Kapfunde v Abbey National and Daniel [1998] IRLR 583 (CA)

Does a doctor engaged by a company to carry out medical assessments on potential employees owe a duty of care to the person they are assessing? In a surprising decision, the Court of Appeal says no.

Mrs Kapfunde was employed on a temporary contract by Abbey National and applied for a permanent post as a cashier. When she filled in her application form, she revealed details about her medical history including that she was a sickle cell anaemia sufferer which in the past had led her to being absent from work.

The company retained a general practitioner, Dr. Daniel who provided medical services including pre-employment assessments. Dr. Daniel's assessment was that Mrs Kapfunde was likely to have a higher than average level of absence. The company decided not to employ her.

She started a civil action for damages in the County Court against Abbey National and Dr. Daniel claiming negligence and consequently damages for the economic loss which she suffered as a result of not getting the job. She argued that the doctor owed her a duty of care in relation to the information she had provided concerning her sickness record. She argued that the doctor over-assessed the risk of her being off work due to illness related to sickle cell.

The doctor had failed to discharge her duty of care competently and, as a servant of Abbey National, they were vicariously liable for her negligence. The County Court judge dismissed the claim against both Defendants.

The case was appealed arguing that (1) Dr. Daniel did owe a duty of care because it was reasonably foreseeable that if the doctor negligently over-assessed the risk of her having a higher than average level of absence from work the company would still accept and act upon that assessment. As a result she would suffer economic loss and (2) in the circumstances Dr. Daniel did assume responsibility in a relationship which was of sufficient proximity to give rise to liability and (3) it was fair, just and reasonable in the circumstances for the court to impose a legal duty of care.

Regrettably the Court of Appeal dismissed the appeal. They agreed with the County Court Judge that the doctor did not owe a duty of care to Mrs Kapfunde when she carried out the assessment.

They emphasised that there was no duty of care because the fact that a persons actions were likely to cause damage to another if there was failure to take due care was not sufficient by itself to create that duty of care. In this instance, there is insufficient proximity between Mrs Kapfunde and the doctor. It was the employers to whom the doctor owed a duty of care.

Whilst this decision is of concern, cases such as these may now fall foul of the Disability Discrimination Act. This case arose before the act came into force.

Paragraph 5.5 of the Code issued alongside the Disability Discrimination Act states that an employer can stipulate essential health requirements. But the employer may need to justify doing so, and to show that it would not be reasonable for him to have to waive them in any individual case.

This means that an employer should always consider whether suitable adjustments can be made to facilitate the individual's employment.