Child Abuse and Scope of Duty of Medical Practitioners
Conway v Yeovil District Hospitals NHS Foundation Trust & Anor [2025] EWHC 2488 (KB)
In this sad case, Turner J considered the scope of duty of hospital doctors towards a baby who was the victim of an assault perpetrated by his mother after his discharge from hospital.
Facts
The Claimant was born in November 2014 and was a happy and healthy child. On or around New Years’ Eve 2014 he was assaulted by his mother. No one knew about or suspected the assault.
On 6 January 2015 the Claimant was admitted to the District General hospital with vomiting, poor weight gain, poor head and neck control, irritability and an increase in percentile of head circumference measurements over the last few weeks.
The clinicians suspected pyloric stenosis, a gastrointestinal condition, but, following transfer to a Children’s Hospital on 9 January, an abdominal ultrasound scan (USS) was carried out and showed no evidence of the condition and all of the Claimant’s symptoms had resolved save for the increase in head measurements. He was therefore discharged on 10 January with the intention that his health visitor would keep an eye on his head measurements.
On 11 January the Claimant was assaulted by his mother, suffering catastrophic brain injuries which led to significant disability.
The Claimant’s case
The Claimant’s case initially was that the head USS should have been carried out before the Claimant was discharged on 9 January. Had it been, it would have been apparent that he had traumatic injuries. This would have led to a chain of enquiry which would have deprived his mother of the opportunity to assault him a second time. It was not contested that all his injuries resulted from the attack.
However subsequently the Claimant’s expert modified his view, stating that the head USS should have been carried out “very soon” after the abdominal USS on 9 January, and conceded at trial that it would have been acceptable for the Claimant to have been discharged and for the head USS to have been carried out on 12 January, i.e. after the second assault which caused the injuries. The claim therefore failed on causation.
Scope of duty
Given the concessions by the Claimant’s expert and that there was no evidence at the time to suggest that the Claimant was at risk from his mother, the judge raised the issue of the scope of the clinicians’ duty towards the Claimant, as per the decision of Meadows v Khan [2022] AC 852
Turner J set out at §37 the six questions which the Supreme Court set out in Meadows for analysing the scope of duty [emphasis added]:
(1) Was the harm (loss, injury and damage) which was the subject matter of the claim actionable in negligence? (the actionability question).
(2) What were the risks of harm to the claimant against which the law imposed on the defendant a duty to take care? (the scope of duty question).
(3) Did the defendant breach his or her duty by his or her act or omission? (the breach question).
(4) Was the loss for which the claimant sought damages the consequence of the defendant’s act or omission? (the factual causation question).
(5) Was there a sufficient nexus between a particular element of the harm for which the claimant sought damages and the subject matter of the defendant’s duty of care? (the duty nexus question).
(6) Was a particular element of the harm for which the claimant sought damages irrecoverable because it was too remote, or because there was a different effective cause (including novus actus interveniens) in relation to it or because the claimant had mitigated his or her loss or had failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question).
There was no dispute that the harm suffered by the Claimant was actionable (question 1).
Turner J noted that some of the questions, particularly 2 and 5, could be considered together in appropriate cases, §38. He stated (emphasis added):
Comment
This case is an interesting example of the application of the principles set out in Meadows. The instinct of most clinical negligence practitioners would probably have been to analyse the case as turning on causation, as seemingly advocated by the Defendant. Analysed this way, the Claimant’s case was that the Defendant’s duty was to diagnose and treat the Claimant, in fulfilment of this duty the Defendant should have organised a head USS ‘very soon’ after the abdominal USS, had that been done, the head USS would have set off a chain of events which would have meant that the second assault was never able to occur. The Defendant’s case was that, quite simply, on the evidence of the Claimant’s own expert, it would have been acceptable for the head USS to take place after the assault which caused the injuries and so the claim failed.
As to question 2 of Meadows, it could be argued that the Claimant was not seeking to establish that the Defendant’s duty extended to protecting the Claimant from abuse by his mother but rather that, had the Defendant fulfilled its (uncontroversial) duty to diagnose the Claimant, the facts would not have unfolded in the way that they did.
However, it appears that key to the judge’s analysis was question 5 taken with question 2 – whether there was a sufficient nexus between a particular element of the harm for which the claimant sought damages and the subject matter of the defendant’s duty of care, the ‘duty nexus’ question.
As an illustration, to take the judge’s example at §43, if in the days after the discharge the Claimant had been in a car accident, would it have been possible to bring proceedings against the Defendant on the basis that, had the head USS been done, the Claimant would have been admitted and would have avoided being in a car and therefore would have avoided the car accident? Although ‘but for’ causation would be satisfied, the answer must be no because of the lack of nexus between the harm for which damages are sought (injury in a car accident) and the subject matter of the Defendant’s duty of care (to diagnose and treat the Claimant).
In the present case, the Claimant was seeking damages for the harm caused by the mother’s assault on him, but the subject matter of the Defendant’s duty of care was essentially to diagnose and treat the Claimant. It could be argued that the facts could be distinguished from the car accident example, in that the reason why the Claimant was in hospital in the first place was due to the injuries caused by his mother and the purpose of the head USS would have been to diagnose the consequences of the abuse which, eventually, re-occurred, leading to the Claimant suffering injury. Contrary to the car accident example, it may be arguable that there is a nexus between the abuse which led to the Claimant’s injuries and the alleged breach of duty (because had the breach not occurred, the first assault would have been discovered and the second assault avoided).
It is unclear from the judge’s decision whether, had the Claimant been able to make out their case on breach and causation, he nevertheless would have found that the claim failed on the basis of scope of duty. The author’s view is that, in that scenario, the judge would have had to consider the extent of clinicians’ safeguarding duties carefully but it is likely that had the Claimant succeeded in establishing both (i) that a head USS should have been done prior to the second assault and (ii) that a head USS would have shown traumatic injury then the clinicians would have been under a duty to safeguard the Claimant from further injury. Accordingly, the possession of this additional knowledge would have led to a widening of the scope of the clinicians’ duty. On the facts of Conway, however, there was no evidence before the clinicians to suggest that the Claimant was at risk and, as such, “the scope of the duty of care of a defendant is not readily susceptible to retrospective expansion on the existence of facts which that defendant neither knew nor ought reasonably to have suspected at the relevant time” §42.
Overall, whether analysed as a matter of causation or scope of duty, the change in view by the Claimant’s expert was fatal to the claim.
Jeremy Hyam KC of 1COR appeared for the Defendant. He did not contribute to this article.
