he attended Dr Kaye’s office for the pre‐employment assessment, in the course of which a blood sample was taken. When Dr Kaye received the results of the test, he considered that there was evidence of over‐indulgence in alcohol. He telephoned the company to ask about the nature of the job, and was told that it was stressful, involving a high degree of responsibility, a great deal of business entertaining and frequent trips abroad. Dr Kaye knew that the company was intolerant of heavy drinking. He arranged to see Mr Baker again and asked about his alcohol consumption. Mr Baker admitted to having drunk slightly more than usual when he was in Monte Carlo. Dr Kaye took a second sample of blood and advised him to consult his GP, who recommended that he abstain from alcohol for several days, after which she would repeat the tests. Meanwhile, Mr Baker, not anticipating any serious problems, resigned from his previous job.
When Dr Kaye received the results of the second test he concluded that Mr Baker had an alcohol problem. He discussed the results with a medical colleague, a consultant gastroenterologist, and with GE’s former Medical Officer, both of whom agreed with him. He informed the company that he was unable to recommend Mr Baker (though not, of course, giving the reason) and told Mr Baker of what he had done, and why. Mr Baker did not get the job. Tests taken by his GP after a short period of abstinence showed substantial improvement and after two weeks were within normal limits. A month later Professor McIntyre, a consultant physician, examined Mr Baker and advised that there was no evidence of liver damage.
Mr Baker was now in the position that he had unconditionally resigned from his previous job and had not been appointed to the new one, since the offer of employment had been conditional on the satisfactory report of the OH physician. He sued the physician for negligence, claiming damages for loss of the GE post. The case raised the question of whether a medical practitioner retained by an employer to carry out pre‐employment medical assessments of prospective employees owes a duty of care to the prospective employee. It was held that he does. Three features of the relationship were considered of particular importance. The first was that the defendant knew that the plaintiff’s employment depended on the assessment, the second that he regarded himself as under a duty of confidentiality towards the patient, and the third that the defendant regarded himself as under a duty to the plaintiff to advise him to seek medical advice if any health problems were disclosed by the examination. There was no conflict between the doctor’s duty to the company, and that towards the prospective employee. The duty was to take reasonable care in arriving at a judgment whether or not to recommend the plaintiff for employment, bearing in mind the company’s requirements.
Was Dr Kaye negligent? The plaintiff was supported by the expert evidence of Professor McIntyre and of Dr Cockcroft, a consultant in occupational medicine. The defendant called Sir Anthony Dawson, an independent health care consultant. It was held that, on the facts, Dr Kaye was not negligent. The judge decided that it was not essential to explore the plaintiff’s absenteeism record, because of the high degree of independence enjoyed by senior managers (a more junior employee might be different). He decided that it was not essential to weigh the plaintiff (Mr Baker was ‘clinically corpulent’). He decided that a substantial body of reasonable medical opinion would have arrived at the same conclusions as Dr Kaye about the blood tests. Mr Baker lost the action.
The view that a doctor owes a duty of care to a job applicant, at least as regards physical harm, is supported by the decision of the Court of Appeal in R v. Croydon Health Authority (1997). A radiologist examined a woman who was a job applicant. He negligently failed to report to the OH physician the evidence of primary pulmonary hypertension disclosed by a pre‐employment x‐ray. The court held that there was a duty of care imposed by law on the radiologist to the job applicant in relation to the pre‐employment assessment.
In a subsequent case in 1998, Kapfunde v. Abbey National, the Court of Appeal disagreed with the decision in Baker v. Kaye. Mrs Kapfunde applied for a job with the Abbey National and completed a medical questionnaire disclosing details of her sickness absence record in her previous employment. The questionnaire was reviewed by Dr Daniel, Abbey National’s independent OH physician, who advised that the applicant’s medical history indicated that she was likely to have a higher than average absence level; she suffered from sickle cell anaemia. Mrs Kapfunde, who was not considered for the job, sued the Abbey National as Dr Daniel’s employer, arguing that Dr Daniel was negligent. The court held, first, that Dr Daniel was not an employee but an independent contractor, so that Abbey National could not be vicariously liable for her. Secondly, they decided that in any event Dr Daniel was not negligent, because she had exercised the skill and care to be expected of a reasonably competent OH physician in the circumstances. Dr Daniel never saw Mrs Kapfunde in person; she merely assessed her questionnaire. The case arose before the Disability Discrimination Act came into force. Now, there might be an argument that Mrs Kapfunde was a disabled person under the Equality Act.
The main interest in the judgment lies in the conclusion that Dr Daniel did not owe Mrs Kapfunde a duty of care. The Court of Appeal drew an analogy with the decision of the House of Lords in X v. Bedfordshire County Council (1995), where it was held that the psychiatrists who examined children at the request of the local authority in cases of suspected child abuse owed no duty of care to those children or their parents. In later case law, after an appeal to the European Court of Human Rights, the courts have held that the psychiatrist does owe a duty of care to the child, though not to the parents (JD and Others v. East Berkshire Community Health (2003)). In Poole Borough Council v GN (2019), the Supreme Court overruled the Bedfordshire County Council decision. Thus, the authority of the Kapfunde decision has been weakened. In addition, the harm suffered by the job applicant was economic only: she did not get the job. It is submitted that had there been physical harm, the OH physician could have been liable for a negligent failure to diagnose a physical problem and to warn the job applicant of the need to consult her GP, as in the Croydon case above.
In Hamed v. Mills, Tottenham Hotspur and Cowie (2015), a young football player aged 17 was recruited by Tottenham Hotspur football club. There is a recognised risk to young athletes of sudden death from a congenital heart condition known as hypertrophic cardiomyopathy (HCM), so the football club employer initiated pre‐employment screening. This was done by a consultant cardiologist who reported to the club’s own employed doctor. The cardiologist performed only an echocardiogram and an electrocardiogram which raised suspicions but were never followed through. Hamed and his parents were given no information about the findings. The club’s own doctor also took no action although she was aware of the results of the tests. A year later, Hamed had a heart attack when playing in Belgium and suffered irreversible brain damage. The cardiologist at first denied that he owed the claimant a duty of care at all (presumably relying on Kapfunde) but later withdrew that defence and admitted that he had a duty, that he was in breach of that duty and that his breach contributed to the injury. The judge held that the club’s doctor was also negligent and apportioned liability 30 per cent to the cardiologist and 70 per cent to the club’s doctor (and hence to her employer Tottenham Hotspur which was vicariously liable).
In the United States, liability has been imposed on OH doctors who have negligently failed to diagnose medical conditions. For example, in Green v. Walker (1990), an employee was required to undergo annual health checks. The doctor carried out all the tests, found the results to be normal and classified the employee as fit. A year later the employee was diagnosed with lung cancer. It was held that the doctor owed a duty of care to the employee. This has also been applied to pre‐employment examinations (Betesh v. United States (1974)).
When a doctor conducts a physical examination, the examinee generally assumes that ‘no news is good news’ and relies on the assumption that any serious condition will be revealed.
The general principle is that the duty of care of a health professional in negligence arises when it can be foreseen that a careless act or omission may harm another. There is no duty to assist a stranger, but if the health professional creates a relationship by examining or testing an individual, a duty will arise at least to perform the examination
