Court finds for Healthcare Defendants : No Duty of Care when advising non-patients to protect them from economic loss

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Court finds for Healthcare Defendants : No Duty of Care when advising non-patients to protect them from economic loss

Published 18 December 2018

DAC Beachcroft were recently involved in a successful strike out application in which the Court confirmed that there was no duty of care on healthcare professionals advising non-patients to protect them from economic loss.  Read on to find out how the Court found in the Defendants' favour in Bot and Whitehead v Barnick (D1) Bourke (D2) and HCA International Limited (D3).


Following the birth of her child, Ms Bot was readmitted to the Portland Hospital (t/a HCA International Limited, D3 and represented by DAC Beachcroft LLP) with a suspected infection of her caesarean wound.  Her mental health deteriorated.  She was reviewed by her obstetrician, Mr Barnick and a psychiatrist, Dr Bourke (D1 and D2).  During her stay in hospital, Mrs Bot made assertions, including that she had been visited by a Cameroonian gang and that she had thoughts of hurting family members.  D2 concluded that she was suffering an acute stress reaction.  Mr Whitehead (the partner of Ms Bot) claims that he was then advised that Ms Bot had recovered from a psychiatric episode, that her assertions were truthful and that there were child protection issues for the police to consider.  Ms Bot was discharged from hospital.  Mr Whitehead took her to Islington Police Station, where she was sectioned under the Mental Health Act and detained in a psychiatric hospital for several weeks. 

Ms Bot brought a claim against the Defendants in negligence (a claim that she later discontinued against HCA International Limited, D3).  At the same time, Mr Whitehead brought a claim for economic loss in contract and in tort, based on the principles in Hedley Byrne -v- Heller.  He claimed that as a result of the information that he had been allowed to believe was true (whereas he claimed it was not), he feared for the safety of his family, gave up his well-paid job, sold up the family home and moved out of London.  His Schedule of Loss exceeded £2 million.

The Defendants issued an Application that Mr Whitehead's claim be struck out on the grounds that it showed no reasonable cause of action or alternatively that the claim had no real prospect of success.

The Judgment of Mrs Justice Whipple DBE

Based amongst other arguments on the fact that Ms Bot was receiving medical care under Mr Whitehead's medical insurance, he argued that there was a contract between him and the three Defendants and that this contract had been breached by the giving of incorrect advice upon which he had acted.  The Court gave these arguments short shrift.  Such a contract would raise obvious risks of conflict in relation to duties of care and confidence already owed by each of the Defendants to the patient, Ms Bot. Such a contract would also impose additional liability on each of the Defendants beyond what was sensibly envisaged. The Court concluded that there was no evidence of any contract implied, explicit or collateral.

Mr Whitehead also argued that a duty of care was owed in tort.  Again, the Court rejected this argument. The Court referred to West Bromwich Albion FC –v- El Safty, where it was found that a clinician treating one of its footballers did not owe West Bromwich Albion Football Club a duty of care.  The nature of the contract with the clinician was medical and not financial.  Accordingly, there was no assumption of responsibility by any of the Defendants to protect Mr Whitehead against economic loss.  There was insufficient proximity between the Defendants and Mr Whitehead and it would not be fair, just and reasonable to impose a duty on the Defendants.  Mr Whitehead's case failed to establish the existence and scope of a duty of care as set out in Caparo Industries -v- Dickman. 

The Court held that Mr Whitehead's causation argument must also fail, given that following discharge, Ms Bot was detained under the Mental Health Act for being psychiatrically unwell.  At this point, Mr Whitehead must have been on notice that the advice given by D2 was in doubt.

Accordingly, the Court struck out Mr Whitehead's claim against the three Defendants on the grounds that the claim disclosed no reasonable cause of action and/or that the claim had no real prospect of success.

As summary judgment had been entered for the Defendants on the grounds that there was no reasonable prospect of success, Mr Whitehead conceded that the matter fell within one of the exceptions to Qualified One Way Costs Shifting (QOCS) and that the Defendants could enforce their costs against him without order of the Court. (It was arguable that QOCS was not applicable in any event, as the claim was not based on personal injury, but economic loss.)


This case provides helpful guidance where a claim seeks to widen the duty of care owed by Healthcare Defendants into the realms of economic loss.  The Court was clear that it would not be fair, just or reasonable to impose such a duty, where a third party was claiming economic loss.  Whilst in each case the facts must be reviewed on their own merits and considered in light of the relevant legal principles, this ruling sets a useful future precedent to argue against any such extended duty of care in clinical negligence cases. 

Our national teams of clinical risk lawyers have extensive experience of supporting and advising healthcare providers in matters just like this and we are on hand to provide advice on the impact of this decision.


Jonathan Bonser

Jonathan Bonser


+44 (0) 161 934 3107

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