Legal Update: Courts rule on duty of care and strict liability in adult care sector

Ed Mitchell looks at compensation claims over the past year

The issue: The results of recent compensation claims reveal the courts’ views on liability in adult services.

Duty of care to protect vulnerable adults

X&Y v Hounslow (May 2008) was a groundbreaking case. The High Court held that a council owed a common law duty of care to protect two adults with learning disabilities whom they knew to be at risk of serious physical harm from exploitative local youths.

The relevance of the existence of a common law duty of care is that, if it is breached through negligence, damages for losses flowing from the breach may be claimed. Here the duty was breached as the council failed to move the adults away from the serious harm that they knew they faced. As a result, they were imprisoned by local youths for a weekend and suffered gross abuse. Damages of about £100,000 were agreed.

No duty of care to provide disability equipment

Sandford v Waltham Forest LBC (May 2008) concerned a 91-year-old woman whom a council had decided needed cot sides fitted to her bed. Before they were fitted she fell out of bed. She was admitted to hospital and then discharged to a nursing home. Her family sued the council arguing that it was liable to pay her nursing home fees because its negligence had led to the nursing home admission.

The High Court held that a council’s failure to comply with its statutory duty to provide domiciliary care services under community care legislation could not amount to breach of a common law duty of care. Without such a duty of care a negligence claim was impossible and the case was dismissed.

No strict liability for defective wheelchair ramp

Smith v Northamptonshire CC (March 2008) was a claim brought under health and safety regulations. In some cases the regulations make an employer “strictly liable” for accidents at work so that it is liable even if it did not act negligently.

This claim arose from a rotten wheelchair ramp which collapsed when a council carer was pushing a client down it. The carer was injured and argued that her employer was strictly liable for the state of the ramp. This was rejected by the Court of Appeal principally because the NHS had installed the ramp and the council had no right to enter the service user’s home to maintain it. Accordingly, any claim by the carer would have to be based on negligence.

No duty of care when taking care standards enforcement action

Jain v Trent HA (Nov 2007) concerned unjustified emergency cancellation of a care home’s registration. The business closed and the proprietor lost thousands of pounds. The Court of Appeal, however, held that the care standards registration authorities owed no duty of care when taking emergency enforcement action. This was because the imposition of such a duty might make the authorities too cautious. The proprietor’s negligence claim was dismissed.

Strict liability for slippery care home floors

The Court of Appeal’s decision in Ellis v Bristol CC (July 2007) should consign to the history books shiny smooth floors in care homes for people with continence problems. It concerned a care home for older people where urine was regularly deposited on corridor floors. A carer slipped and broke her leg. The Court of Appeal held that the home’s proprietor was strictly liable because the floor was inherently unsuitable. As a result, it will have to pay compensation to the carer.

Ed Mitchell is a solicitor, editor of Social Care Law Today and Community Care’s legal expert

The Hounslow case: click here

The Jain case

The Smith case

The Ellis case

First published in the 24 July issue of Community Care

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