LATEST LAW IN 59 SECONDS (with a bit more 'cos I'm a lawyer)

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A&E RECEPTIONISTS NOT TO MISLEAD ON LENGTH OF WAIT

Michael Darnley was struck on the head by an unknown assailant. To A&E at Croydon's Mayday Hospital he went, with  a friend.

'I have been assaulted by being struck over the back of the head. I think I have a head injury. I am feeling unwell. My head is hurting.  I need urgent attention.'

'You will have to go and sit down and you will have to wait four or five hours before somebody looks at you. '

' I cannot wait that long. I feel I am about to collapse.'

' If you do collapse, you will be treated as an emergency.'

That was broadly the conversation between Mr Darnley and the receptionist. 19 minutes after arriving and without telling the hospital, he left. He later did collapse and was hospitalised and underwent surgery. Unhappily, he suffered permanent brain damage. Had he stayed, the collapse would have taken place in a hospital setting, he would have received earlier surgery and he would have made a complete recovery.

The information given to Mr Darnley by the receptionist had been incorrect and incomplete. It had influenced his decision to go. He sued the hospital. The trial judge threw out his claim. He appealed. The Court of Appeal (by a majority decision, with one judge disagreeing with his two colleagues) threw out the appeal. The Supreme Court has just unanimously allowed the appeal.* He will receive damages.

This was the Supreme Court's reasoning. To succeed, Mr Darnley had to prove that the hospital owed him a legal duty of care; that it had breached that duty; and that, as a result, he had been injured. Those who ran a casualty department DID owe a duty of care BEFORE someone was treated or admitted who was complaining of illness or injury to take reasonable care not to cause them injury. It mattered not to whether the duty existed that the actions of administrative staff rather than unqualified professionals were under scrutiny.

The duty of care HAD been breached by the receptionist. Had he remained, Mr Darnley should have been seen by a triage nurse within 3o minutes. Patients in Mr Darnley's position should be provided on arrival with accurate information that this is so. It was not unreasonable to require receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance.

And the fact that Mr Darnley made his exit before seeing someone, did not prevent him from succeeding in his claim. Had he been told he had a 30 minute wait for triage, he would have stayed. It was reasonably foreseeable that, told what he was, he would have made off.

* Darnley v Croydon Health Services NHS Trust [2018] UKSC 50

Assault By Sneezing

This is the silly season, alright. And this topic may sound silly. But I'm serious 'cos I am fed up to the teeth with being sneezed at wherever I go. We should all keep our germs to ourselves. And if we don't? Well, let's see.

An assault and battery are known to the civil law as a trespass to the person. If an unprotected sneeze is directed into your face then I regard that as such a trespass. It's probably also the tort of negligence. It could be either or both when, though not directly aimed at you, the sneezer is aware of your presence and the sneeze is emitted so close to you that they should have foreseen that you might catch something from them.

Proving that it was a result of the sneeze that you were struck down could be the obstacle to a successful civil claim for damages. You would have to prove that it was more probable than not that the sneeze was the cause of your illness. Physical closeness, the absence of prior symptoms, the velocity of the sneeze and the stage at which the symptoms began to manifest themselves will be among the major factors for consideration. The further away from you was the sneezer, the weaker your case.

A good sneeze can certainly travel at 60 to 80 miles per hour for up to 20 metres but research published in 2015 suggested that droplets from sneezes - and coughs - may travel 200 times further than had been thought. The incubation period for whatever is to follow the sneeze is around 24 to 48 hours.

Of course, you cannot make a civil claim unless you know the identity of the sneezer. Don't attempt a private arrest. For more on overcoming this obstacle and draft particulars of claim for a sneezing claim for damages, see my book Breaking Law. No warranty is given that you will succeed but let's hope someone does..... soon.

Neighbour Favours May Cost You

Doing a neighbour a favour could be costly where you are a professional, the favour requires you to exercise your expertise and the neighbour is placing their trust in you. 

Take this case in which the Court of Appeal made its rulings last Friday. * A married couple owned a house in North London and wanted their garden landscaped. They had received a quote for around £175K so we aren't talking about messing around with a pond and some daisies. A good friend and American qualified architect came to their aid. She would act as an architect and project manager on the job and organise other landscapers for the couple. No charge! But and it was a big but - she intended to provide design work such as lighting and planting after the heavier work had been done. In the past, the couple had helped her out. 

The project turned sour. The couple became unhappy with the quality and progress of the work and the architect's involvement was brought  to an end. The couple sued the architect for damages, claiming that she was responsible for some of the things that had gone wrong. The architect denied she was legally responsible for anything. A county court trial judge gave a judgment on preliminary legal issues in favour of the couple. The architect appealed to the Court of Appeal.

The Court of Appeal decided that the architect did owe the couple a duty of care even though she was not being paid for the services which were under attack by the couple. If someone possesses a special skill and undertakes to apply that skill for the assistance of another person who relies on it, a legal duty of care to that other person will be established. It matters not that there is no contract as such between them. It is a situation that is akin to contact. If that someone was being paid, it would be a contract. 

Where the assistance is given in a social or informal way the result may be different. Here, however, there was a significant project being approached in a professional way and the architect did hope to receive payment for services later on.

The case will now go back to the county court for it to decide on whether the architect breached her duty of care and,if so, what losses the couple suffered as a result and for which she would need to compensate them.

Until tonight, then, when I'll see you down at the boozer at 8pm and I'll have a look through those court papers for you. No charge but you might want to buy my book Breaking Law!

* Lejonvarn V Burgess and another [2017] EWCA Civ 254