Jersey Unreported Judgments

Medical - strike out and summary judgment applications.

[2017]JRC210

Royal Court

(Samedi)

12 December 2017

Before     :		Advocate Matthew John Thompson, Master of the Royal Court.
Between	Ismael De Freitas Ramos		Plaintiff
And	The Minister for Health and Social Services		Defendant

Advocate R. Tremoceiro for the Plaintiff.

Advocate S. A. Meiklejohn for the second Defendant.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1-2
2.	Background	3-8
3.	The contentions	19-46
4.	The strike out application	47-55
5.	The summary judgment application	56-71
6.	The third party proceedings	72-75
7.	Costs	74-75

judgment

the MASTER:

Introduction

1.        This judgment concerns the following applications brought by the defendant:-

(i)        to strike out paragraphs 25 and 26 of the plaintiff's order of justice;

(ii)       for summary judgment that the defendant did not owe a non-delegable duty of care to the plaintiff; and

(iii)      in the alternative to join the Royal Free London NHS Foundation Trust (the "Royal Free") as a third party.

2.        The focus of the arguments of both parties concerned the first two applications.  Accordingly, there was no issue between the parties, if I was not prepared to grant either of the defendant's applications, then the Royal Free should be convened as a third party.

Background

3.        The plaintiff's proceedings were commenced by order of justice dated 8^th May, 2017. 

4.        The plaintiff was born with a congenital facial vascular malformation known as a haemangioma affecting his left upper lip and cheek.  The plaintiff first came to Jersey for seasonal work in the hospitality industry in 1998 and has been permanently resident in Jersey since 2008.

5.        In his late 30's the plaintiff's haemangioma is said to have spread and become more enlarged.  In 2009 the plaintiff's then general practitioner referred the plaintiff to a consultant ear, nose and throat Specialist, Mr Martyn Siodlak ("Mr Siodlak") at the hospital.

6.        Mr Siodlak referred the plaintiff to Mr Addie Grobbelaar ("Mr Grobbelaar").  Mr Grobbelaar was at all relevant times a consultant plastic surgeon.  Between April 2009 and May 2015, Mr Grobbelaar was engaged by the defendant through the Social Services Department to act as a visiting consultant.  At the same time he was also a consultant at the Royal Free.

7.        Following an MRI scan, on 19^th November, 2009, the plaintiff was reviewed by Mr Grobbelaar's Registrar and was recommended for radiological embolisation by way of sclerotherapy treatment.  The plaintiff's order of justice describes embolisation as a way of blocking abnormal blood vessels.  Sclerotherapy is a procedure used to eliminate veins involving an injection of a solution into the vein.

8.        The plaintiff was referred by the hospital for embolisation treatment to the Royal Free.  The plaintiff was placed in the care of Professor George Hamilton, a Professor of Vascular Surgery at the Royal Free.  The treatment was carried out by a Dr Jocelyn Brooks ("Dr Brooks"), Consultant Interventional Radiologist.

9.        At paragraph 11 of the order of justice the plaintiff alleges:-

"The Plaintiff had no control over the choice of hospital to which he was referred or the specialists in whose care he was placed by the defendant, whose servants or agents exercised that control."

10.      Although the plaintiff had been referred to the Royal Free, at paragraph 12 of the order of justice the plaintiff alleges:-

"The defendant continued to monitor the progress of the Plaintiff's Embolisation Treatment at the Royal Free during appointments at the hospital with Mr Grobbelaar, the Embolisation Treatment having been intended as a preliminary procedure to be carried out prior to de-bulking (the reduction of as much of the bulk or volume of the affected area as possible, usually achieved by surgical removal) which would have been carried out at the hospital, not the Royal Free."

11.      The detail of the treatment carried out is set out at paragraphs 13 to 21 of the order of justice as follows:-

"13.     On 10 May 2010 the Plaintiff was first examined by Professor Hamilton who diagnosed a left-sided venous malformation and who noted that the principal problem was of cosmetic appearance. Injection sclerotherapy under general anaesthetic was recommended and the Plaintiff was informed that the treatment was not curative but designed only to shrink the lesion. The Plaintiff was also warned by Professor Hamilton of the "low but real risk of cutaneous and mucosal ulceration", that there would be swelling after treatments and that several courses of treatment would be required.

14.      The Plaintiff was also informed that it was likely that plastic surgery would be required after the sclerotherapy. It was noted that the Plaintiff was then forty-five years of age. Professor Hamilton commented in a letter to Mr Grobbelaar that "Other than the cosmetic aspect it gives very little in the way of trouble occasional very minor bleeding from the mouth".  "...the problem is largely one of cosmetics and the extent of the malformation"

15. The Plaintiff was informed of the possible formation of ulcers and that there was no guarantee that the treatment would be 100% effective. There was no in-depth discussion of the risks either with Professor Hamilton at that first consultation on 10 May 2010 or later with the staff on each occasion the Plaintiff received treatment.

16.      A friend of the Plaintiff, Mr Trevor Briggs, attended the first appointment with Professor Hamilton. He assisted the Plaintiff in getting to the Royal Free and also to a very limited extent with communication with Professor Hamilton.  Mr Briggs was mainly present to offer moral support.

17.      At the pre-operative assessment it was noted that the Plaintiffs first language was Portuguese but no interpreter was required and that the patient understood the treatment/procedure to be undertaken.

18.      The in-patient and admission forms from the Royal Free record "speaks little English" and the admission form of 19 March 2013 records that "an interpreter is required".

19.      Between 13 July 2010 and 30 May 2014 the Plaintiff underwent a total of 6 courses of Embolisation Treatment. There was no interpreter involved in the admission and pre­ surgery process on any of those occasions.

20.      During this time the Plaintiff's treatment was reviewed both by Professor Hamilton and Doctor Brookes at the Royal Free and by Mr Grobbelaar at the Hospital. The Hospital on behalf of the Defendant retained control of the whole process. It paid for the treatments at the Royal Free and continued to retain the services of Mr Grobbelaar (a locum) who reviewed the Plaintiffs progress throughout.

21.      The Embolisation Treatment was part of the wider treatment planned for the Plaintiff by the Hospital, it being a preliminary step to de-bulking, a surgical process which it was always envisaged would be undertaken in Jersey at the Hospital."

12.      The plaintiff's complaint concerns one of the planned courses of embolisation treatment which he received on 13^th May, 2014.

13.      The first complaint of the plaintiff was that he was not adequately informed of the risks of the treatment by the Royal Free or the risk of ulcerations/skin necrosis which could be of such a magnitude that reconstructive or plastic surgery would be required to correct the risk materialising.  The plaintiff contends he would not have undergone or continued the embolisation treatment had he understood the extent of the risks of the ulcerations/skin necrosis.

14.      This complaint against the defendant is set out at paragraphs 25 and 26 as follows:-

"25.     The Defendant was negligent in that he failed, as part of his referral of the Plaintiff for Embolisation Treatment to the Royal Free, to ensure that the Plaintiff had been properly advised of the risks of that Treatment.

26.      As a result of the Defendant's failure to ensure that the Plaintiff was warned of the risks of the Embolisation Treatment the Plaintiff was not in a position to provide informed consent to the course of treatment on 30 May 2014 (or any previous courses of treatment)."

15.      It is these two paragraphs that the defendant seeks to strike out.

16.      Following the treatment on 30^th May, 2014, the Royal Free removed damaged tissue to the plaintiff's face.  The plaintiff then underwent six operations at the Jersey General Hospital by way of reconstructive surgery.  The plaintiff argues that the defendant is responsible for the actions of the Royal Free as pleaded at paragraphs 34 to 36 of the order of justice as follows:-

"34.     The Plaintiff asserts that, in light of the fact that he was being treated and advised in Jersey and was in that context referred by the consultants at the Hospital, who were in charge of his treatment, to the Royal Free, the Defendant owed him a non-delegable duty by application of the principles articulated by the Supreme Court in Woodland v Swimming Teachers Association [2013] 3 WLR 1227, and is therefore directly liable for the Plaintiffs loss and injury.

35.      Under the principles enunciated in the Woodland case, a non-delegable duty exists, and therefore the party owing that duty is directly liable for the actions of those to whom the performance of the duty is delegated in the following circumstances:

(1)       The claimant is a patient.

(2)       There is an antecedent relationship between the claimant and the defendant, independent of the negligence act or omission itself,  (i)  which places  the claimant in the actual custody, charge or care of the defendant, and

(ii) from  which  it is possible  to impute to the defendant  the assumption of a positive  duty to protect  the claimant from  harm, and not just  a duty to refrain from  conduct which will foreseeably  damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant.

(3)       The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

 (4)      The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.

(5)       The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him. "

36.      All the above conditions are present in the case of the Plaintiff."

17.      It is in respect of these paragraphs that the defendant's application for summary judgment is brought.

18.      What led to the summary judgment application was that the defendant sought to join the Royal Free as a third party, to claim an indemnity or contribution pursuant to Section 3(1)(c) the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960.  It was as a result of this application being presented to me that I indicated that I wanted to be addressed on whether or not the defendant as a matter of law could be held responsible for any alleged negligence of the Royal Free, assuming that the plaintiff's allegations against the Royal Free could be established.  The reason for this approach was that, if the defendant could never be held liable in law for the actions of the Royal Free, then there was no basis to convene the Royal Free as a third party.

The contentions

19.      Advocate Meiklejohn for the defendant contended in relation to the application to strike out paragraphs 25 and 26 of the order of justice, that this application was brought on the basis that paragraphs 25 and 26 disclosed no reasonable cause of action.  This application was separate from the defendant's challenge that the defendant was not subject to a non-delegable duty of care. 

20.      The allegation in paragraph 25 is that the defendant was under a duty to advise the plaintiff of the risks of the treatment to be given by the Royal Free.  No authority was cited in support of this proposition. It was therefore argued that the limit of any duty was only to take steps to ensure that the provider of treatment was reasonably competent to provide that treatment and to inform the entity to whom a patient was referred what the defendant knew about the plaintiff.

21.      It was submitted by Advocate Meiklejohn that the duty to warn of the risks of treatment was a duty owed by the Royal Free.  This duty was considered in Montgomery v Lanarkshire Health Board [2015] UKSC 11 at paragraph 87 of the joint opinion of Lords Kerr and Reed as follows:-

"87 The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce , subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras 77-73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it."

22.      It was further submitted that the context of the Montgomery decision was that the Supreme Court drew a distinction between the duty to advise of risks and whether or not the relevant doctor or hospital took reasonable care in carrying out the relevant the treatment.  The question of whether or not reasonable care was taken was governed by the well-known case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

23.      Advocate Meiklejohn contended that, in relation to the defendant, employees of the Jersey General Hospital were not under any duty to advise on the risks of specialist treatment.

24.      Advocate Meiklejohn accepted however, that if there was a non-delegable duty of care owed by the defendant, in which case, if a breach of such a duty was established, the defendant would be held liable for any failure by the Royal Free to advise of the risks of the course of treatment carried out on the plaintiff.  However, in the absence of a non-delegable duty, there was no duty of care otherwise owed by the defendant to advise on the risks of treatment to be carried out by the Royal Free.

25.      In relation to the argument that the defendant owed the plaintiff a non-delegable duty of care, such a duty would mean that the defendant was liable for any failure by anyone to whom the defendant referred a patient.  This was a matter of general importance because such referrals occurred on a regular basis.  Whether or not a patient had been referred was driven by a number of policy considerations, some relating to whether the relevant specialisation was available in Jersey, or whether the relevant doctor in Jersey had the required level of expertise for the particular issue as well as budgetary constraints.

26.      The issue for decision turned on whether or not the approach as set out by Lord Sumption in Woodland v Essex County Council [2013] UKSC 66 applied to the plaintiff's case i.e. to treatment carried out by a hospital or doctor outside Jersey following a referral by the hospital authorities in Jersey. 

27.      The key paragraph of Woodland is paragraph 23 which states as follows;-

"23 In my view, the time has come to recognise that Lord Greene in Gold and Denning LJ in Cassidy were correct in identifying the underlying principle, and while I would not necessarily subscribe to every dictum in the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have given rise to non-delegable duties of care. If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features:

(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him."

28.      The defendant's position was that once a patient was referred to another hospital that patient was no longer under the care of the hospital and therefore the defendant's obligations ceased.  At that point in time the patient referred was no longer in the custody, charge or care of the defendant.

29.      A referral to a third party was very different from the defendant being liable for acts of individuals employed by the hospital whether they were employees, self-employed or were retained by the hospital to come to Jersey to perform a specific obligation.  In any of those scenarios the defendant was providing a service and was therefore liable if individuals retained to perform the service were negligent.  In such a scenario a patient was still in the custody, charge or care of individuals retained on behalf of the defendant.  That position however changed once a referral to another hospital or consultant took place where the defendant was not involved in the provision of the treatment.  Rather responsibility for the treatment was a matter for the third party.

30.      The approach taken by the defendant was not just based on outsourcing but also was a referral to a specialist, which specialist care the defendant through the hospital could not provide.  At the point of referral a patient, such as the plaintiff in this case, was no longer in the care of the defendant.  The defendant had no control on how the plaintiff might be treated once the referral took place.

31.      In addition, it was submitted, a patient had control as it was a matter for the patient whether or not to agree to the referral; that was the plaintiff's choice.  This was not a case where the plaintiff had to undergo treatment.  He was free to elect not to do so.

32.      The extent of the duty on the defendant was only to arrange a referral.  To argue that the defendant was responsible for any acts of negligence of the Royal Free while the plaintiff was under the care and control of the Royal Free went too far.  Advocate Meiklejohn cited Armes (Appellant) v Nottinghamshire County Council (Respondent) [2017] UKSC 60 in support of his argument.  In Armes, although the defendant council was found liable on the basis of vicarious liability, the Council was not liable for acts of abuse of foster parents on the basis of a non-delegable duty of care being owed.

33.      To hold the defendant liable for any negligent acts of the Royal Free was not fair, just and reasonable where the defendant was not providing the service carried out by the Royal Free.  This was purely a legal question which did not require a trial before the Jurats.

34.      Advocate Tremoceiro for the plaintiff in relation to the strike out application firstly reminded me it was only in plain and obvious cases which were unarguable that a case should be struck out.

35.      In relation to paragraph 25 his argument was that, for each referral of a patient, the defendant was under a duty to ensure that a patient could give informed consent.  In this case, this duty meant firstly ensuring that the relevant staff at the Royal Free were aware of the plaintiff's need for an interpreter and also taking steps to ensure that the plaintiff was provided with the services of an interpreter in relation to the risks of his treatment.  The plaintiff however went further and argued that the defendant also was under an obligation to check that the relevant staff were aware of an obligation on part of the Royal Free to warn the patient of the risks and to check that members of staff had in fact done so.  Finally, the defendant was also under a duty to warn the plaintiff itself of the relevant risks of the treatment to be carried out by the Royal Free.  The plaintiff was not arguing, however, that the duty set out in paragraph 25 was one of strict liability unless a non delegable duty was arguably owed.

36.      In oral argument however Advocate Tremoceiro accepted that what was at the heart of paragraphs 25 and 26 was that the defendant was under a duty to warn the Royal Free about the limited ability of the plaintiff to understand English and therefore to understand the risks of any proposed treatment. 

37.      In relation to the summary judgment application, the plaintiff's claim had some chance of success, was not fanciful and did not lack an absence of reality.  The required threshold to grant summary judgment was not therefore made out.

38.      In relation to the criteria in the Woodland decision, clearly the plaintiff was a patient.  It was also in in an antecedent relationship with the defendant.  This was firstly because the initial referral had been to the hospital in Jersey; it was the defendant who had control over the plaintiff in providing treatment.  More generally the plaintiff was entitled to treatment because he met the defendant's eligibility criteria.  The plaintiff's position was summarised at paragraphs 8 to 10 of his affidavit sworn on 26^th September, 2017, as follows:-

"8.       I had been referred by Dr Innes Cameron, formerly of Cleveland Clinic ("my GP") to the Hospital and by the Hospital to the Royal Free. My GP and the Hospital were kept informed as to my treatment at the Royal Free and, when the treatment went wrong on 30 May 2014 I was seen initially by my GP and then at the Hospital before being sent back to the Royal Free for some initial corrective operations, over a period of some three weeks.  The remainder of the corrective surgery was carried out at the Hospital.

9.        I was never asked where I would like to be treated.  I was simply told that I would have to go to England for treatment.  I was not asked if I had any preference as to the hospital or even where in England I should have the treatment. I left it all to the doctors and it never occurred to me that I had any choice as to those matters.

10.      I lived throughout the period of treatment in Jersey and was referred by the consultants at the Hospital to the Royal Free.  That is as much as I know.  I was reviewed in Jersey by the consultants at the Hospital and arrangements were made for me to travel to England by the Hospital.  My understanding is that the Defendant paid for the travel costs and part of the accommodation costs as well as the costs of the parts of the treatment which were carried out at the Royal Free.  Throughout the whole process I thought that the Hospital was in overall charge of medical treatment. The treatment was a recommendation on the part of the consultants employed by the Defendant.  Correspondence regarding the referral process was shown to me and exhibited hereto marked "IFR003"."

39.      In April 2013, by an exchange of letters exhibited to the plaintiff's affidavit, Mr Siodlak and Mr Salman Zaman ("Mr Zaman") a Consultant Radiologist explored whether the plaintiff could receive future treatment in Jersey.  This led to Mr Grobbelaar writing to Mr Siodlak on 7^th May, 2013, stating "As far as know this kind of specialised service is not available in Jersey, but if it is, then of course it could be done here.  We will continue however to keep his appointments at the Royal Free Hospital, until have been informed that this service is available in Jersey."  

40.      Advocate Tremoceiro submitted that the relevance of this correspondence was that it clearly showed control by the defendant.  It was a matter for the defendant whether or not the treatment of the plaintiff would take place in Jersey or the United Kingdom.  The fact that the plaintiff could refuse treatment did not mean that the plaintiff was not under the care of the defendant.  There was no question the plaintiff had any control as to whether or not the defendant would offer treatment in Jersey or elsewhere.

41.      In this case, treatment by the Royal Free was to reduce the size of the growth for the remainder of the growth then to be removed in Jersey.  The treatment by the Royal Free was therefore an integral part of the treatment the defendant was providing to the plaintiff in Jersey.

42.      The defendant's commitment was to provide a hospital service to deal with medical problems.  A referral to the Royal Free was simply part of that service.

43.      The Armes decision did not assist because the duty on the relevant council, in that case, was not a non-delegable duty to provide foster care but simply to select individuals to act as foster parents and to take reasonable care in doing so.

44.      While there might be limits on any non-delegable duty of care, those limits were a matter for trial because they had to be worked out on a case by case basis, as observed by Lady Hale at paragraph 39 of Woodland as follows:-

"The boundaries of what the hospital or school has undertaken to provide may not always be as clear cut as in this case and in Gold and Cassidy , but will have to be worked out on a case by case basis as they arise."

45.      In this case the function of providing embolisation treatment was a function the defendant was providing, which is why the defendant was liable for any act of negligence on the part of the Royal Free.

46.      The criteria in Woodland were just that and care had to be taken not to turn them into strict statutory rules.  Those criteria might need refining by reference to the health system operated in Jersey but again that was a matter for trial. 

Decision

The strike out application

47.       In relation to the strike out application, both parties were agreed on the legal principles applicable to a strike out application.  These were most recently considered by me in CMC v Forster & Ors [2017] JRC 141 at paragraphs 9 to 12 which are the legal principles I have adopted in relation to the present application.

48.      The plaintiff's allegations as pleaded at paragraphs 25 and 26 of the order of justice are not clear.  In particular, it is not clear if what is alleged is no more than a duty on the defendant, through the hospital, to warn the Royal Free of the plaintiff's need for an interpreter and ensuring that an interpreter was provided or whether the plaintiff is alleging that the defendant, again through the hospital, was under a duty to itself advise the plaintiff of the risks of the treatment to be carried out by the Royal Free and to review whether the Royal Free had advised the plaintiff of the risks.

49.      In my judgment there is a distinction between a duty to take reasonable care to effect a referral part of which includes a duty to warn the person or entity to whom the referral is made of specific issues within the knowledge of the referring entity, including a patient's ability to understand English and a duty on the part of the referring entity to itself advise of the risks of treatment for which it is referring a patient.

50.      Advocate Tremoceiro ultimately accepted in oral argument that his complaint was that the defendant did not warn the Royal Free of the plaintiff's need for an interpreter and the plaintiff's inability to understand the risks of treatment if they were not explained to him in Portuguese.

51.      Otherwise, absent the defendant being liable on a strict liability non-delegable duty basis for acts of the Royal Free (which I address below), the plaintiff in seeking to argue that the defendant owes a duty of care to review whether the Royal Free had discharged its duty of care would be seeking to impose on the defendant liability for acts of an independent third party which third party was responsible for providing treatment to the plaintiff.  The same analysis applies to the suggestion that the defendant itself was under a duty of care to warn of the risks of treatment to be provided by that third party.  As is noted at paragraph 5 of Woodland:-

"The law of negligence is generally fault-based.  Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all.  The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do."

52.      Absent a non-delegable duty, the claim brought by the plaintiff at paragraphs 25 and 26 insofar as it seeks to go beyond taking care in the selection of the Royal Free (if this is alleged) and taking reasonable care to ensure that the Royal Free was warned of the plaintiff's need for an interpreter, it is a step too far to seek to impose personal liability on the defendant for actions it is said that the Royal Free failed to carry out.  In particular, when treating the plaintiff, the Royal Free was under the duty referred at paragraph 87 of the Montgomery decision referred to above to ensure that the plaintiff was aware of any material risks involved.  Yet the plaintiff's argument would make the defendant responsible for a failure by the Royal Free to warn of the risks of the treatment the Royal Free was going to carry out.  It is also a step too far to require the defendant to advise on the risks of treatment to be provided by a specialist third party.

53.      The difficulties of the plaintiff's approach can be tested by the practicalities of what would be required if the defendant was under such duties.  This can be seen from the plaintiff's skeleton argument at paragraph 16 where it was suggested that the defendant should have taken steps to ensure the plaintiff was provided with an interpreter and to check that members of staff had advised the plaintiff of the risks of particular procedures.  To discharge that duty the defendant would have to find out when the risks were explained and who explained the risks.  In addition does this obligation also mean that the plaintiff could not have had treatment until the defendant confirmed that the plaintiff had consented?  That would be unworkable. In addition a duty on the defendant to review that the risks had been explained by the third party specialist or to advise on the risks of specialist treatment by a third party would require the defendant to have the resources to assess whether or not the risks had been properly explained when at least in this case the reason for the referral was that there was specialisation at the Royal Free which the defendant did not possess.

54.      Accordingly, therefore, I have concluded that the allegations in paragraphs 25 and 26 are struck out to the extent they go beyond alleging that the defendant should have warned the Royal Free of the plaintiff's need for an interpreter and his limited knowledge of English. 

55.      The plaintiff therefore will be allowed 14 days from the handing down of this decision to amend paragraphs 25 and 26 of his order of justice to reflect this decision. The defendant will then have a further 14 days to file an amended answer in reply on the usual terms as to costs.

The summary judgment application

56.      Again generally there was agreement between the parties on the applicable principles which I had summarised most recently in Vibert v the Sun Bowls Club & Ors [2017] JRC 181 at paragraphs 22 to 25 which I have applied.

57.      In this case the pertinent paragraph is sub-paragraph vii of the Trilogy decision cited at paragraph 24 of Vibert as follows:-

"vii)    On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it.  The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case maybe.  Similarly, if the applicant's case is bad in law, the sooner that is determined, the better.  If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success.  However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."

58.      I refer to this extract because the key issue raised by the defendant is fundamentally a question of law namely whether or not that the defendant owes a non-delegable duty of care to the plaintiff for the treatment the plaintiff received from the Royal Free.  The issue for me to decide is whether this question of law can be disposed of on a summary judgment application or whether it is a matter that requires a trial.  The view I have reached is that a trial is required for the following reasons.

59.      Firstly, while I accept that the plaintiff was a patient of the defendant, it is not possible for me to determine on a summary judgment application the obligations of the defendant to provide care to the plaintiff.  This question matters because it goes to the extent of the obligations on the defendant to provide health care to Island residents.  I consider it appropriate for the extent of that obligation and what decisions have previously been made by the defendant or his predecessors (whether as Minister or by Committee) and the extent of those obligations.  In particular, is there an obligation on the defendant to provide any health care or is the responsibility simply to provide such health care that can reasonably be afforded.  This question requires evidence which may be complex and which it is not appropriate to determine at a summary judgment hearing.

60.      This issue is relevant because it is a necessary element of determining how far a patient such as the plaintiff is in the custody, charge or care of the defendant.  As is noted at paragraph 22 of Woodland, "the main problem about this area of the law is to prevent the exception from eating up the rule."

61.      Furthermore care needs to be taken that the criteria set out at paragraph 23 of Woodland are not treated as equivalent to a statutory provision. Lady Hale at paragraph 38 of Woodland warned that Lord Sumption's criteria should not be treated "if they were statutes and can never be set in stone." The Supreme Court in Armes repeated this warning at paragraph 36, also noting that the criteria might need to be "re-considered, and possibly refined, in particular contexts"

62.      In deciding that the plaintiff's claim requires a trial, I have not disregarded the observations of Lady Hale in Woodland at paragraph 34 where she states "The reason why the hospital or school is liable is that the hospital has undertaken to care for the patient". The defendant's argument is that he has not undertaken to care for the plaintiff generally, but only insofar as the defendant is able to provide health care services.  The conclusion I have reached is that it is a matter for trial to determine the limits of that responsibility and whether any duty of care owed by the defendant can be limited in the way contended for and therefore whether the obligation on the defendant is only to select apparently competent individuals to provide care.

63.      To impose a non-delegable duty of care also requires, applying the second of the criteria at paragraph 23 of Woodland, a conclusion to be drawn "...to impute to the defendant the assumption of a positive duty to protect the claimant from harm..." even if there is an antecedent relationship.  While there are suggestions in Woodland that an individual undergoing hospital treatment may fall within the scope of a non-delegable duty of care, it is not clear whether the assumption of a positive duty to protect a patient from harm arises in every case where there is an existing patient-doctor relationship or whether such a duty might only be inferred in certain types of cases only or on a case by case basis.  In Jersey, there is likely, in many cases, to be some form of an antecedent relationship because a patient has been referred to the care of the hospital before any referral elsewhere takes place.  Whether such a relationship leads to an ongoing duty to protect a patient from harm is however an issue to explore at trial.  Otherwise I would either be conducting a mini-trial or deciding a complex question of law without the underlying evidence to do so.

64.      In expressing the above view I have taken into account the warning of Lord Sumption at paragraph 2 of the Woodland judgment where he stated as follows:-

"2 The issue on the present appeal arises out of an allegation in the Appellants' pleadings that the Council owed her a "non-delegable duty of care", with the result that it is liable at law for any negligence on the part of Ms Burlinson or Ms Maxwell. Langstaff J struck it out on the ground that on the pleaded facts the education authority could not be said to have owed a "non-delegable duty of care". The Court of Appeal affirmed his decision by a majority (Tomlinson and Kitchin LJJ, Laws LJ dissenting). The appeal provides a useful occasion for reviewing the law on what have been called "non-delegable duties of care". But it must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation. The pleadings are unsatisfactory. There are no findings of fact and almost everything is disputed. A decision of the point presently before us will not be decisive of the litigation either way, because there are other bases of claim independent of it. The point has taken more than two years to reach this stage, during which, if the allegation had been allowed to go to trial, it would almost certainly have been decided by now. As it is, regardless of the outcome of this appeal it will now have to go back to the High Court to find the relevant facts."

65.      My conclusion does not mean that the defendant may not prevail at trial.  In particular there may be differences peculiar to Jersey's positon as a jurisdiction with autonomy in its domestic affairs including the provision of health care but whose resources are relatively limited compared to the United Kingdom.  Whether a non-delegable duty should be imposed on the defendant for acts of hospitals in the United Kingdom to whom the hospital on behalf of the defendant choses to refer patients is not something that can be explored without evidence on restraints operating on the defendant in relation to the provision of health care services in the Island.

66.      The fourth factor referred to in paragraph 23 of Woodland is also a matter that can only be resolved at trial namely whether there has been a delegation of any integral part of any positive duties assumed by the defendant in favour of the plaintiff.  This aspect goes further than the scope of any general obligations the defendant might owe to provide health care and the extent of those obligations to patients generally.  Even if there is no general assumption of responsibility for referrals to other hospitals (which may be in the United Kingdom but might be elsewhere), this factor might apply in this case, depending on an analysis of what responsibilities the defendant assumed for the treatment of the plaintiff.  Given that the plaintiff' was first assessed in Jersey at the hospital, was then transferred to the Royal Free, his treatment at the Royal Free was then reviewed in Jersey (by an individual who was both a consultant to the defendant and the Royal Free) and where subsequent treatment was contemplated in Jersey, it is possible that, at trial, a non-delegable duty might be found to exist in the circumstances of the present case, or where the treatment of a particular condition is split between Jersey and another hospital.

67.      In reaching my decision, I have also taken into account the observations of Lord Sumption at paragraph 25 of Woodland where he states as follows:-

"25 The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services.  A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so."

68.      While the reference to the imposition of a duty being fair, just and reasonable is not the creation of an additional criteria, meaning there should not be a separate enquiry as to what is fair, just and reasonable (see paragraph 36 of Armes), it is only at a trial can the issue of whether a non delegable duty can be resolved.  This is not a straightforward question for the reasons I have given.

69.      I should also add that I do not regard the third criteria in paragraph 23 of Woodland as being of assistance to the defendant.  The issue of whether the plaintiff is referred to another hospital or consultant is within the sole control of the defendant.  The plaintiff's choice was either to accept or refuse the treatment on offer.  Some patients may have the means to seek treatment privately, but that does not appear to arise in this case.  Even then election of private treatment or refusal of treatment offered via a third party does not give patient control to exclude a duty of care.  Rather such an election or refusal means that any duty of care that might be owed is discharged.

70.      I also did not regard the Armes decision as conclusive as argued for by the defendant.  In the Armes decision a trial had taken place.  The Supreme Court was therefore able to analyse all the evidence that had been provided at trial, the extent of the defendant council's responsibilities and whether or not a non-delegable duty arose.  I do not regard it as appropriate to reach the same conclusion in this case without a trial.

71.      For all these reasons I refuse to grant summary judgment in respect of paragraphs 34 to 36 of the order of justice.  In reaching this view, nothing in this decision should be taken to mean that either the defendant or the Royal Free have acted in breach of any duty that might be found to be owed to the plaintiff.  Even if a duty of care is found to be owed, the plaintiff will still have to establish a breach of any such duty at trial.

The third party proceedings

72.      In light of my conclusion that summary judgment should not be granted in respect of paragraphs 34 to 36 of the order of justice, I am also satisfied it is appropriate to convene the Royal Free as a third party.  This is on the basis that Royal Free is a necessary party falling within Rule 7(c) of the Service of Process Rules 1994, as amended.  In Crill Canavan v MacKinnon [2013] JRC 192A, I concluded that "proper" meant "appropriate" (see paragraph 27).  In this case it is appropriate to have the issue of whether the Royal Free should indemnify the defendant, if a non-delegable duty exists, for any acts of negligence established by the same court that adjudicates on the plaintiff's claim against the defendant. 

73.      Applying the approach in Maywal Limited & Ors v Nautech Services Limited [2014] 2 JLR 527, I am therefore satisfied that there is a good arguable case that the requirements of Rule 7(c) are met, that there is serious issue to be tried both in respect of the issue whether there is an non-delegable duty and whether or not the third party acted negligently and that Jersey is an appropriate forum to resolve these disputes.

Costs

74.      In relation to the costs of the strike out application I ordered costs in the cause, because while paragraphs 25 and 26 were struck out, the plaintiff was given leave to amend his order of justice to maintain the allegation that the defendant should have warned the Royal Free of the plaintiff's need for an interpreter and his limited knowledge of English.  Part of the allegations therefore were not struck out and so neither party was a clear winner.

75.      In relation to the costs of the summary judgment application, the position was more complex.  While the application was unsuccessful, the summary judgment hearing came about because the defendant wished to convene the Royal Free leading to the Court raising whether or not the defendant as a matter of law could be held responsible for any alleged negligence of the Royal Free.  In relation to this argument, I ordered the plaintiff's costs in the cause.  As far as the plaintiff was concerned I felt it just that the plaintiff should recover his costs if he was successful at trial in arguing a non-delegable duty of care and a breach of duty.  As far as the defendant was concerned, while the issue had been raised by me, the defendant argued for summary judgment to be granted, which argument did not prevail.  The defendant did not have to take the stance it took.  It could have adopted a more neutral role or could have accepted that there was an issue for trial as I ultimately found.  In the circumstances I concluded it was not just for the defendant to recover its costs even if it prevails at trial because the arguments advanced at this stage seeking summary judgment were unsuccessful.

Authorities

Law Reform (Miscellaneous Provisions) (Jersey) Law 1960.

Montgomery v Lanarkshire Health Board [2015] UKSC 11.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

Woodland v Essex County Council [2013] UKSC 66.

Armes (Appellant) v Nottinghamshire County Council (Respondent) [2017] UKSC 60.

CMC v Forster & Ors [2017] JRC 141.

Vibert v the Sun Bowls Club & Ors [2017] JRC 181.

Service of Process Rules 1994.

Crill Canavan v MacKinnon [2013] JRC 192A.

Maywal Limited & Ors v Nautech Services Limited [2014] 2 JLR 527.