health Care NHS Trust,</em>&nbsp;the circumstances of Jackie’s care meant that the procedural obligation under Article 2 applied;&nbsp;</li><li>The Divisional Court had been wrong to find that the medical care given to Jackie did not evidence systemic failures; and&nbsp;</li><li>The Divisional Court had erred in failing to take into account the wider context of premature deaths of people with learning difficulties which were relevant to the application of Article 2.&nbsp;</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The Court of Appeal heard and dismissed all three grounds of the appeal. It held:&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Only very exceptional circumstances of medical negligence could give rise to a breach of the operational duty under Article 2. &nbsp;In cases of deaths that give rise to or arise from allegations of medical negligence the issue of key importance when considering the applicability of Article 2 is the distinction between systemic failure and ordinary negligence.</li><li>A person being in the care of the state does not necessarily trigger the statutory duty to undertake an Article 2 inquest. Instead, the scope of any operational duty should be considered, with a focus on what the state’s duties were in order to identify whether the operational duty under Article 2 was engaged.</li><li>Ms Maguire’s circumstances should not be considered to be analogous to those of a psychiatric patient detained in hospital to guard against the risk of suicide. She was provided with accommodation because she was unable to live independently or with her family, but if medical treatment was required by Ms Maguire, it would have been provided in the usual way through the NHS. Her circumstances did not, therefore, differ to if she had lived with her family with input from social services.&nbsp;</li><li>Any breach of duty had to be linked to the state’s responsibility. As in the circumstances of a prisoner dying of natural causes where the operational duty was not breached (which would therefore not give rise to an obligation to conduct an Article 2 inquest) there was also no such duty where a vulnerable adult in the care of the state passed away, even if criticisms could be raised about the provision of medical care.</li><li>Article 2 had an impact upon the conclusion of an investigation, but not the content. Article 2 should not impact upon the inquiry undertaken and evidence called. Where Article 2 was engaged, a conclusion could be judgmental, subject to any such conclusion not breaching the prohibition against it expressing a view on criminal or civil liability.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Ms Maguire’s mother appeals to the Supreme Court against the dismissal of her appeal by the Court of Appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Discussion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Pursuant to the procedural obligation under Article 2, a state is required to start an investigation into a death for which it may bear responsibility. In considering the question ‘how’ a person came about their death, the circumstances in which the deceased died must also be considered (section 5(2) Coroners and Justice Act 2009,&nbsp;<em>R v HM Coroner for the Western District of Somerset ex parte&nbsp;Middleton</em>&nbsp;[2004] AC 182).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Domestic and European courts have repeatedly addressed the debate about when the duty is triggered in cases of medical negligence. In recent years, the guidance provided by Strasbourg (<em>Lopes de Sousa Fernandez v Portugal</em>&nbsp;(2018) 66 EHRR 28,&nbsp;Fernandez de Oliveira v Portugal&nbsp;(2019) 69 EHRR 8) has further clarified the relevant issues and emphasised the need for the acts or omissions of health care providers to go beyond simple error or medical negligence. Nonetheless, (other than cases involving self-inflicted deaths) there is a lack of case law that addresses how a state’s Article 2 obligations become relevant in the context of negligent medical treatment provided to adults in the care of the state.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>What was and remains clear is that it is a difficult task to identify which medical deaths give rise to Article 2 obligations.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is hoped that the Supreme Court’s consideration of these issues, particularly in the context of the thorough Court of Appeal judgment (which provided a detailed overview of the key decisions in relation to these issues), will provide some much-welcomed guidance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the interim, the Court of Appeal judgment reminds us that the question of whether Article 2 is engaged involves the application of a high threshold and is an exercise that is fact specific.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is therefore anticipated the Supreme Court’s judgment will be an important decision in which guidance will be provided in relation to the limited circumstances in which Article 2 may be engaged.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Judgment will be handed down at a later date.</p> <!-- /wp:paragraph -->

Clinical Negligence &#038; Personal Injury | &#8216;Law with Lunch&#8217; Webinar Series | 14 July 2022

<!-- wp:paragraph --> <p>Our ‘Law with Lunch’ webinar series in July of bitesize, lunchtime talks continue with Parklane Plowden's award-winning personal injury team to bring you updates covering the legal issues of the moment.</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="tuesday-22nd-march-2022-12-30-pm-zoom-webinar"><strong><strong>Thursday, 14<sup>th</sup> July 2022</strong>, <strong>12.30 pm, Zoom webinar</strong></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Clinical negligence &amp; personal injury barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/james-murphy/" target="_blank" rel="noreferrer noopener">James Murphy</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/abigail-telford/" target="_blank" rel="noreferrer noopener">Abigail Telford</a> will discuss  </p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="section-33-know-your-limitations">'<strong><strong><strong>Pension Loss Calculations: where to start and what to look for</strong></strong></strong>'</h4> <!-- /wp:heading --> <!-- wp:paragraph --> <p>From the latest procedural tips, these sessions are ideal for busy practitioners who want to enjoy their lunch break while updating their legal knowledge.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These events are free, and we expect them to be popular, please book early to avoid disappointment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>For further enquiries or to register, please email <span style="text-decoration: underline;"><a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a></span></strong></p> <!-- /wp:paragraph -->

Inquests Grandstand Event | 15 September 2022 🗓 🗺

<!-- wp:heading --> <h2><strong>EVENT POSTPONED </strong></h2> <!-- /wp:heading --> <!-- wp:paragraph --> <p>Parklane Plowden's Inquests Grandstand Event featuring guest speaker Deputy Chief Coroner, Derek Winter, is scheduled on the 15<sup>th</sup> September 2022. This is a hybrid event, so you can register to attend online or in-person at the <a href="https://www.vermont-hotel.com/" target="_blank" rel="noreferrer noopener">Vermont Hotel</a> in Newcastle.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This event provides seminars covering a range of topics and updates led by Parklane Plowden Chambers' team of Inquests specialists. A downloadable delegate pack will be made available to attendees prior to the event. The pack will include a case law update&nbsp;provided by&nbsp;<a href="https://www.parklaneplowden.co.uk/barristers/abigail-telford" target="_blank" rel="noreferrer noopener"><strong>Abigail Telford</strong></a>&nbsp;and&nbsp;<a href="https://www.parklaneplowden.co.uk/barristers/megan-crowther" target="_blank" rel="noreferrer noopener"><strong>Megan Crowther</strong></a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Our&nbsp;barristers have substantial experience of representing a broad range of interested persons at inquests and public inquiries. They have a proven track record of handling complex and high-profile cases concerning deaths arising in a variety of circumstances and settings. From deaths in custody, to those arising in care homes and other institutions, the wealth of expertise available to bereaved families and corporate bodies is second to none.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>This event is being delivered alongside the newly founded PLP Foundation,&nbsp;created to support local charities and social causes. We invite attendees to make&nbsp;voluntary donations, which&nbsp;will be donated to&nbsp;<a href="https://children-ne.org.uk/" target="_blank" rel="noreferrer noopener">Children North East</a>&nbsp;and the&nbsp;<a href="https://charliewaller.org/" target="_blank" rel="noreferrer noopener">Charlie Waller Trust</a>&nbsp;on behalf of the PLP Foundation.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Programme</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>13:30 - Arrival and Registration</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>13:45 - Welcome and Introduction <br>By <strong><a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/" target="_blank" rel="noreferrer noopener">Leila Benyounes</a></strong> and <strong><a href="https://www.parklaneplowden.co.uk/our-barristers/georgina-nolan/" target="_blank" rel="noreferrer noopener">Georgina Nolan</a></strong>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14:00 - 15:00: <strong>Recent Changes in the Coronial Service</strong><br>By<strong> Derek Winter</strong>, Deputy Chief Coroner and Senior Coroner for Sunderland</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>15:00 - 15:45: <strong>Article 2 and Inquests</strong><br>By <strong><a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/" target="_blank" rel="noreferrer noopener">Leila Benyounes</a></strong> and <strong><a href="https://www.parklaneplowden.co.uk/our-barristers/richard-copnall/" target="_blank" rel="noreferrer noopener">Richard Copnall</a></strong>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>15:45 Tea Break</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>16:00 - 16:45: <strong>Inquest Top Tips: a practical guide to getting the most out of an inquest</strong><br>By <strong><a href="https://www.parklaneplowden.co.uk/our-barristers/georgina-nolan/" target="_blank" rel="noreferrer noopener">Georgina Nolan</a></strong> and <strong><a href="https://www.parklaneplowden.co.uk/our-barristers/bronia-hartley/" target="_blank" rel="noreferrer noopener">Bronia Hartley</a></strong>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>16:45 - 17:15: <strong>Inquest Costs and Funding</strong><br>By <strong><a href="https://www.parklaneplowden.co.uk/our-barristers/tom-semple/" target="_blank" rel="noreferrer noopener">Tom Semple</a></strong>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>17:15 - Questions/Closing Remarks</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>17:30 - Social</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:heading {"level":5} --> <h5><s><strong>Register for the Inquests Team Grandstand</strong> <strong>Event</strong>, select online or in person.</s></h5> <!-- /wp:heading --> <!-- wp:paragraph --> <p>Find out more about our Inquests and Inquiries team on this <a href="https://www.parklaneplowden.co.uk/expertise/inquests-inquiries-barristers/" target="_blank" rel="noreferrer noopener">page</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For further enquiries please email&nbsp;<a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a>&nbsp;</p> <!-- /wp:paragraph -->

Clinical Negligence &#038; Personal Injury | ‘Law with Lunch’ Webinar Series | April 2022

<!-- wp:paragraph --> <p>Our April ‘Law with Lunch’ webinar series of bitesize, lunchtime talks covering the legal issues of the moment are not to be missed.</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","fontSize":"medium"} --> <h2 class="has-text-align-center has-medium-font-size" id="tuesday-5th-april-2022-12-30-pm-zoom-webinar"><strong>Tuesday, 5th April 2022, 12.30 pm, Zoom webinar</strong>&nbsp;</h2> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Barristers and clinical negligence and personal injury specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/abigail-telford/" target="_blank" rel="noreferrer noopener">Abigail Telford</a> &amp; <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-firth/" target="_blank" rel="noreferrer noopener">Sophie Firth</a> will discuss&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","fontSize":"medium"} --> <h2 class="has-text-align-center has-medium-font-size" id="cru-how-it-works-what-benefits-are-offsetable-against-what-damages-common-misconceptions">CRU, how it works, what benefits are offsetable against what damages, common misconceptions</h2> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">--0--</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","fontSize":"medium"} --> <h2 class="has-text-align-center has-medium-font-size" id="wednesday-27th-april-2022-12-30-pm-zoom-webinar"><strong>Wednesday, 27th April 2022, 12.30 pm, Zoom webinar</strong>&nbsp;</h2> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Barristers and clinical negligence specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/peter-yates/" target="_blank" rel="noreferrer noopener">Peter Yates</a> &amp; <a href="https://www.parklaneplowden.co.uk/our-barristers/tom-semple/" target="_blank" rel="noreferrer noopener">Tom Semple</a> will discuss</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","fontSize":"medium"} --> <h2 class="has-text-align-center has-medium-font-size" id="clinical-negligence-case-law-update">Clinical Negligence Case Law Update</h2> <!-- /wp:heading --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From the latest procedural tips, these sessions are ideal for busy practitioners who want to enjoy their lunch break while updating their legal knowledge.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These events are free, and we expect them to be popular, please book early to avoid disappointment and for further enquiries or to attend, please email <span style="text-decoration: underline;"><a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a>&nbsp;&nbsp;</span></p> <!-- /wp:paragraph -->

<em>Hughes V Rattan </em>[2022] EWCA Civ 107: Non-delegable duties and vicarious liability: a case summary to sink your teeth into

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/abigail-telford/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Abigail Telford</span></a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p id="summary"><strong>Summary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Defendant was a dental practice owner who owed the Claimant a non-delegable duty of care in respect of the treatment provided to her by self-employed Associate Dentists. He was not, however vicariously liable for their actions on the basis that the relationship between the Defendant and Associate Dentists was not one akin to employment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p id="case-note"><strong>Case Note</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Between August 2009 and December 2015, the Claimant received dental treatment at the Manor Park Dental Practice (“the Practice”). The Practice was owned by Dr Rattan (“the Defendant”), who was the principal dentist and Practice Owner.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant brought a claim against the Defendant in relation to treatment provided to her by against four Associate Dentists.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Defendant denied that he was liable either by virtue of vicarious liability or a non-delegable duty of care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As a preliminary issue, the case addressed matters of the duty owed by the Defendant to the Claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At first instance, Heather Williams QC (now Heather Williams J) found for the Claimant in relation to both vicarious liability and the non-delegable duty of care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p id="non-delegable-duty"><strong>Non-delegable duty</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On appeal the Court of Appeal held that the Claimant satisfied the five criteria identified by Lord Sumption at paragraph 23 of <em>Woodland v Swimming Teachers Association and others </em>[2014] AC 537 such that the Defendant owed her a non-delegable duty of care:</p> <!-- /wp:paragraph --> <!-- wp:group --> <div class="wp-block-group"><!-- wp:group --> <div class="wp-block-group"><!-- wp:group --> <div class="wp-block-group"><!-- wp:list {"ordered":true} --> <ol><li>The Claimant was a patient and was therefore vulnerable or dependent upon the protection of the Defendant against the risk of injury.</li><li>An antecedent relationship between the Defendant and the Claimant was established on each occasion that the Claimant signed a Personal Dental Treatment Plan, which she was required to do before NHS treatment was carried out. This placed the Claimant in the Defendant’s care because he was the owner of the Practice. The duty was a positive one to protect the patient from injury, not simply to avoid acting in a way that foreseeably caused injury, and it involved an element of control over the patient.</li><li>The Claimant had no control over how the Defendant chose to perform his obligations. Any preference she expressed to a choice of dentist was only a preference. &nbsp;</li><li>Criteria 4 and 5 were not in issue. The Defendant had delegated to a third party a function that was integral to the positive duty owed (4) and that party had been negligent in how it performed that function (5).</li></ol> <!-- /wp:list --></div> <!-- /wp:group --></div> <!-- /wp:group --></div> <!-- /wp:group --> <!-- wp:paragraph --> <p>Accordingly, the appeal was dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p id="vicarious-liability"><strong>Vicarious liability</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although the Claimant had been successful in respect of the non-delegable duty of care, the Court nonetheless went on to express its views as to vicarious liability on an obiter basis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In summary, the Defendant averred that the judge attached too much weight to factors suggesting his relationship with Associate Dentists was akin to employment and insufficient weight to factors pointing in the other direction.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court noted that in <em>Various Claimants v Barclays Bank Plc </em>[2020] UKSC 13Baroness Hale stated that “<em>the question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant</em>”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal found that in this case, this criteria was not met for various reasons including:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Associate Dentists were free to work at the Practice for as many or as few hours as they liked and for other Practice Owners and business owners.</li><li>&nbsp;The Defendant had no right to control nor had he sought to exercise any control over the clinical decision made nor the manner treatment was carried out.</li><li>Associate Dentists were responsible for their own tax and national insurance payments and were treated as independent contractors by HMRC.</li><li>The Defendant took most financial risks, but Associate Dentists shared the risk of bad debts.</li><li>Associate Dentists were required to indemnify the Defendant against any claims made against him in respect of their treatment of patients.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Although there were some factors weighing in the other direction, those factors did not outweigh other factors against a finding of vicarious liability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p id="opinion"><strong>Opinion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is a useful case in when considering non-delegable duties of care and vicarious liability in that it sets out some of the factors that can work in favour and against such findings, particularly where there is not a clear employer-employee relationship.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p id="author"><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/abigail-telford/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Abigail</span></a> is a specialist clinical negligence and personal injury barrister at Parklane Plowden.</p> <!-- /wp:paragraph -->