England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION LEEDS DISTRICT REGISTRY
(MR RECORDER BURRELL QC, SITTING AS A DEPUTY HIGH COURT JUDGE)

		Royal Courts of Justice Strand London, WC2 Wednesday, 23 October 2002

Wednesday, 23 October 2002

1. LORD JUSTICE SCHIEMANN: Before the court is a claimant's appeal in a negligence action from a judgment given by Mr Recorder Burrell QC, sitting at Leeds District Registry. The facts are not substantially in dispute and are well set out in the clear judgment of the recorder, from which I take most of what follows before turning to the criticisms made of that judgment.
2. Susan Cook was employed as a health care assistant with the Bradford Community Health NHS Trust at the Kestrel unit of Lynfield Mount Psychiatric Hospital in Bradford. Prior to the matter complained of, she had been there some six months or so. She brings a claim in negligence, complaining that the first defendants are responsible for an attack upon her by one of the patients on 14 June 1998. That patient was the second defendant. He has since died and has played no part in this action.
3. At the time of the attack Miss Cook was aged 44. The matters complained of occurred in what is referred to as the "seclusion suite" of the unit. Due to the patient's earlier behaviour and violence he was placed in what has been referred to as "open seclusion" within the suite. There is a plan in our bundle and we have been shown some photographs. The plan indicates that there were two seclusion rooms which fronted on to a sort of internal corridor area referred to as the observation area. Each of the seclusion rooms had an opening into it and one could sit in the observation area and look through observation windows into the seclusion room to see how the patient was behaving. From the seclusion room there was a door on to the corridor which could in principle be opened. At one end of the corridor area there was a toilet and washing facility which had been provided for anyone in the seclusion suite.
4. The patient was being cared for in seclusion room 1 and two other health care assistants, a Mr Hussain and a Mr Vernon, were his immediate carers and observers, having been detailed to keep observation on him from the observation area.
5. The background and character of the unfortunate patient was found by the learned record to be as follows:

"He was plainly unstable, unpredictable and dangerous. His reaction to real and imagined slights was one often of violence. He suffered from paranoid schozophrenia."

6. The recorder then recited something from the patient's medical notes and then turned to his recent behaviour prior to the incident complained of, which was identified in a schedule of violent incidents which was before the learned recorder. That showed that in January 1998 the patient expressed feelings of wanting to hit a fellow patient and wanting to hit the staff as he thought they were eating his brain. He punched a patient in February because he felt that the patient was winding him up and he stated that he was glad he had hit him and wished that the patient was dead.
7. There were a number of other incidents. By 4 April 1998 he punched a female patient in the right eye. He laughed and said it was because she called him names. He was abusive and physically threatening to a female staff member; he challenged her to a fight. He lashed out and kicked a male staff member raising his fists to attack him for which he required restraint. He challenged a male staff member to a fight and then attacked him, and he required restraint. He was hostile and threatening towards the staff. He said he would attack a female member of the staff. He threatened to attack named nurses. He threw a cup of tea at a staff member. He punched a female member of staff when asking for a light for his cigarette. All this in one day.
8. On 7th May 1998 he threatened to throw hot drinks over the staff and stated he could quite easily stab someone with a knife.
9. On 9 June he attacked another patient for no apparent reason as he walked into the room, hitting him numerous times over the head, saying this was due to spiritual events. He threatened the staff and stated he wanted to hit everybody, and he kicked and punched furniture in the seclusion room.
10. Then we come to the date of the incident with which we are concerned, namely 14 June. He had punched another patient in the face at 7.10 am. He was immediately taken to the area. He was spoken to. He was nursed in open seclusion until 12.40 when, following reports of him punching the windows of the seclusion room, he was administered 100 milligrams of Chlorpromazine. He later slept but woke at 5.00, at which time he commenced shouting and thumping the walls. At 6.00 pm a further 100 milligrams of Chlorpromazine was administered. At that time it was noted that attempts to discuss the morning's unprovoked attack had been unsuccessful. So he was in open seclusion at the time of the attack on Miss Cook which happened at about 11.20 pm.
11. It seems that Miss Cook came on duty to the late shift at, and at around 11.20, as part of her duties, she went to the seclusion area to see if Mr Hussain and Mr Vernon required any refreshments, and/or to take away any used cups or plates. She knocked at the door. Mr Vernon came to the window and indicated to her that she could come in. She was in there a very short while, standing in the observation area when the patient asked if he could go to the toilet. The door to his room was ajar but he was not allowed out into the observation area without permission (that is no doubt why he asked) and he was not allowed out unless he had an escort by the two health care assistants, Mr Vernon and Mr Hussain. He was given permission to come out whilst Miss Cook was still standing in the observation area. Indeed Mr Vernon opened the door a little wider to allow him to come out and he then came out and turned round quickly and unexpectedly walked towards Miss Cook and punched her in the face hard, causing her to "see stars".
12. Miss Cook claims to have suffered substantial psychiatric injuries herself. This matter has been left over, both as to what extent her psychological problems are attributable to the blow, and also as to quantum, and we are not concerned with those matters. The issue before the judge and for us was whether the health authority are to blame.
13. There were various allegations of negligence, some of which the judge dismissed, and we need take no time on them. However he says this (page 29 of his judgment) after having considered the other matters:

"So the Claimant, Miss Cook, is therefore left with the allegation that given the unpredictable and violent nature of this man, as a result of his known illness and general behavioural pattern, Mr Vernon and/or Mr Hussain should simply have told her to leave before giving the patient permission to leave his room and allowing him to come into close, or closer proximity to her.

...

The question must be whether, in the light of all the circumstances, the employer has done enough to amount to reasonable steps to protect their staff, and the Claimant, Miss Cook, in particular. It is important to remember the extent of the risk. This was a wholly unpredictable, and violent man, who was in the seclusion suite for that very reason. He could (no-one disagreed) attack anyone at any time, and did so in the immediate and distant past. He suffered from a psychosis which made him very dangerous from time to time. He might go four, five or more days without an incident, but inevitably something would happen, and one would simply never know when it would occur. He was, therefore, a foreseeable risk to all persons in relatively close proximity to him at all times.

The Defendants owe a duty of care to the Claimant. They owe a duty of care to her, not to place her unnecessarily in a position where there is a risk of foreseeable injury to her. She was not required to mind, handle or observe the patient. She was allowed in as part of her duty, as part of her job, to check if refreshment was required. It was known this patient could attack anyone. Prior to his being given permission to leave his room, she was, like Mr Hussain and Mr Vernon, at some risk. But once the patient was given permission to leave and allowed out, then, closely supervised or not, she, like Mr Vernon and Mr Hussain, was at a significantly increased risk of attack.

It would have been a simple matter not to have let him out until she had been asked to leave, and in fact left the suite. There was no need for her to be present at all. It was, therefore, unnecessarily and significantly increasing her risk of being attacked by this highly unpredictable, volatile and violent man.

In those circumstances, I find there has been a breach of the duty of care...

Mr Vernon and Mr Hussain were at fault in not ensuring Miss Cook was out of the suite before allowing the patient to come out of the room.

In so far as this may have been the usual system, it was a negligent system, unnecessarily exposing someone in the position of Miss Cook to attack and injury from someone such as [the patient].

It would arguably (strongly arguably) have been a different situation if the patient had attacked one of his minders, Mr Hussain and Mr Vernon, as they had to be there as part of their task, part of their job at that stage, to observe him, and they had no option but to run the risk, minimising it, I suppose, where possible, and where they could, by appropriate techniques and management. It was a risk, ordinarily incidental to their particular tasks.

But Miss Cook did not need to be there, and it was not her particular task that night to be part of the observing, minding, caring team."

The recorder said later in his judgment at page (33):

"It matters not in my judgment, that she knew this patient's particular problems, and it matters not that she was a trained HCA like the other two, who from time to time would carry out the observation, or minding duties involved on open seclusion. She was not engaged on that particular task on this occasion, and in my judgment there was no requirement for her to be present in the suite when [the patient] was allowed out and being moved to the toilet.

It was therefore incumbent upon Mr Vernon and Mr Hussain, and/or her employers to minimise that risk by asking her to leave before allowing him out, or more particularly, by having in place such a system which meant that that would be the normal and usual procedure.

...

It is therefore no defence to say that Miss Cook's presence was simply conforming to normal practice, once it is clear that an unreasonable risk remained. The standard of care required in providing a safe system of work in these particular circumstances required all persons not immediately engaged in the minding or observing, or caring duties I have described, to be put in as safe a position as possible, ie not subjected to close proximity to this highly dangerous and unpredictably violent individual unless it was unavoidable.

It was not unavoidable. She was not engaged on care, minding, or observation tasks. The system should have been such that she was required to move outside the suite, through the locked door, with the door locked shut behind her, until [the patient] was moved safely out of his room under close supervision and brought back again."

That was the finding of the judge.

14. Mr Swain, who argued the case for the appellant, criticised the finding of the judge by saying, effectively, that he was making life impossible for people in the position of the defendant. He pointed out that Miss Cook was performing a duty which was to provide the three of them with refreshments, and he suggested that her position might have been different if she had been a domestic cleaner with no experience. I thought at that stage he was going to suggest that she was in some way to blame for her own accident. But although there was an allegation of contributory negligence in the original pleading that was not pursued in front of the judge or in front of us for reasons that I can understand; and so that does not arise.
15. He said, well, supposing she had been fulfilling the role of a third supervisor in circumstances where only two were necessary what would happen then if a patient lashed out? My answer to that would be that that is a different situation from the one that is presently before us. Miss Cook was here fulfilling a different function, a function which did not require her to be close to the patient. Problems arising from an allocation by the health authority of three minders when only two were necessary constitute a different set of problems, which no doubt will give rise to different argument depending on the facts of the particular case, but it is not a problem with which we need to grapple.
16. He submitted that the effect of the decision was to impose a duty on health care providers to make an assessment not only of the minimum requirement but also of the maximum requirement of carers. Well that is an argument which could be made in the context of the other type of litigation with which we are not presently concerned.
17. The present situation as the judge held, was one where her presence was arguably necessary before the patient left the seclusion room but was not necessary afterwards, and a health authority who has the difficult task of looking after these patients should not expose their employees, however well trained, to needless risks. There is no avoiding exposing employees to risk. Manifestly the closer your dealings are with the patient the greater the risks. If your function is merely to bring coffee on this particular occasion, there is absolutely no need for you to be close to the patient. So the judge held. It seems that she had effectively fulfilled or could have fulfilled her function (one does not know the detailed finding on that) but for my part I see nothing wrong in the approach which has been adopted by the recorder.
18. For those reasons I would dismiss this appeal.

LORD JUSTICE SCOTT BAKER: I agree.

MR JUSTICE PUMFREY: I also agree.

(Appeal dismissed; costs to be assessed by a Costs Judge if not agreed).