Law Report: 1 April 1998: Doctor owed no duty of care to job applicant

Law Report: Kapfunde v Abbey National plc and another

Kapfunde v Abbey National plc and another; Court of Appeal (Lord Justice Kennedy, Lord Justice Millett and Lord Justice Hutchison) 26 March 1998

A DOCTOR retained by an employer as an occupational health adviser was not liable in negligence to a job applicant who was refused employment as a result of advice, based on her medical history, given to the employer by the doctor.

The Court of Appeal dismissed the appellant's appeal against a decision dismissing her claim for damages against Abbey National plc and Dr Daniel.

The appellant had applied to Abbey National for a post as a cashier. She was asked to complete the company's standard confidential medical questionnaire, in which she stated she had been absent from work for just over a month in the previous year with "sickle cell anaemia and chest infection". She also ticked a box to indicate she had at some time suffered from asthma/bronchitis.

The main symptoms of sickle cell anaemia, which is most common in people of African or West Indian descent, are episodes of anaemia, pain or infection, called crises. According to a guide for general practitioners and other health professionals:

Some people get crises quite often, others may only have them once every several years. In between crises the person is usually quite well.

The completed questionnaire was referred to Dr Daniel, a general practitioner who worked part time as occupational health adviser to Abbey National. In Dr Daniel's opinion the appellant's medical history indicated that she was likely to have a higher than average absence level, and was thus not suitable for employment. Abbey National refused to employ the appellant, who claimed damages against Abbey National and Dr Daniel in negligence.

Timothy Raggatt QC and Richard Wilson (Makand & Co) for the appellant; John Jarvis QC and Anne Wakefield (Abbey National Legal Services) for Abbey National; Robert Seabrook QC and Akhlaq Choudhury (Le Brasseur J. Tickle) for Dr Daniel.

Lord Justice Kennedy said that the case for the appellant was that Dr Daniel was a servant of Abbey National; that when the questionnaire had been referred to her she had, in the circumstances, owed the appellant a duty of care; that she had been in breach of that duty; and that Abbey National was vicariously liable for her negligence, so that both repondents were answerable to the appellant.

The judge had found that Abbey National was not vicariously liable for Dr Daniel's actions. He had clearly directed himself correctly as to the law, and there was no reason to interfere with his conclusion.

The kernel of the dispute in relation to the existence of a duty of care owed by Dr Daniel to the appellant concerned proximity, assumption of responsibility and the allegation that it was fair and reasonable for such a duty to be imposed. A decision which at first sight seemed to be of great assistance to the appellant was White v Jones [1995] 2 AC 207 in which a solicitor had been held to be liable to proposed beneficiaries after neglecting to comply with instructions to make a new will including legacies to them.

However, Lord Browne-Wilkinson had made it clear in X v Bedfordshire County Council [1995] AC 633 that the incremental increase in the categories of negligence made by the decision in White v Jones was a small one, only sufficient to cover the facts of that case.

In X v Bedfordshire County Council, social workers and psychiatrists who had been retained by a local authority to interview and examine children in cases of suspected child abuse had been held not to have assumed any general professional duty of care to the children, since they had been retained to advise the local authority, not to the children. The position of Dr Daniel was plainly comparable.

In Baker v Kaye (1997) IRLR 219 a claim for damages against a doctor who had made a pre-employment assessment of a plaintiff was dismissed on the ground that although the doctor had owed the plaintiff a duty of care, there had been no breach of that duty. Whilst that conclusion was right, it should also have been based on a finding that there was no duty of care.

Kate O'Hanlon, Barrister