Sandford & Anor v London Borough of Waltham Forest [2008] EWHC 1106 (QB)

[2008] EWHC 1106 (QB)

Case No 6SS02239

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21/05/2008

Before

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

(Sitting as a Judge of the High Court)

Between

GEOFFREY JAMES SANDFORDClaimants

MAUREEN LYDIA SCHERERClaimant

LONDON BOROUGH OF WALTHAM FORESTDefendant

Robert Sowersby (instructed by BTMK LLP) for Claimants

Andrew Warnock (instructed by Barlow Lyde & Gilbert) for Defendant

Hearing Hearing dates: 14 and 15 May 2008

Judgment

[1]On 21 April 2003 at about 6.50 a.m. Mrs. Lydia Sandford fell in the bedroom of her house at (“the House”). The House is in the area in respect of which the defendant, the Council of the London Borough of Waltham Forest (“the Council”), was and is the local authority. As a result of her fall Mrs. Sandford sustained a fracture of the proximal end of her right femur. She was taken to Whipps Cross Hospital, Leytonstone, London E11 on the day of the fall. Four days later the fracture was operated on and fixed internally. Thereafter, it seems, she made a satisfactory recovery, with the fracture healing well and not causing her any pain. However, Mrs. Sandford was in hospital for seven months. When she was fit for discharge she was not discharged to her home, but to a nursing home, Albany Nursing Home in Albany Road, Leyton (“the Nursing Home”). She remained in the Nursing Home from the date of her arrival, 17 November 2003, until her death on 18 October 2006. Mrs. Sandford was required to contribute towards the costs of her accommodation in the Nursing Home.

[2]In this action Mrs. Sandford’s executors claimed on behalf of her estate as damages from the Council the sums contributed by Mrs. Sandford towards the costs of her accommodation in the Nursing Home. They also claimed damages in respect of the pain and suffering and loss of amenity caused to Mrs. Sandford by the fracture of her right femur.

[3]The alleged basis of the claims of the estate of Mrs. Sandford against the Council was that Mrs. Sandford fell on 21 April 2003 because she had not been provided by the Council with equipment called cot-sides. It was common ground that at the date of the fall Mrs. Sandford, who was born on 14 April 1912, was aged 91 years and not in good health. It was also common ground that Mrs. Sandford was at that time a person in respect of whom the Council owed a statutory duty by virtue of National Health Service and Community Care Act 1990 s.47(1) (“NHS&CCA 1990 s.47(1)”) to assess her needs. It will be necessary to return to NHS&CCA 1990 s.47(1) and related provisions later in this judgment. However, the Council in fact, acting by an occupational therapist called Martelie Peach, undertook an assessment of Mrs. Sandford on 26 February 2003. Ms. Peach recommended that the Council provide various aids to Mrs. Sandford, including cot-sides. Some of the items of equipment recommended were provided relatively quickly, but the cot-sides had not been provided by the date of the fall. They were in fact provided on 24 April 2003. The case for Mrs. Sandford’s executors in this action was that she fractured her right femur on 21 April 2003 because she fell out of bed, and that she would not have fallen out of bed if the cot-sides had been provided by 21 April 2003.

[4]The justification for the claims for damages in respect of the contributions made by Mrs. Sandford towards the costs of her accommodation in the Nursing Home was said to be that, prior to the fall, Mrs. Sandford had been living in the House, albeit assisted by care provided 24 hours a day by members of her family on a rota basis and items of equipment provided by the Council. The effect of the fracture and the lengthy stay in hospital following it, it was contended, was that Mrs. Sandford was no longer able to live in the House with assistance as previously, and had had to be admitted to the Nursing Home. Thus it was asserted that the need to incur the cost of contributions towards accommodation fees in the Nursing Home was directly referable to the fall, which in its turn was directly referable to the absence of the cot-sides recommended by Ms. Peach.

[5]The case for the Council was that Mrs. Sandford had not in fact fallen out of bed on 21 April 2003, but had fallen whilst getting out of bed. As the cot-sides were not intended to prevent Mrs. Sandford leaving her bed, it was said that the absence of the cot-sides was in fact irrelevant to the fracture sustained by Mrs. Sandford. I shall return to the evidence as to how it was that Mrs. Sandford actually came to suffer the fracture of her femur. However, it is right to emphasise that, although it was contended on behalf of the Council that the lack of cot-sides was irrelevant to her injury, an important point made on behalf of the Council was that it was in fact for the claimants in this action to prove, on the balance of probability, that Mrs. Sandford would have avoided her injury if cot-sides had been provided, and not for the Council to prove the contrary. The significance of that point was that, as I shall explain, the quality of the evidence as to how Mrs. Sandford came to fall was not very satisfactory.

[6]A factual issue also arose from the fact, not in itself in dispute, that in May 2003, whilst in Whipps Cross Hospital, Mrs. Sandford was diagnosed as having suffered a stroke. While it appeared that actually she had not suffered a stroke, as from about May 2003 Mrs. Sandford was almost totally blind. It was suggested on behalf of the Council, but disputed on behalf of the executors of Mrs. Sandford, that as a result of her blindness Mrs. Sandford would have been unable to continue to live in the House in any event. The relevance of the point was that, so it was contended on behalf of the Council, it was for the claimants to prove, on a balance of probability, both that, but for her fall, Mrs. Sandford would not have entered the Nursing Home when she did, and what costs she incurred as a result of entering the Nursing Home which she would have avoided, but for the fall. The latter involved, it was said, proving on a balance of probability when Mrs. Sandford would have entered the Nursing Home, but for the fall.

[7]Notwithstanding the important factual issues as to the circumstances in which Mrs. Sandford came to fall on 21 April 2003 and as to the effects of her blindness on her ability to continue to live in the House, the main focus of the trial before me was on the question whether, assuming that I found in favour of the executors of Mrs. Sandford on the disputed factual questions, Mrs. Sandford had any cause of action against the Council anyway. Since that was the issue upon which the greater part of the trial was spent, it is convenient to consider it next in this judgment.

The law

[8]My attention was drawn to a number of authorities relevant to the issue whether Mrs. Sandford had any cause of action against the Council for failing to provide cot-sides to her before her fall. Before turning to them it is necessary to set out the material parts of the statutory provisions relating to the making of assessments of persons in the position of Mrs. Sandford and the provision of aids and equipment to such persons. The obligations of a local authority to undertake assessments and to provide aids and equipment arise solely as a result of Parliamentary enactment.

[9]For present purposes it is convenient to start with NHS&CCA 1990 s.47(1). One can ignore the references to sub-sections (5) and (6). “Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –(a) shall carry out an assessment of his needs for those services; and

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.”

[10]The expression “community care services” is defined for the purposes of Part III of National Health Service and Community Care Act 1990, which includes s.47, in s.46(3) as “services which a local authority may provide or arrange to be provided under any of the following provisions –(a) Part III of the National Assistance Act 1948;

(b) section 45 of the Health Services and Public Health Act 1968;

(d) section 117 of the Mental Health Act 1983;”

[11]Part III of National Assistance Act 1948 includes s.29. What is material for present purposes is that s.29(1), as amended, is in these terms:- “A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.”

[12]The final piece in the jigsaw of the legislative provisions is Chronically Sick and Disabled Persons Act 1970 s.2, as amended. So far as is relevant to the issues in this action the material provisions of s.2, as amended, are:- “(1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely – (a) the provision of practical assistance for that person in his home; … (e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience; … then, subject to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State) and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State), it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.”

[13]So far as is material to the issues in this action, the effect of the provisions which I have set out is that the Council, as the local authority for the area in which Mrs. Sandford lived before she was admitted to hospital, was bound to assess her needs for practical assistance in her home and for the provision of additional facilities designed to secure her greater safety, comfort or convenience in her home, because she was substantially and permanently handicapped by illness, and was then bound to supply what was required to meet those needs.

[14]In the Amended Particulars of Claim in this action reference was made to the provisions which I have quoted, and also to National Health Service Act 1977 Schedule 8 paragraph 3(1). I do not think that the latter provision is relevant to any issue which I have to determine, as it is concerned with the provision of home help and laundry facilities.

[15]It was common ground before me that the Court of Appeal decided in Wyatt v. Hillingdon London Borough Council

(1978) 76 LGR 727

that the provisions of National Assistance Act 1948 s.29 and Chronically Sick and Disabled Persons Act 1970 s.2 did not give rise to any statutory duty actionable at the suit of a private individual. The leading judgment was that of Geoffrey Lane LJ. At page 733 he observed:- “I would go further in this particular case. It seems to me that a statute such as this which is dealing with the distribution of benefits – or, to put it perhaps more accurately, comforts to the sick and disabled – does not in its very nature give rise to an action by the disappointed sick person. It seems to me quite extraordinary that if the local authority, as is alleged here, provided, for example, two hours less home help than the sick person considered herself entitled to that that can amount to a breach of statutory duty which will permit the sick person to claim a sum of monetary damages by way of breach of statutory duty.”

[16]Mr. Andrew Warnock, who appeared on behalf of the Council, emphasised that passage from the judgment of Geoffrey Lane LJ. He reminded me that the substance of it had been approved by the House of Lords in O’Rourke v. Camden London Borough Council

[1998] AC 188

. In that case the issue was whether a homeless person had a private law cause of action for alleged breach of Housing Act 1985 Part III. However, before coming to the observations of Lord Hoffmann, who gave the only substantive speech in that case, upon which Mr. Warnock relied, it is convenient, since Lord Hoffmann himself referred to them, to consider the observations of Lord Browne-Wilkinson in X v. Bedfordshire County Council

[1995] 2 AC 633

at pages 731-732. In the latter case the principal issue was whether the various claimants had private law causes of action for alleged breaches by local authorities of statutory duties in the areas of child protection and education. What Lord Browne-Wilkinson said was:- “The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: Cutler v. Wandsworth Stadium Ltd.

[1949] AC 398

; Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No.2)

[1982] AC 173

. However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy. Thus the specific duties imposed on employers in relation to factory premises are enforceable by an action for damages, notwithstanding the imposition by the statutes of criminal penalties for any breach: see Groves v. Wimborne (Lord)

[1898] 2 QB 402

. Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.”

[17]In O’Rourke v. Camden London Borough Council at pages 193 – 194 Lord Hoffmann was concerned with indications in Housing Act 1985 Part III contrary to the intention of Parliament being that private individuals should be able to sue for alleged breach of statutory duty. He said:- “The first is that the Act is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. The expenditure interacts with expenditure on other public services such as education, the National Health Service and even the police. It is not simply a private matter between the claimant and the housing authority. Accordingly, the fact that Parliament has provided for the expenditure of public money on benefits in kind such as housing the homeless does not necessarily mean that it intended cash payments to be made by way of damages to persons who, in breach of the housing authority’s statutory duty, have unfortunately not received the benefits they should have done. This was the view forcibly expressed by Geoffrey Lane LJ in Wyatt v. Hillingdon London Borough Council

(1978) 76 LGR 727

, 733 when the plaintiff claimed damages from his local authority for failure to provide benefits under the Chronically Sick and Disabled Persons Act 1970: [Lord Hoffmann then quoted the passage which I have set out] This was an unreserved judgment and I think that on reflection Geoffrey Lane LJ would have been willing to substitute “was” for “considered herself”. With that amendment, I would associate myself with these remarks. In X (Minors) v. Bedfordshire County Council

[1995] 2 AC 633

, 731 – 732 Lord Browne-Wilkinson likewise said: [I have already quoted the passage quoted by Lord Hoffmann]” [Lord Hoffmann then quoted the passage which I have set out] [I have already quoted the passage quoted by Lord Hoffmann]”

[Lord Hoffmann then quoted the passage which I have set out]

[18]Mr. Robert Sowersby, who appeared on behalf of the executors of Mrs. Sandford, sought to avoid the effect of accepting that the Court of Appeal in Wyatt v. Hillingdon London Borough Council had determined that there was no private law right of action for breach of the statutory duties arising under National Assistance Act 1948 s.29 or Chronically Sick and Disabled Persons Act 1970 s.2 by contending that the Council had owed to Mrs. Sandford a duty of care at common law, once it had assessed what equipment or aids Mrs. Sandford needed, to supply that equipment or those aids within a reasonable time. He submitted that it had not been decided in Wyatt that there could be no common law duty of care in a case like the present. Geoffrey Lane LJ had considered, at page 734, the contention in that case that a common law duty of care had been owed, and had concluded that there was no common law duty of care. However, contended Mr. Sowersby, Geoffrey Lane LJ had been at pains to limit his observations to the facts of the case before him. What he said was:- “With regard to the further suggestion that in some way an action in negligence can be established against a local authority quite apart from the breach of statutory duty, I confess that does not impress me. It seems to me that in this case the duty, such as it is, arises if at all from the statute and the statute only. It is not the sort of situation where the home help has acted negligently – for example, has dropped the plaintiff and injured her – or that the bed provided by the local authority has proved to be a defective bed which has collapsed and injured the plaintiff. It seems to me that this is a case where the duty starts and ends with the statute.”

[19]Both Mr. Warnock and Mr. Sowersby reminded me of passages in the speech of Lord Hoffmann in Gorringe v. Calderdale Metropolitan Borough Council

[2004] 1 WLR 1057

, but for different purposes.

[20]Mr. Warnock wanted me to notice the comment of Lord Hoffmann at paragraph 25 on page 1065 about the case of O’Rourke:- “In the absence of a right to sue for breach of the statutory duty itself, it would in my opinion have been absurd to hold that the council was nevertheless under a common law duty to take reasonable care to provide accommodation for homeless persons whom it could reasonably foresee would otherwise be sleeping rough.”

[21]The submission of Mr. Warnock was that, in effect, what Lord Hoffmann there meant was that it would be ridiculous for the Court to hold that breach of a particular statutory duty was not actionable by a private individual and then produce exactly the same result as if it had been held that the breach of statutory duty was actionable by finding a duty of care at common law in precisely the same terms as the statutory duty. That submission, in my judgment, is plainly correct, as to the meaning of the observations of Lord Hoffmann. I respectfully agree with the sentiments of Lord Hoffmann, which, in my view, obviously represent both common sense and the law.

[22]On the other hand, Mr. Sowersby emphasised what Lord Hoffmann said in paragraph 38 at pages 1068 – 1069:- “My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. A hospital trust provides medical treatment pursuant to the public law duty in the 1977 Act, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well established since Geddis v. Proprietors of Bann Reservoir

(1878) 3 App Cas 430

.”

[23]Mr. Warnock submitted that it was as absurd in the present case for the Council to have been under a common law duty of care to provide cot-sides within a reasonable period of time as it would have been for the council in O’Rourke to have been under a common law duty of care to house the claimant in that case. He contended that, in substance, the duty of care contended for in this case was simply to supply equipment which the Council was bound to supply by virtue of Chronically Sick and Disabled Persons Act 1970 s.2, and that the introduction of the concept of that being done within a reasonable time did not affect that substance.

[24]Mr. Sowersby, however, submitted that the duty for which he contended was not in substance the same as the statutory duty imposed on the Council by Chronically Sick and Disabled Persons Act 1970 s.2. He said that the duty for which he contended arose only at the point at which the Council had decided how to perform its statutory duty – that is to say, what aids and equipment to supply and had informed Mrs. Sandford of what was going to be provided. He submitted that at that stage the Council was in the same position as a charity would have been, if it had been approached for aids and equipment by Mrs. Sandford, and had agreed to supply such without payment. In those circumstances, Mr. Sowersby asserted, the charity would have assumed duties of care to Mrs. Sandford to supply the proffered aids and equipment, and to do so within a reasonable time.

[25]Both Mr. Warnock and Mr. Sowersby reminded me that in X v. Bedfordshire County Council at page 739 Lord Browne-Wilkinson observed:- “If the plaintiff’s complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed (e.g. the running of a school) the question whether or not there is a common law duty of care falls to be decided by applying the usual principles i.e. those laid down in Caparo Industries Plc v. Dickman

[1990] 2 AC 605

, 617 – 618. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate: Is it just and reasonable to impose a duty of care? See Rowling v. Takaro Properties Ltd.

[1988] AC 473

; Hill v. Chief Constable of West Yorkshire

[1989] AC 53

. However the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. The position is directly analogous to that in which a tortious duty of care owed by A to C can arise out of the performance by A of a contract between A and B. In Henderson v. Merrett Syndicates Ltd.

[1995] 2 AC 145

your Lordships held that A (the managing agent) who had contracted with B (the members’ agent) to render certain services for C (the Names) came under a duty of care to C in the performance of those services. It is clear that any tortious duty of care owed to C in those circumstances could not be inconsistent with the duty owed in contract by A to B. Similarly, in my judgment a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.”

[26]In his written skeleton argument Mr. Warnock submitted that:- “19. … The criticism instead is that the Defendant authority then took too long to provide the welfare benefit she [Ms. Peach] advised was necessary. There is no independent common law duty to provide welfare benefits. The claim is inextricably wedded to the fact that the Defendant had statutory duties to provide welfare benefits. 20. If it is necessary to go on and consider the principles of tortious liability in Caparo v. Dickman (it is submitted it is not in the light of the above authorities) then:a. The Defendant itself (as opposed to Ms. Peach) did not enter into a relationship of proximity with the Claimants/the Deceased;

b. Imposition of a duty would be inconsistent with the fact that Parliament has not created a right of action in damages for breach of the statutes;

c. Imposition of a duty would not be fair just or reasonable as it would cut across the statutory social welfare scheme, giving common law rights to welfare benefits;

d. It would open the floodgates. Claims could be brought by anyone who suffered on-going pain or discomfort where there had been a delay in providing aids and services;

e. It would also cut across the law of contract. What is alleged in this case is a promise to supply goods. Such promises are a matter for the law of contract, where consideration is required. The deceased could not have enforced a promise by a private individual to supply the cot sides in contract, let alone tort, absent consideration. Why should she be able to do so against the Defendant?

f. The Deceased’s remedies against the Defendant for a failure to provide what had been assessed as necessary lay in public law enforcement of the Defendant’s statutory duties. BREACH 21. The Defendant has accepted that there was a delay in the provision of the cot-sides. In public law terms, this might be characterized as maladministration. But it is not accepted it amounts to negligence. If there is a common law duty, it is not clear how breach of it could be assessed. There is no specific time-scale set out in the statutes for the provision of assessed needs, although judicial review would no doubt be granted if there was an unreasonable delay. However, there is no evidence that as a matter of the general practice of local authorities the time taken to supply these cot sides was outside the bands of what was reasonable. The assessment by Ms. Peach was on 26th February 2003. The accident was on 21st April 2003. The cot sides were provided on 24th April 2003.”

BREACH

[27]Mr. Sowersby responded to the points made in the passage which I have quoted from the written skeleton argument of Mr. Warnock in a “Claimants’ Further Skeleton Argument”. He said:- “10. As regards the defendant’s particularised observations on Caparo:a. Ms. Peach was the defendant’s employee or agent, and therefore to be identified with D for these purposes; it is misleading and absurd to suggest that there was no proximity because of this artificial distinction.

b. There would be no inconsistency in holding that there is a duty of care in circumstances such as these, and if there was such an inconsistency, that would not be a proper or sufficient ground for denying the existence of a duty of care.

c. It is hard to see how the imposition of a duty would cut across the statutory welfare scheme. That phrase is usually deployed in education cases or the like where the imposition of a duty to parents might conceivably cut across the primary statutory duty to children. It is hard to see how it would have any application here. To enforce a duty of care in circumstances like these would be to encourage local authorities to do that which they have already determined that they should do. It is not clear where the purported clash of interests lies.

d. The claim would not open any floodgates. It is already established law that the negligent execution of a task by a public authority (rather than negligent failure to make a given decision) can readily found a claim in negligence …

e. The defendant could have avoided this claim either by providing the cot-sides within a reasonable period of time, or by informing LS’ family that it was having difficulty supplying the item in question, in which case the family could and would have gone about obtaining the cot-sides themselves. C does not seek to enforce the delivery of these items in tort, it seeks to recover damages to compensate it for the wholly predictable outcome of D’s failure to provide them within a reasonable timeframe, notwithstanding D’s representation that it would do so.

f. The remedy which D recommends (public law enforcement of C’s rights) would, of course, be of no use whatsoever to LS, or to C, in the circumstances of this case. It is, with respect, hard to see how that is a factor which militates against the imposition of a common law duty of care (the existence of duty being one thing which would actually provide some form of remedy). 11. D suggests that there is no evidence that the delay in the provision of the cot-sides was unreasonable (or that it amounted to negligence). That ignores somewhat D’s own written admission that the delay was ‘unacceptable’ … It also ignores the classification of the cot-sides as urgently required, and the fact that all of the other equipment was delivered over a month before the cot-sides, which had clearly been overlooked. Again, in circumstances such as this, where the cot-sides were the very items which LS’ family were trying to obtain … and the items which were required most urgently, then C would suggest that the court is perfectly entitled to find that there was a negligent delay in failing to provide the cot-sides and/or failing to notify LS’ family of the likely extent of the delay so that they would know not to rely on D, and to make alternative provision for LS.”

[28]In support of his submissions that a duty of care existed at common law to provide the cot-sides within a reasonable time Mr. Sowersby relied on two cases in particular. One was the decision of the Court of Appeal in Kent v. Griffiths

[2001] QB 36

. The other was the decision of the Court of Appeal in A v. Essex County Council

[2004] 1 WLR 1881

[29]In Kent v. Griffiths an ambulance failed to attend an emergency call within a reasonable time. The trial judge found that the delay in attendance had exacerbated the injuries of the claimant. He also found that the ambulance should have arrived with the claimant at least 14 minutes earlier than it did. The delay in the arrival of the ambulance was unexplained. The only substantive judgment in the Court of Appeal was that of Lord Woolf MR. At paragraph 27 Lord Woolf referred to an earlier decision to which Slade LJ had been a party:- “Slade LJ used the shorthand of referring to 999 calls. However, it would amount to a misunderstanding of his approach to attach any magic to the fact that the response is to a 999 call. It is the nature of and the circumstances in which the assistance is provided and required which is important. The issue which can be important is whether it is an urgent call made by phone or otherwise for the assistance of the police involving conflicting priorities or difficult decisions as to the best way to protect the public against crime, or whether it is a routine task which involves no policy or resource issues. In the latter situation a duty can readily be inferred. In the former situation it is unlikely it will exist. In between there are a spectrum of different situations which will have to be judged on their facts. ”

[30]At paragraph 47 of his judgment Lord Woolf addressed the circumstances of the case before him:- “An important feature of this case is that there is no question of an ambulance not being available or of a conflict in priorities. Again I recognise that where what is being attacked is the allocation of resources, whether in the provision of sufficient ambulances or sufficient drivers or attendants, different considerations could apply. There then could be issues which are not suited for resolution by the courts. However, once there are available, both in the form of an ambulance and in the form of manpower, the resources to provide an ambulance on which there are no alternative demands, the ambulance service would be acting perversely “in circumstances such as arose in this case”, if it did not make those resources available. Having decided to provide an ambulance an explanation is required to justify a failure to attend within reasonable time.”

[31]The material facts of the case thus seem to be that an ambulance was requested, it was emphasised to the ambulance control that the ambulance was required urgently and it was agreed that an ambulance would be sent. In those circumstances the legal analysis seems to be that by agreeing to send the ambulance the relevant authorities assumed a relationship of proximity to the claimant which required it to provide the ambulance as soon as was reasonably possible. Lord Woolf’s comments in the passages which I have quoted seemed to recognise that, had there been some question as to the ability of the authorities to provide the ambulance, probably a duty of care in tort would not have been owed. The decision does appear to depend upon very specific facts.

[32]Mr. Warnock submitted that the key to the decision in Kent v. Griffiths was to be found in paragraph 45 of the judgment of Lord Woolf:- “Here what was being provided was a health service. In the case of health services under the Act the conventional situation is that there is a duty of care. Why should the position of the ambulance staff be different from that of doctors or nurses? In addition the arguments based on public policy are much weaker in the case of the ambulance service than they are in the case of the police or the fire service. The police and fire services’ primary obligation is to the public at large. In protecting a particular victim of crime, the police are performing their more general role of maintaining public order and reducing crime. In the case of fire the fire service will normally be concerned not only to protect a particular property where a fire breaks out but also to prevent fire spreading. In the case of both services, there is therefore a concern to protect the public generally. The emergency services that can be summoned by a 999 call do, in the majority of situations, broadly carry out a similar function. But in reality they can be very different. The ambulance service is part of the Health Service. Its care functions include transporting patients to and from hospital when the use of an ambulance for this purpose is desirable. It is therefore appropriate to regard the LAS as providing services of the category provided by hospitals and not as providing services equivalent to those rendered by the police or the fire service. Situations could arise where there is a conflict between the interests of a particular individual and the public at large. But in the case of the ambulance service in this particular case, the only member of the public who could be adversely affected was the claimant. It was the claimant alone for whom the ambulance had been called.”

[33]In A v. Essex County Council the issues concerned information to be provided by an adoption agency to prospective adopters concerning the child which it was proposed should be placed with the prospective adopters with a view to adoption. So far as is material, the issues and the view of the Court of Appeal on the second issue, which is the one relevant in this action, can be found in this passage of the judgment of the Court, delivered by Hale LJ, at page 1899:- “49. … Here there seem to be two questions. First, is there a duty of care in relation to the contents of the forms and reports which are made? Second, is there a duty of care in relation to the communication of the information which the agency has decided that the prospective adopters should have? 50. The second question is much easier than the first. We see no difficulty in a duty of care to communicate to the prospective adopters that information which the agency has decided that they should have. If an agency has decided that the prospective adopters should have the child’s Form E and medical report, together with any specific item of information which the agency or the panel considers that they should have, and its staff fail to take reasonable steps to ensure that that information is in fact communicated, in circumstances where it is foreseeable that actionable harm will be caused if it is not, then there should be liability.”

[34]Mr. Sowersby submitted that the decision on the second issue in A v. Essex County Council was analogous to the situation in the present case. The Council had determined to provide the cot-sides to Mrs. Sandford, but did not do so before her fall. An obvious difference between that case and this, however, is that in A v. Essex County Council the information which the adoption agency had decided to provide never was provided, whilst in the present case the cot-sides were provided, but just not before the fall on 21 April 2003. Another difference seems to be that in A v. Essex County Council the adoption agency was not compelled by statute to provide particular information to prospective adopters, but had a discretion as to what information to provide. In the present case the Council had no real discretion. It was bound to undertake an assessment – obviously properly – and was then bound to supply the aids and equipment which had been assessed as being necessary.It may also be that the decision in A v. Essex County Council depended critically upon the relationship between an adoption agency and prospective adopters.

[35]In answer to the reliance placed by Mr. Sowersby on the decisions in Kent v. Griffiths and A v. Essex County Council Mr. Warnock drew to my attention a recent decision of the Court of Appeal, Rowley v. Secretary of State for Work and Pensions

[2007] 1 WLR 2861

. In that case claimants sought to contend that the Child Support Agency, for the work of which the Secretary of State was responsible, owed a duty of care at common law to them to carry out assessments provided for by Child Support Act 1991 timeously and with reasonable care and skill. In the course of delivering the leading judgment, Dyson LJ considered the issue whether the Secretary of State had assumed voluntary responsibility to the claimants as to the manner in which and the timing at which assessments were made. He said, at pages 2876 – 2877:- “51. The principal reason advanced by Mr. ter Haar to support the argument that the Secretary of State owes a duty of care on the grounds of an assumption of responsibility is that the person with care is not obliged to have recourse to the 1991 Act. A person with care may obtain maintenance from the absent parent by other means, e g by agreement. But that, in my view, is not a sufficient reason for holding that there is an assumption of responsibility by the Secretary of State whenever he performs his functions under the statutory scheme. The critical question is whether the Secretary of State voluntarily assumes responsibility and that does not depend on whether the parent chooses or is obliged to make an application for a maintenance assessment. 52. The assumption of responsibility test was considered by the House of Lords in Customs and Excise Comrs. v. Barclays Bank plc

[2007] 1 AC 181

. The Customs and Excise Commissioners obtained freezing injunctions in respect of assets of two companies including funds held to specified accounts in a bank. The injunctions were notified to the bank which subsequently failed to prevent payments out of the accounts in breach of the injunctions. The commissioners claimed damages for negligence against the bank. The House of Lords held that the bank owed no duty of care to the commissioners. It could not be understood as having voluntarily assumed responsibility for its actions so as to give rise to a duty of care to the commissioners. Lord Bingham said, at para 14:

“I do not think that the notion of assumption of responsibility, even on an objective approach, can aptly be applied to the situation which arose between the commissioners and the bank on notification to it of the orders. Of course it was bound by law to comply. But it had no choice. It did not assume any responsibility towards the commissioners …” 53. The same point was made by Lord Walker, at paras 73 and 74. The bank had not in any meaningful sense made a voluntary assumption of responsibility. By the freezing order it had responsibility thrust upon it. Lord Mance made observations to similar effect, at paras 93 and 94. He said that the concept of assumption of responsibility is particularly useful in the two categories of case identified by Lord Browne-Wilkinson in White v. Jones [1995] 2 AC 207, 274F-G. These are (i) where there is a fiduciary relationship and (ii) where the defendant has voluntarily answered a question or tenders advice or services in circumstances where he knows or ought to know that an identified person will rely on his answers or advice. The involuntary nature of the bank’s involvement with the commissioners made it impossible to regard the situation as one “akin to contract”. 54. When a person with care applies to the Secretary of State for a maintenance assessment to be made, he is obliged to make it. In making the assessment, he is not a volunteer in any sense. It is true that the 1991 Act also gives the Secretary of State certain discretionary powers, for example, the power to make an interim maintenance assessment, to collect maintenance and to seek liability orders for the purpose of enforcement. But in my judgment, if he decides not to exercise one of these statutory powers, he is not, in making that decision, assuming a voluntary responsibility towards those who are foreseeably affected by it. Likewise if he decides that he will exercise one of the powers, it is not apt to describe what he does when he exercises the power as a voluntary assumption of responsibility. He is not doing anything that is “akin to contract”

. In determining whether or not (and if so how) to exercise his statutory powers, the Secretary of State often has difficult and sensitive decisions to make: see further at para 82 below. These decisions are amenable to judicial review. They are far removed from a voluntary assumption of responsibility. 55. Nor do I accept the submission of Mr. de Mello that, in order to establish a voluntary assumption of responsibility, it is sufficient to show that the caseworkers of the CSA act as professional persons or in a way that is analogous to that of professional persons. Even if the tasks performed by caseworkers involve the exercise of skill and judgment, that does not of itself mean that, in performing those tasks, they are voluntarily assuming responsibility to those who are foreseeably affected by what they do. To focus on the elements of skill and judgment is to ignore the requirement that the assumption of responsibility be voluntary if it is to found a common law duty of care.”

[36]Mr. Warnock submitted, rightly as it seems to me, that what was decided in Rowley which is material to the issues in the present case is that the undertaking by a public body of a task which it is compelled to undertake by statute cannot, of itself, found a duty of care at common law as to the manner or timing of the undertaking of the task because the body undertaking the task is not, by undertaking it, voluntarily assuming responsibility to anyone who may be affected by how that task is undertaken. Mr. Warnock also submitted that in the present case the Council did not assume responsibility voluntarily to Mrs. Sandford. It was compelled by NHS&CCA 1990 s.47(1) to undertake the assessment which Ms. Peach in fact undertook on 26 February 2003. It was then compelled by Chronically Sick and Disabled Persons Act s.2 to provide to Mrs. Sandford the aids and equipment which it had assessed should be supplied to her. I accept those submissions also.

[37]In my judgment Mr. Warnock was correct in submitting that the duty of care for which Mr. Sowersby contended was in substance performance of the statutory duty arising under Chronically Sick and Disabled Persons Act 1970 s.2 to supply necessary aids and equipment to Mrs. Sandford. The complaint advanced against the Council was not properly characterised, as it seems to me, as a failure to provide the cot-sides within a reasonable time. Rather it was a failure to supply them at all before Mrs. Sandford fell. Time, as such, was immaterial. If the cot-sides had been supplied on 20 April 2003, it may be that it could still have been said that they had not been supplied within a reasonable time, but it could not sensibly have been contended that the Council was thereby in breach of a duty of care. The damage which it was contended that Mrs. Sandford sustained was said to have been suffered because the cot-sides had not been supplied, not because they were supplied later than they might have been.

[38]It follows that I find that the Council did not owe to Mrs. Sandford the duty of care alleged to found the claims against the Council pursued before me both because the duty contended for was in substance identical to a statutory duty held in Wyatt v. Hillingdon London Borough Council not to be actionable at the suit of a private individual and because, in any event, in performing its duties under Chronically Sick and Disabled Persons Act 1970 s.2 the Council was not voluntarily assuming any responsibility to Mrs. Sandford, but doing that which it was required by statute to do.

[39]I have no difficulty in recognising that a local authority, like the Council, could assume a duty of care at common law in the course of performing its statutory duties under National Assistance Act 1948 s.29 and Chronically Sick and Disabled Persons Act 1970 s.2. In Wyatt Geoffrey Lane LJ gave examples of the sort of cases in which a duty of care at common law might be owed – the home help dropping the patient or a defective bed being supplied. The analysis of Lord Hoffmann at paragraph 38 of his speech in Gorringe is entirely conventional and well-established. It is not inconsistent with the passages to which Mr. Warnock drew attention concerning the circumstances in which a private law right of action for breach of statutory duty would not be found to exist. The application of the principles explained by Lord Browne-Wilkinson in X v. Bedfordshire County Council at page 379 explain the comment of Lord Hoffmann at paragraph 25 of his speech in Gorringe on the decision in O’Rourke. What is important in every case in which it is contended that a person under a statutory duty in respect of which a private right of action for breach does not exist also owes a duty of care is to consider exactly what it is said that due performance of the duty of care involves. If it is to exercise some discretion in a particular way, the likelihood is that the common law duty of care contended for does not exist. On the other hand, if the alleged duty of care is to undertake with care and skill what the relevant authority has decided to do, rather than being compelled by statute to do, a duty of care may be found to exist. Plainly these two scenarios are far from being the only possible ones.

[40]In the present case it seems to me, with all respect to Mr. Warnock, that his attempt to distinguish, for the purposes of the question whether the Council owed a duty of care at common law to Mrs. Sandford, between Ms. Peach and the Council, was both unreal and irrelevant. If it mattered, Ms. Peach attended Mrs. Sandford in order to make the assessment for which NHS&CCA 1990 s.47(1) provided and the making of that assessment was a duty of the Council. If Ms. Peach was not an employee of the Council, she was at least its agent for the purposes of making the assessment. Why this did not in fact matter was because, as Mr. Warnock himself submitted, no complaint was made about the assessment or how it was carried out. While I do not have to decide these questions, and the points have not been argued, I am inclined to the view that Ms. Peach did owe a duty of care at common law to undertake her assessment with reasonable care and skill, and that the Council would have been vicariously liable for any breach of that duty. In fact, of course, the complaint actually made was about the failure of the Council to deliver the cot-sides.

[41]I also reject the submission of Mr. Warnock that the imposition of the duty contended for, if otherwise appropriate, would somehow be inconsistent with the statutory scheme governing the provision of aids and equipment to those falling within the scope of National Assistance Act 1948 s.29(1). What in fact was contended for was presented as performance with reasonable care and skill of a decision made in accordance with the statutory scheme. The duty contended for, to deliver the cot-sides within a reasonable time, would not cut across the statutory scheme or open any floodgates. It would be specific to the circumstances of the present case, and it may be that in the future there would be few, if any, similar cases.

[42]However, where the duty of care contended for did run into difficulty, as it seems to me, quite apart from the grounds upon which I have already indicated that I find that there was no such duty, was in relation to what performance of the duty was said to involve. Duties of care ordinarily regulate the manner in which something is done. In some circumstances a duty of care may require a person to do something, but usually it imposes an obligation to take care when doing something which the party under the duty has voluntarily resolved to undertake. So far as I am aware, it has never been held that a person owed a duty of care at common law to do something at one point in time as opposed to doing it at another, when neither of these points is, in effect, immediately, as in Kent v. Griffiths. There is, I think, plainly a problem in relation to imposing a duty of care in circumstances in which, in order to determine whether any duty of care at all was owed an investigation is necessary. As Lord Woolf MR explained in his judgment in Kent v. Griffiths, there was no problem in that case because there was no need to consider resources. Ambulance control had said that it would send an ambulance. However, if there had been a need to consider resources, Lord Woolf suggested that that fact of itself would lead to the conclusion that no duty of care was owed.

[43]In the present case, in order to reach a conclusion as to what would have been a reasonable period for the Council to have taken to deliver the cot-sides to Mrs. Sandford, one would need to know at least whether cot-sides of the appropriate size and type were held in stock or would have to be obtained. If they were held in stock, one would need to know where they were held, that is to say, how far from the House, what resources were available to deliver the cot-sides to her and what were the other calls upon those resources. If the cot-sides were not held in stock, one would need to know, perhaps, how many manufacturers of cot-sides there were, whether the prices of equivalent cot-sides differed, and if so, by how much, and what delivery times would have been quoted by any possible suppliers. It could be necessary to consider the balance between a cheaper price and a longer delivery time. All of this, in my judgment, leads to the conclusion that the nature of the supposed common law duty of care, to deliver cot-sides within a reasonable time, is not a suitable one to be the subject of a duty of care in tort, quite apart from the other objections to it which I have accepted. It is a type of obligation which is really only fit to be the subject of a contract between parties. While Mr. Warnock raised the issue of how breach of the supposed obligation could be assessed under the heading of breach, it seems to me that the problem goes to the root of whether it is fair, just or reasonable to impose a duty of care which has inherent in it this problem. As I have said, I think that the answer was given by Lord Woolf MR in Kent v. Griffiths.

[44]My conclusion, therefore, is that, even if the contested facts were resolved in favour of the executors of Mrs. Sandford, the claims against the Council fail. However, it is appropriate to return to those contested facts.

The circumstances in which Mrs. Sandford fell on 21 April 2003

[45]Mrs. Sandford herself made no formal witness statement before her death about how she came to fall, notwithstanding that the claim form in this action was issued on 22 June 2006, about four months before her death. The original Particulars of Claim served on 2 October 2006 bore a statement of truth signed not by Mrs. Sandford, but by her son, Geoffrey, the first claimant.

[46]An account of how Mrs. Sandford came to fall was recorded by a triage nurse at Whipps Cross Hospital on the occasion of her admission to hospital at about 7.50 a.m. on 21 April 2003. What was written was:- “Patient fell while getting out of bed fell on ® leg son pick her up off floor.”

[47]No one was in her bedroom with Mrs. Sandford at the time she fell. Her son, Geoffrey, was in the House. His account of what he knew about what happened he set out in his first witness statement, dated 28 October 2007:- “13. On Monday 21st April 2003 at about 6.50am my mother fell out of her bed. She did not fall getting out of bed as has been suggested. If the bed had had cot sides, she would not have fallen. I was looking after my mother at this time, and had been into her room to check on her, as, because she had had a good night I had not heard any sounds coming from her room. When I went in, she was sound asleep. Moments after I had got back to my room, and had just got back into bed, I heard her moving on the baby monitor that we used, but before I could get to her room I heard a thump and she had fallen from her bed. I should add that my wife and I were looking after my mother at this time and staying at her house.14. The reason I say that my mother was not trying to get out of bed is that we as a family, had a set routine agreed with my mother, that if she wanted to get out of bed to use the toilet, or for any reason, she would call us, hence the baby monitor.

15. At this time, because of the infection my mother had, possibly a water infection, which meant that she was very itchy down below and very agitated in her sleep as a result, meaning that she tended to thrash about, she was at her most vulnerable, at night and this was made clear to Ms. Peach at the assessment, (in fact Ms. Peach, made a point of sniffing to see if there was a smell of urine, to see if she was bed wetting, which she was not), and she agreed that the cot sides were urgently needed.

16. This is why if we heard any movement from her whichever of us staying with her would get to her quickly and stay until she was settled and comfortable, usually by her applying Aqueous Cream to her private area, or helping her use the commode if that was what she wanted.

17. When I went into my mother’s bedroom, after I heard the thump, I saw her lying on the floor next to her bed. I believe she had been fast asleep but the fall had woken her up. She was obviously in pain.

18. I called an ambulance and my mother was taken to Whipps Cross Hospital where she underwent x-ray and was told that she had suffered a fracture to her right femur.”

[48]From that account it did not appear that Mr. Geoffrey Sandford accompanied his mother to the hospital in the ambulance. However, he was cross-examined about the note made by the triage nurse which I have quoted. He said that he had spoken to the triage nurse, but had not said that his mother had fallen whilst getting out of bed. Thus it appeared that Mr. Sandford had accompanied his mother to hospital. However, he did not volunteer what he did say to the triage nurse. Mr. Sandford told me that his mother “would not have” told the triage nurse that she had fallen getting out of bed. He did not tell me what, if anything, Mrs. Sandford had said to the triage nurse in his presence and hearing.

[49]It is, I think, normal when a person who has suffered injury presents himself or herself in the Accident and Emergency Department of a hospital, for that person to be seen first by a triage nurse. The role of the triage nurse is, essentially, to obtain information, by enquiry and inspection, to enable an assessment to be made of the urgency with which the patient needs to be treated. Part of the process is to enquire as to how the presenting injury was sustained. The nature of the accident could be relevant to the nature or timing of the appropriate treatment. It seems obvious that the triage nurse in this case asked how Mrs. Sandford had sustained her injury to her leg. It appears equally obvious that the triage nurse understood that what had happened was that she had fallen while getting out of bed. It is possible that the triage nurse misunderstood what was said, but it is not especially likely, as what was written down was a simple answer to a routine question. The only answer to the question why the triage nurse wrote down what was recorded offered by Mr. Geoffrey Sandford was that he had not conveyed that information and his mother “would not have”. That is not satisfactory. The triage nurse must have got the information from somewhere. Absent misunderstanding, what was written down was what the triage nurse was told. Mr. Sandford did not tell me in his evidence what he did say to the triage nurse or what his mother said in his presence. In particular he did not say that either of them actually told the triage nurse that Mrs. Sandford broke her leg falling out of bed. If there had been that evidence, there would have been a basis for rejecting the accuracy of the record of the triage nurse on the grounds of misunderstanding.

[50]I have to say that I did not find Mr. Geoffrey Sandford to be a very satisfactory witness. It seemed to me that his evidence was influenced by a considerable degree of animosity towards the Council and that this tempted him to present his evidence in terms most calculated to improve the prospects of success of the claims in this action or to disparage the Council and its officers. There were a number of examples of this, of which some are mentioned in the remainder of this judgment. The consequence is that I did not feel that I could accept the evidence of Mr. Sandford on any contested issue.

[51]At paragraph 3 of his first witness statement Mr. Sandford explained what his mother had been able to do before her fall in this way:- “She was able to feed herself, with food cooked by the family and wash herself, she was able to get in and out of bed, dress and undress herself, although one of us would always be present. The main reasons for the 24-hour care that we gave her, was only because we did not want her to cook due to her poor eyesight, and the possibility of another TIA/mini stroke. ” Thus there was no suggestion in Mr. Sandford’s witness statement that his mother was incapable of getting out of bed – quite the reverse. However, in re-examination he told me that his mother was barely able to sit up in bed.

[52]On the assumption that what Mr. Sandford said about his mother’s ability to get out of bed in his first witness statement was correct, the account of how Mrs. Sandford fell set out by the triage nurse was not in fact inconsistent with the evidence of Mr. Sandford at paragraphs 13 to 18 inclusive of his first witness statement. Mr. Sandford said that, before he heard the thump, which must have been his mother falling to the floor, he had heard her moving. He plainly could not say whether she was moving because she was trying to get out of bed or whether she was moving whilst asleep. However, a movement loud enough to attract attention was perhaps more likely to have been undertaken whilst awake rather than to have been something like turning over in bed.

[53]Without any proper foundation for rejecting the accuracy of the note of the triage nurse, in my judgment it is appropriate to accept that it set out correctly what the triage nurse was told either by Mr. Geoffrey Sandford or by his mother. As such, it seems to me that it amounts to the best evidence of how Mrs. Sandford came to fall. Consequently I find that she fell whilst getting out of bed.

[54]Mr. Sowersby submitted that that conclusion, if I reached it, did not, of itself, mean that the claim had to fail, because there was evidence that, if cot-sides had been provided, Mrs. Sandford would in fact have been incapable of having overcome them to escape from her bed, had she sought to do so. Logically, of course, Mr. Sowersby was correct, if I accepted the evidence that Mrs. Sandford would have been incapable of getting out of her bed over cot-sides.

[55]It was therefore necessary to consider the evidence as to what in fact Mrs. Sandford was able to do as at 21 April 2003 relevant to her ability to get out of bed over cot-sides. An aspect of that was plainly what sort of obstacle the cot-sides would have represented.

[56]There was no satisfactory evidence of the nature of the cot-sides. No cot-side was produced in court. No photograph or diagram of a cot-side was put in evidence. There was no verbal description of a cot-side in any witness statement. The only evidence of what sort of a thing a cot-side was and what sort of an obstacle to the movement of Mrs. Sandford it would have represented as at 21 April 2003 was elicited from Mr. Geoffrey Sandford in re-examination. He was asked to describe the cot-sides which were delivered on 24 April 2003, but which were never used. He told me that a cot-side was the length of a bed, stood some 12 inches high, had some sort of padding on the inner side and was adjusted to permit someone in bed to get out. I was not clear from his account how a cot-side was secured, but I imagine that the part which Mr. Sandford told me stood 12 inches high stood proud of the surface of the bed by that amount. Unsurprisingly Mr. Sandford told me that his mother would not, in his opinion, have been able to get out of bed on her own if a cot-side had been in place. Her bed, he told me, was placed against the wall on one side, so that in fact only one cot-side needed to be fitted.

[57]There was a certain amount of contemporaneous documentary evidence as to the abilities of Mrs. Sandford as at about 21 April 2003. A person not identified during the trial spoke on the telephone to Mr. Richard Boateng of the Social Services Department of the Council on 4 February 2002 concerning Mrs. Sandford. A standard form used by the Social Services Department to record the needs of persons with disabilities was completed by Mr. Boateng. Mr. Geoffrey Sandford was asked about the information recorded on the form. He contended that someone from the Social Services Department must have telephoned his mother. I think the suggestion was that his mother had been caught off-guard and had conveyed information which was not accurate. However, it was plain from the face of the form that Mr. Sandford could not possibly be right about that. Question 5 was, “Are you able to speak to us using the telephone?” The answer recorded was “No. Incoherent can’t communicate”. Clearly whoever spoke to Mr. Boateng was someone acting on behalf of Mrs. Sandford, not her herself. Moreover, a telephone number was recorded on the form, and a note made, “Carer available on the contact number to respond to phone calls”. As completed, the form recorded that Mrs. Sandford was deaf and blind, that she needed help with getting to the toilet, getting on and off the toilet, getting to bed, getting in and out of bed, using a wheelchair, getting up from a chair, cooking, and dressing/undressing. All of this information was recorded in answering tick boxes. It was also recorded, in a space left for specific information, that Mrs. Sandford used a Zimmer frame whilst walking and that it had to be guided on account of her sight problem. A question asked, “Tell us about the main difficulties you are experiencing and how you think we can help”. The specific answer recorded was:- “Difficult to get on and off from the toilet. Toilet seat is too low and requesting for it to be raised. There is the possibility of Lydia falling over when using the toilet. Difficulties with toilet transfer.”

[58]Apart from the suggestion that Mrs. Sandford had been caught off-guard when giving the information recorded by Mr. Boateng, I did not understand Mr. Geoffrey Sandford to dispute the accuracy of any of what was recorded, apart from the reference to the use of the Zimmer frame. He appeared, however, to suggest that the condition of his mother in February 2002 was the result of some misdiagnosis of her medical condition and the prescribing of inappropriate medication which produced the problems recorded.

[59]A copy of the visit report form completed in manuscript by Ms. Peach on the occasion of her visit on 26 February 2003 was put in evidence. In a section of the form entitled, “Medical conditions reported by client”, she noted, “Multiple CVA, Partially sighted, Hard of hearing”. In a section of the form entitled “Physical effect” she wrote, “mobilises with ZF [Zimmer frame] / assist – 1, diff – WC transfers, bed, stairlift insitu”. Mr. Geoffrey Sandford accepted that at the date of the visit his mother did have a stairlift in the House. He did not suggest, other than by what I have quoted from paragraph 3 of his first witness statement, that his mother did not have difficulties with transfers to the lavatory and to bed. However, he vigorously denied that his mother ever used a Zimmer frame before her fall. His evidence on that point was supported by that of his sisters, Mrs. Maureen Scherer, Mrs. Gillian Pearson, and Mrs. Sylvia Burchett, and by his brother, Mr. David Sandford. The effect of the evidence of Mrs. Pearson in cross-examination was that Mrs. Sandford moved around the House being guided by pieces of furniture or hand rails or the assistance of one of her children. While it seems curious that Ms. Peach, whose function was to assess what aids and equipment Mrs. Sandford needed, should have been in error in recording that she used a Zimmer frame, I accept, in the light of the evidence of Mr. Geoffrey Sandford’s siblings, that Ms. Peach was mistaken about that. I accept the evidence of Mrs. Pearson as to how her mother was able to move about.

[60]It was not in dispute that Mrs. Sandford’s children provided her with care 24 hours per day from about October 2002. I think that it was also not in dispute that from that time her condition continued to deteriorate.

[61]The contemporaneous written evidence and the facts not in dispute seem to me to show that Mr. Geoffrey Sandford overstated his mother’s abilities prior to her fall in paragraph 3 of his first witness statement in suggesting that her only real problem was in relation to cooking. However, as to whether she would have been able to get out of bed on 21 April 2003, if a cot-side had been fitted, there seems to me to be no reliable evidence. For the reasons which I have given I do not feel able to accept the opinion of Mr. Geoffrey Sandford on the point. If Mrs. Sandford had been as spry as he would have it in paragraph 3 of his first witness statement, she might well have been able to get out of bed with a cot-side fitted. Even taking the more pessimistic view I do of the abilities of Mrs. Sandford as at 21 April 2003, it is not obvious that she would not have been able to get out of bed despite a cot-side being fitted.

[62]On 13 October 2004 Mr. Howard Smith, a consultant orthopaedic surgeon, saw Mrs. Sandford for the purposes of preparing a report (“the Smith Report”) on her condition. In the Smith Report Mr. Smith commented, “I have not seen any General Practitioner’s records and these are likely to be particularly helpful in giving an indication of her pre-accident condition”. I feel in exactly the same position, namely of lacking the evidence to make an accurate assessment of Mrs. Sandford’s pre-accident abilities.

[63]In the result, I accept the submissions of Mr. Warnock that it was for the claimants to prove, on the balance of probability, that Mrs. Sandford would not have sustained injury if a cot-side had been fitted to her bed on 21 April 2003, and that they have failed to do so. Whether Mrs. Sandford would in any event have required accommodation in a nursing home, and, if so, when?

[64]The evidence which was put before me in relation to the ability of Mrs. Sandford to have continued to have lived in her own home, supported by members of her family, but for her fall on 21 April 2003, was not very satisfactory.

[65]I have identified the members of the family who gave evidence before me. Of those, Mr. David Sandford, because of his own personal circumstances, was not much involved in caring for his mother. The others told me of what they had done for their mother before her fall and of their desires and intentions to continue to look after her for as long as possible. I pay tribute to the sterling work which they all undertook in looking after their mother. I have no doubt that they wished to continue to look after her as long as was feasible. I recognise that each felt keenly the promise which he or she had given to Mrs. Sandford to look after her. However, the question is, but for the fall, for how long would it have been practical for family members to have continued to care for Mrs. Sandford in the House.

[66]One obvious question was why, given that they all wanted to continue to look after their mother in the House, members of the family did not do so once she was fit for discharge in November 2003.

[67]Mr. Geoffrey Sandford told me in cross-examination that the reason his mother was not discharged home from hospital was that the Social Services Department of the Council refused to permit it. A more dispassionate account was given by Mrs. Burchett, namely that representatives of the Social Services Department and staff in the hospital advised strongly against it on the grounds that the family could not give Mrs. Sandford the care she deserved. It appears that the family accepted that advice.

[68]The suggestion on the part of the claimants then had to be either that the advice given that Mrs. Sandford should be discharged to a nursing home was not good advice or that, but for the fall on 21 April 2003, family members would have been able to continue to look after Mrs. Sandford in the House. Mr. Geoffrey Sandford’s view seemed to be that the advice given by the Social Services Department was not good advice. However, it seemed that the other members of the family who gave evidence did not adopt such an extreme position. The real issues seemed to be whether, but for the fall, it would have been necessary for Mrs. Sandford to have entered the Nursing Home when she did, and, if not, when, on the balance of probability, it would have been necessary for her to enter the Nursing Home.

[69]At the trial it was accepted that it would have been necessary for Mrs. Sandford to have entered the Nursing Home in any event on 1 June 2006 as a result of the deterioration in her condition by that date.

[70]On behalf of the Council, Mr. Warnock relied, in support of his submission that, even without the fall on 21 April 2003, Mrs. Sandford would have had to have entered the Nursing Home on 17 November 2003, on the evidence of Dr. W.J.K. Cumming, a consultant neurologist who never examined Mrs. Sandford. Dr. Cumming was consulted after the death of Mrs. Sandford on the question whether the supposed stroke which Mrs. Sandford had sustained in May 2003 was a consequence of the fall on 21 April 2003. Dr. Cumming considered the medical notes only and reached the conclusions that in fact Mrs. Sandford had not sustained a stroke and that the cause of the deterioration in her sight noted in May 2003 was not a stroke, but something else. He did not suggest an alternative cause. Subsequently he was asked a question on behalf of the Council about admission to a nursing home. He set out the question and his answer in a letter dated 21 January 2008:- “3. On the balance of probabilities, given the state of the Claimant’s vision in November 2003, do you consider that in the absence of orthopaedic symptoms the Claimant would have been admitted to a nursing home prior to November 2003 in any event? If not by November 2003, when? As noted in my letter of 2007, there is no neurological reason why Mrs. Sandford could not have returned home. It is clear that the family felt that they could no longer care for her (my report 16.11.2006, paragraph 5.36). It is inevitable, however, that with the progressive loss of vision, it would have been necessary for her to be cared for in residential accommodation. I would, however, defer to the views of an Ophthalmologist in that regard.”

[71]In his Claimants’ Further Skeleton Argument at paragraph 22 Mr. Sowersby commented on this evidence of Dr. Cumming:- “In stating that with progressive deterioration in her eyesight LS would have to have gone into a home at some point Dr. Cummings [sic] strays considerably outside his field of expertise (and indeed into the realms of findings of fact). Further, he does not venture a guess as to at what point that might have occurred. Finally, he ignores the evidence of LS’ family that her increasing blindness was of little significance within her own home (her family were already cooking her meals before the accident occurred, because they did not consider her eyesight up to the task …; and she knew the layout of her home so well that it was of little significance to her in terms of her mobility … ”

[72]Notwithstanding his criticism of the ability of Dr. Cumming, a neurologist, to express a view as to the implications of the increasing deterioration in the ability of Mrs. Sandford to see, Mr. Sowersby did invite me to consider an opinion expressed by Mr. Smith, a consultant orthopaedic surgeon, on more or less the same point. In a letter dated 8 April 2008 to Mr. Smith the solicitors acting for the executors of Mrs. Sandford requested that he, “confirm for the avoidance of doubt what appears to be your view that, on the balance of probabilities, absent the accident injury, Mrs. Sandford would not have had to go into a home.” In a letter dated 17 April 2008 Mr. Smith wrote:- “This is to confirm my opinion that, on the balance of probabilities, in the absence of the index incident it is unlikely that Mrs. Sandford would have had to go into a nursing home at the time she did. I see no reason why she would not have been able to continue in her own home under the care of her family and Social Services as had been the case for some time prior to her accident.”

[73]With all respect to them, the countervailing views of Dr. Cumming and Mr. Smith did not seem to assist very much in reaching any conclusion as to whether Mrs. Sandford would have been able to have continued living at the House with the support of her family after 17 November 2003, but for her fall.

[74]There was put in evidence a copy of a Patient Transfer Note completed by a doctor at Whipps Cross Hospital in respect of Mrs. Sandford at the time of her discharge. As completed, that document noted the condition of Mrs. Sandford as “prone to UTI [urinary tract infection] poor vision, poor mobility, is occasionally incontinent of urine.” As to her requirements for assistance, it was recorded that, “she needs assistance of x1 with personal hygiene, she eats soft diet, sometimes needs assistance with feeding, she can walk with a frame and supervision x1, needs cot sides on bed as she had previous falls out of bed”.

[75]Another document generated at the time of the discharge of Mrs. Sandford was a Notification of Discharge or Transfer completed by Dr. Brian Rossiter and dated 10 December 2003. That document, as completed, included a note that Mrs. Sandford suffered from chronic cognitive impairment in respect of which the comment was made that, “Evidence of widespread small vessel disease/atrophy on CT brain scan; not helped by her visual impairment and deafness; achieved 3/10 on formal testing”. In a section entitled “Functional” Dr. Rossiter wrote, “Able at times to transfer unaided and to walk with rollator frame – not predictable enough for consideration for ordinary residential care, hence awaiting Nursing Home placement”. Mr. Geoffrey Sandford was asked about the assessment in that document. He told me that he considered that it was erroneous and that Dr. Rossiter had looked at the wrong part of his file in preparing the document.

[76]Subsequently Dr. Rossiter was asked to give an account of Mrs. Sandford and her circumstances to the insurers of the Council. In a letter dated 30 September 2004 he wrote, inter alia:- “Prior to her hospital admission, she had had a previous history of hypertension, transient cerebral ischaemic episodes and a degree of cognitive impairment. The latter had been further complicated by visual and hearing difficulties. She had also suffered recurrent urinary tract infections which sometimes would further exacerbate her cognitive problems, manifesting as night time agitation. She had been receiving excellent family support at home – her children operated a rota to provide support. She also received social services support. Her several stroke risk factors were managed – she was started on a statin and her dose of Aspirin was increased to 150 mg daily. Her hypertension became controlled on Bendrofluazide. Despite the intensive approach adopted by the rehabilitation multidisciplinary team, we were unable to secure a level of independence that would enable Mrs. Sandford to return to her own home, even with maximum support. Although at times she was able to stand up from a chair and to walk using a frame, this degree of independence was not secure or reliable enough. Sadly, it was not reliable enough for placement in a residential home but it was felt that her needs would best be met within a nursing home. It is clear that this lady was experiencing difficulties at home prior to her admission. She had many risk factors for stroke as outlined above. The stroke occurred some weeks after her successful hip repair. There is no doubt that the morbidity of hip fracture is very serious for someone in their 90s. One cannot say with confidence that there was a causative link with her fracture and her stroke. It is equally very difficult for me to gauge the effect of her fracture on her level of independence prior to her hospital admission and that as assessed by us after her stroke.”

[77]The Smith Report contained the following passages relevant to the effect of the fracture of her right femur on Mrs. Sandford:- “2. SUMMARY OF CONCLUSIONS Mrs. Sandford was considerably disabled prior to the material incident. The exact details of her condition are difficult to ascertain but considerable input was required both from Social Services and her family in order for her to remain in her own home. The fracture of her femur was a significant event and perhaps the main event in her losing this limited independence. Other important factors are her severely impaired vision and cerebrovascular disease. … 4. PRESENT CONDITION She is now more or less blind, or at least her vision is very poor. She says that she can see shadows and people moving in front of her. Her lack of vision makes it difficult for her to feed herself. Prior to losing her vision watching television was one of her main enjoyments and this she is no longer able to do. It seems that the hip fracture is well healed and she says it causes her no pain. However, she is no longer able to walk more than two or three yards using a Zimmer frame and a good deal of help. She has possibly suffered some urinary incontinence recently. … 5. SOCIAL HISTORY Prior to her accident she would enjoy knitting and watching television, neither of which activity she is now able to do. She is more or less totally dependent on others and uses a wheelchair for mobility. Her family feel that there is no reason to suppose that had she not had the fall they would not have been able to continue to look after her. 6. ON EXAMINATION Throughout the interview she sat in her wheelchair. She seemed to be well-orientated. She would respond appropriately to questions when they were put to her. It was apparent that her vision was extremely poor. With the help of a Zimmer frame and one other person she was able to get up but she could manage to walk for only a couple of yards before requesting to sit down again. … 9. OPINION AND PROGNOSIS This lady sustained a fracture of the proximal end of her right femur as the result of falling out of bed. The injury would be consistent with such an incident. The fracture was treated in the conventional manner and appears to have done well. On clinical grounds the fracture is soundly united and Mrs. Sandford retains a good range of movement in the hip joint. It is a common type of injury in the elderly. The outcome after it varies considerably. Some patients make a full recovery and return to their pre-injury state. In many patients however and especially those living on the border line of independence it is, as it were, the final straw. Although the fracture per se may do well the incident overall has serious ill-effects in as much as robbing patients of their mobility and independence, and in my view this injury has considerable importance in the loss of this lady’s limited independence. Prior to the incident she was able to walk independently in her own home although her condition required a good deal of carer input. The other main factor in her present situation is the loss of vision. There is evidence from the records that her vision was poor at least a year prior to the material incident. Certainly when I saw her, her vision appeared to be extremely poor although as this is not really my field of expertise I did no specific tests of her eyesight. The hospital records suggest that perhaps she suffered a number of transient ischaemic attacks rather than a single cerebrovascular episode, though a CT scan appears to have demonstrated a cerebral infarct. Again this is not within my field of expertise but it seems to me unlikely that the cerebrovascular episodes have any relation to her deteriorating eyesight. Whether these episodes can be regarded as a complication of her fracture I am not really able to answer. It is known that she has suffered cerebrovascular disease for at least four or five years and it seems that she was at risk of such an episode occurring, but this is an area outside my field of expertise and I would recommend that you seek a report from a consultant in geriatric medicine. Had the accident not occurred it seems reasonable to suppose that Mrs. Sandford could have continued under the care of her family etc. in her own home at least for some further period of time. Maybe the cerebrovascular episodes that happened in May 2003 would have happened in any case but this on its own may not have made it necessary for her to be admitted to a nursing home. Again the opinion of a consultant geriatrician would be helpful on this point. In summary therefore I think that the fracture of her femur has played a considerable part in the development of her present situation, possibly the major part, but it is not the only factor involved.”

[78]The views of Mr. Smith expressed in the Smith Report were not challenged on behalf of the Council and I am content to accept them. However, doing that only leads me to the point that in all probability, but for her fall, Mrs. Sandford would not have had to have entered the Nursing Home on 17 November 2003. Mr. Smith did not feel able to say when Mrs. Sandford would otherwise have been likely to have entered the Nursing Home. He suggested that advice be sought from a consultant geriatrician. That step was not taken.

[79]Mr. Warnock submitted, rightly as it seems to me, that it was for the claimants to prove, on the balance of probability, the element of damage said to have been incurred as a result of Mrs. Sandford being required to contribute to the cost of her accommodation in the Nursing Home. That could only be done by the adducing of evidence as to when, on the balance of probability, Mrs. Sandford would have entered the Nursing Home, but for her fall. There was, effectively, no such evidence. Such reasonably contemporaneous evidence as there was noted various conditions affecting the ability of Mrs. Sandford to continue to live in the House with the support of members of her family. I do not accept that, but for the fall, she would have been able to continue to live in the House until 1 June 2006. The acceptance on the part of the claimants that she would have been obliged to enter the Nursing Home at that date was really a concession supported by little evidence. Such evidence as there was was to the effect that by 1 June 2006 she seemed to have given up the struggle of life and had ceased eating. The evidence suggests that the date at which her family would have been unable to provide effective support for her living in the House would have been considerably earlier than that, without enabling me to reach any definite conclusion as to a particular date.

[80]In the result the claim for damages in respect of the cost of contributions by Mrs. Sandford towards the fees paid for accommodation in the Nursing Home would have failed in any event for want of proof.

Conclusion

[81]For the reasons which I have given, this action fails and is dismissed.

Cited in 1 later judgment

Murdoch v Department for Work and Pensions 2010