Godden & Others v Kent & Medway Strategic Health Authority [2004] EWHC

This was a claim by 31 former patients (G) of a general practitioner (A) who had made various complaints regarding A’s conduct including allegations of indecent assault and negligent treatment.  A was convicted of 13 counts of indecent assault and sentenced to 4 years’ imprisonment.  He was also struck off the medical register. G brought a claim for damages against the health authority.  G contended that the health authority was liable to G as a result of its breach of duty owed to all of A’s patients in its area arising from its obligations under the National Health Service Act 1977.   In particular G relied on s.29 of the Act and the health authority’s power under the Act to place doctors on or remove them from lists of medical practitioners.  In the alternative, G contended that the health authority was vicariously liable on the basis of a breach of a free-standing common law duty of care. The health authority applied to strike out the claim on the ground that it disclosed no reasonable ground for bringing the claim.

The High Court held that liability at common law or under private law against a body such as the health authority could arise from statute: Calderdale MBC v Gorringe [2002] EWCA applied.  The only relevant duty relied on by G was contained in s.29 of the Act.  However, the Act did not provide that the health authority was responsible for the provision of medical services; that responsibility was with the medical practitioners. There was a power to remove practitioners for misconduct but that was exercisable only by tribunals established for that purpose.  Furthermore, the Act did not create any private rights of action.  Therefore s.29 of the Act did not give rise to a common law duty of care that would not exist but for the statute and, in so far as the claim was based on such a duty, it had to be struck out.

Although the Act established a public law scheme, there was nothing in it that could be said to exclude the existence of the free-standing common law duty contended for by G.  The health authority had put forward a strong case doubting whether G would be able to satisfy the conditions to establish a free-standing common law duty of care as laid down in Caparo Industries Plc v Dickman (1990).   However, the court held that the claim should be allowed to proceed in relation to the claimant’s alternative submission, that the health authority was vicariously liable for the duty owed by its employees to the claimants at common law, and the strike-out defence succeeded on this ground alone.

Leave a Reply

Your email address will not be published.