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Masthead Healthcare - Litigation

Supreme Court to consider if NHS in breach over man who left A&E before triage

The Supreme Court has agreed to hear an appeal over a Court of Appeal ruling that the NHS was not in breach of its duty when a man left an accident and emergency department and subsequently suffered brain damage.

A three-justice panel comprising Lady Hale, Lord Wilson and Lord Hughes granted permission for the appeal in August, the Court has revealed.

The Court of Appeal decision in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 was a split decision.

The background to the case was that Michael Darnley had attended Croydon Health Services NHS Trust’s Mayday Hospital with a head injury, and was told by a receptionist he would be seen within four-to-five hours.

He became tired of waiting after 19 minutes and left having not been told that in fact a triage nurse would examine him within 30 minutes of arrival.

As a result of leaving hospital untreated, Mr Darnley suffered serious injury. When he later returned by ambulance it was too late to prevent the development of permanent brain damage.

The original trial judge dismissed his claim, holding there was no duty to triage within 19 minutes and that the receptionist and trust owed no tortious duty concerning the information given about waiting times.

In the Court of Appeal Jackson LJ said he would dismiss Mr Darnley’s appeal as the judge had been entitled to find that the nurses' failure to triage the claimant within 19 minutes was not a breach of duty.

Nor could Mr Darnley succeed on the alternative basis of negligent misstatement by the receptionist as neither she nor the trust owed any duty to advise him about waiting times.

The damage Mr Darnley suffered was outside the scope of any duty owed, and there was no causal link between any breach of duty his injury.

“The claimant was told to wait, but he chose to leave the hospital,” the judgment noted.

Sales LJ agreed, but McCombe LJ said he would have allowed the appeal.

He said: “It would not have been beyond the hospital's reasonable resources to tell patients such as this claimant, by way of leaflet if nothing else, that head injuries would normally be assessed initially by a trained member of medical staff within about 30 minutes.”

The trial judge should have found that the hospital’s breach of its duty in this respect caused the injury after Mr Darnley left the hospital “and the claim should have succeeded”.

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