In the recent case of Claire Selwood v Durham County Council (1);Tees, Esk & Wear Valleys NHS Foundation Trust (2) and Northumberland, Tyne & Wear NHS Foundation Trust (3) (2012) the Court of Appeal was asked to consider whether two mental health trusts owed a duty of care to an employee of the local authority who was attacked by a mental health patient.
The Claimant made a claim against her employer and the two mental health trusts following a brutal attack by a mental health patient who had made several threats to harm her. The mental health trusts were aware of the threats, but had not passed on the information to the Claimant.
The two mental health trusts obtained a strike out order at the County Court on the basis that they did not owe the Claimant a duty of care as she was not their employee. The Claimant appealed the decision and the Court of Appeal examined whether there could be a duty of care owed in these circumstances.
It was accepted that the cases of Smith v Chief Constable of Sussex Police (2009) and Mitchell v Glasgow City Council (2009) established that there is no duty to warn members of the public of risks to their safety, unless there is a relationship of proximity or some assumption of responsibility for the safety of the person at risk. In the case of an employee such a proximity or assumption is said to exist. In this case the Claimant was not an employee of the mental health trusts and therefore was treated as a member of the general public to whom there was no duty to warn her of the threats made.
The Court of Appeal examined the case law and decided that the strike out should be set aside because there was a prospect of success for the Claimant against the mental health trusts. In particular, reference was made to a joint-working policy between the council and the two mental health trusts. The policy referred to the possibility of sharing information where someone was at risk of harm. It was argued that this policy and the nature of the joint - working arrangement created an assumption of responsibility for the Claimant's safety and therefore a duty of care. The Court of Appeal also considered the test in Caparo Industries PLC v Dickson (1990) and particularly whether it could be fair, just and reasonable to impose a duty of care in these circumstances. In cases such as Smith and Mitchell policy reasons were usually cited for making it unfair to impose such a wide duty on public authorities. However, the Court of Appeal said that in this case it would not be opening the floodgates rather it would be extending the pool of employees in the case of a joint working arrangement.
The Court of Appeal also considered whether the Claimant could succeed in a claim for breach of Article 2 of the European Convention on Human Rights. This claim was allowed to proceed as it was determined that it was conceivable that the Claimant was at a real and immediate risk of serious harm and therefore there could be a duty to take steps to reduce the risk.
Although the threshold for overturning a strike out is low, as the Court of Appeal only had to establish that the case had some merit, the comments of the Court of Appeal suggest that the duty of care could be extended in these circumstances. This will be subject to the final hearing. If the Claimant is successful it could have wide reaching consequences for mental health trusts where there are joint-working agreements. Not only in the number of claims received, but also in respect of their duties to assess and share information.