Judgments - Savage (Respondent) v South Essex Partnership NHS Foundation Trust (

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Judgments - Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate)

HOUSE OF LORDS

SESSION 2008-09

[2008] UKHL 74

on appeal from:[2007] EWCA Civ 1375

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellants)

Appellate Committee

Lord of Foscote

Lord Rodger of Earlsferry

Lord of Gestingthorpe

Baroness Hale of Richmond

Lord Neuberger

Counsel

Appellants:

Faulks QC

Angus McCullough

(Instructed by Bevan Brittan LLP)

Respondent:

Philip Havers QC

Jenni s

(Instructed by Bindmans LLP)

First Interveners

Second Interveners

Bhatt

Dinah Rose QC

Hermer

Bowen

(Instructed by Inquest, Justice, Liberty and Mind)

Department of Health

Nigel Giffin QC

Cecilia Ivimy

(Instructed bySecretary of State for Health)

Hearing dates:

27 and 28 OCTOBER 2008

ON

WEDNESDAY 10 DECEMBER 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellants)

[2008] UKHL 74

LORD SCOTT OF FOSCOTE

My Lords,

1. I have had the advantage of reading in draft the opinions on this appeal of my noble and learned friends Lord Rodger of Earlsferry and Baroness Hale of Richmond and am in full agreement that, for the reasons they give, this appeal should be dismissed. There are two matters, however, on which I want to add a few words of my own. In doing so I gratefully adopt and need not repeat Baroness Hales outline of the facts and of the relevant legislative background to the issues.

2. The first matter on which I want to comment is the locus standi of the respondent, the adult daughter of Mrs Savage, the deceased, to have instituted the action that has led to this appeal. Following Mrs Savages self-inflicted death, an inquest was held into the causes and circumstances of her death. The inquest was held in public, the investigation by the coroner into the circumstances and causes of the death was a full one - no one has suggested that it was in any respect inadequate - and the coroners and the coroners jurys conclusions were made public. It is accepted that these conclusions do not warrant the commencement of criminal proceedings against anyone. The jury concluded that

the precautions in place [at Runwell Hospital] on 5 July 2005 to prevent Mrs Savage from absconding were inadequate

and thereby exposed publicly the potential liability of the Hospital and its staff to the compensation remedies available in a civil court under ordinary domestic law.

3. There are two remedies under the ordinary domestic law which, following the inquest, could have been sought from the Hospital and its staff. The Hospital and its staff would, of course, have owed Mrs Savage the common law duty of care, a duty inherently flexible that imposes a standard of care dependant on the circumstances of each individual case. The jurys verdict at the inquest would have justified the commencement of an action in negligence on behalf of Mrs Savages estate, pursuant to the Law Reform (Miscellaneous Provisions) Act 1934, to recover damages for any pain and suffering caused to Mrs Savage by the Hospitals failure to accord her the standard of care that it owed, assuming, of course, that that failure could be established in the action. The jurys verdict would have justified, also, the institution of an action under the Fatal Accidents Act 1976 on behalf of any dependants of Mrs Savage who had suffered financial loss on account of her death. Either or both of these actions, to which the NHS Trust would have been the defendant, would, if successful, have established in a court of law that the care taken of Mrs Savage at Runwell Hospital had fallen below the standard to which she had been entitled under ordinary domestic law. But her husband, Mr Savage, who, as the person presumably entitled to her estate, could have instituted an action under the 1934 Act and who may also have been a dependant of his wife for the purposes of the 1976 Act, was not willing to institute either action