Scope of Duty since K v MNX: where are we now? A two-part series: Part 1

I will preface this blog by saying that due to the sheer number of relevant cases (I have referenced 5 in total) this blog has been split into two parts. I would urge you to read both parts for the complete overview. In part 1 below I have referred to two cases and Part 2 contains the final three, including a brief comment on the decision in Paul v Royal Wolverhampton NHS Trust.

In June 2021 I wrote about the Supreme Court decision in K v MNX and whether or not this represented a narrowing of the scope of duty of care in clinical negligence claims, or whether it was in fact the correct interpretation. It has been over 2 years since the Supreme Court attempted to provide clarity on the role of scope of duty in clinical negligence claims. The decision gave practitioners 6 key questions to ask:

1. Is the harm (loss, injury, and damage) which is the subject matter of the claim actionable in negligence? (the actionability question)
2. What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question)
3. Did the defendant breach his or her duty by his or her act or omission? (the breach question)
4. Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question)
5. Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question)
6. Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question).

Interestingly, since 2021 there have been relatively few decisions which formally address the scope of duty principles elucidated in K v MNX and even less which have done so in a clinical negligence context. Below is a round up of some of the key decisions since then:

Hazel Kennedy v Dr Jonathan Frankel [2019] EWHC 106 (QB)

It never bodes well starting off with a case which was technically decided before the Supreme Court considered matters in K v MNX, but as it is one of the few decisions in a pure clinical negligence context, it is arguably worth noting.

Background facts

Briefly, the Claimant in this case, Mrs Kennedy, was suspected to be suffering from early onset Parkinson’s Disease. She was prescribed a dopamine agonist, one of the potential side effects was Impulse Control Disorder (ICD). The Claimant alleged that the Defendant failed to advise the Claimant appropriately of this risk and failed to respond sufficiently timeously once she started to display signs of this.

Legal arguments

After the exchange of Skeleton Arguments, the Defendant sought to introduce an additional argument that had not previously been raised in his defence: namely that the Claimant’s additional symptoms of psychosis were a “coincidental injury” and fell outside of the scope of the Defendant’s duty to warn. This was on the basis that psychosis was an extremely rare complication and it would not have been reasonable for the Defendant to warn the Claimant of it. Ultimately, Mrs Justice Yip reached the conclusion she did not need to hear arguments on the matter at trial, as whether or not the issue was relevant depended upon the breach and duty and causation findings she would ultimately make and hearing arguments on the matter in full would likely delay the trial. This was because, given the lateness in the day the issue was raised, neither expert had been asked to consider this point. Judgment was, therefore, limited to breach of duty and causation, excluding scope of duty, the latter deferred to any future quantum trial. The quantum element of the claim settled shortly after the Claimant succeeded on liability, so ultimately the matter was not considered.

DD v NHS Fife Health Board [2022] SAC (Civ) 27

Background facts

This was a Scottish Appeal case from the Sheriff’s Appeal Court relating to the assessments and treatment the Claimant received from a medical practitioner whilst under a Short-Term Detention Certificate (STDC). The facts of this case are complex, but in short, the Claimant saw various medical professionals whilst under an STDC. The STDC was revoked by Dr N and the Claimant was eventually discharged. After discharge, the Claimant was arrested on several occasions due to his aggressive and manic behaviour, DD appeared at the Sherrif’s Court on three separate occasions and was charged with assaulting a police officer. He was eventually made the subject of a Compulsive Treatment Order.

Legal arguments and the decision

The Claimant claimed that by revoking the order, he suffered from symptoms of prolonged, untreated illness without fixed abode. In addition to this, he also suffered from stress, anxiety, and pain, suffering and discomfort from sleeping in his car and walking around in the cold inadequately clothed. The Defendant claimed that the Claimant could not recover damages for his criminal conduct under the doctrine of ex turpi but in addition to this, it was argued that it was not within the scope of Dr N’s duty to prevent the Claimant was sleeping in his car etc.. At First Instance, the Sheriff concluded that scope of duty arguments did not apply, preferring a straightforward “but for” analysis; however, on appeal the Court overturned the decision of the Sheriff and held that K v MNX did apply.

The Scottish Appeal Court looked at the principles in K v MNX and noted that a significant aspect of the English Appeal Court’s decision was based upon the link between the duty of care and the losses which a Claimant seeks to recover; however, neither party had adduced evidence as to the scope of a medical practitioner’s role, responsibilities and duties under the relevant statutory framework. The parties had agreed at First Instance that an STDC could be subject to a negligence claim in tort law, but the Appeal Court felt restricted by the lack of evidence as to what extent exercise of a statutory function could be subject to a negligence claim in tort.

There are three further examples of significant scope of duty case law which I have expanded upon in Part 2 of this blog. There will also find my conclusions and some practical considerations for practitioners when it comes to scope of duty.