This article is a continuation of the article “Private Hospitals Also Liable For Medical Negligence: Federal Court Ruling Analysis (Part I)”.
The Federal Court (FC) has stated that the principle of non-delegable duty is actually “[36] …founded on established concepts rooted in the general principles of the law of negligence itself…An assumption of responsibility gives rise to a positive duty to protect the claimant from harm, and forms the rationale for imposing a more onerous duty of care on the defendant”.
The FC “[55]…noted that the hospitals were nevertheless held to be under a non-delegable duty to patients regardless their status of employment or relationship with the hospital itself”.
In their grounds of judgement, the FC referred to several cases, most of which are mentioned below.
Orbiter dictum
Orbiter dictum is Latin for “other things said”. In a legal setting it means remarks or observations made by a judge that, although included in the court’s judgment, do not form a necessary part of the court’s decision.
It is different from ratio decidendi, which is Latin for “the reason for deciding” which is the reason for the court’s decision and is part of the judgment delivered at the conclusion of a court hearing.
Ratio decidendi is generally binding on lower courts and later judgements, unlike obiter dictum.
The FC referred to Lord Greene MR in Gold v Essex County Council [1942] 2 KB 293, “that once the extent of the obligation assumed by a defendant hospital is discovered, he cannot escape liability because he has employed another, whether as servant or agent to discharge it on his behalf; that the hospital’s duty is not confined to administrative matters, providing proper facilities and selecting competent staff:
“[50]…When a patient seeking free advice and treatment such as that given to the infant appellant knocks at the door of the respondents’ hospital, what is he entitled to expect?”
The FC referred to Lord Denning who in Cassidy v Ministry of Health [1951] 2 KB 343, “departed from the majority in the Court of Appeal who found the hospital liable in a medical negligence suit based on the principle of vicarious liability, and chose to find liability on the principle of non-delegable duty of care:
“[52]…I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for service. (emphasis added)
The FC again referred to Lord Denning who in Roe v Minister of Health [1954] 2 QB 66 revisited the principle of non-delegable duty of care in a case regarding a hospital’s liability for the alleged negligence of a part-time anaesthetist:
“[54]… the hospital authorities are responsible for the whole of their staff, not only for the nurses and doctors, but also for the anaesthetists and the surgeons. It does not matter whether they are permanent or temporary, resident or visiting, wholetime or part-time. The hospital authorities are responsible for all of them. The reason is because, even if they are not servants, they are agents of the hospital to give the treatment. The only exception is the case of consultants or anaesthetists selected and employed by the patient himself.” (emphasis added)
With regard to private hospitals the FC stated that “rationale of any non-delegable duty owed by such hospitals is quite well-put by Lord Dyson LJ in Farraj v King’s Healthcare NHS Trust [2009] EWCA Civ 1203, (2009) 111 BMLR 131, [2010] 1 WLR 2139:
“[49]…the hospital undertakes the care, supervision and control of its patients who are in a special need of care. Patients are a vulnerable class of persons who place themselves in the care and under the control of a hospital and as a result, the hospital assumes a particular responsibility for their well-being and safety”. (emphasis added)
Woodland vs Swimming Teachers Association [2014] AC 537
This was not a medical negligence case.
The plaintiff went for swimming lessons organized by her school. The swimming lessons were conducted by Direct Swimming Services (“DDS”). For some reasons which were not clear at the time the case was heard, the plaintiff ended up hanging head down in the water during the lesson.
Despite resuscitation, she suffered severe brain damage due to hypoxia. The question posed to the United Kingdom Supreme Court (“UKSC”) was whether the school could be held liable for the plaintiff’s injuries on the basis the school owed her a non-delegable duty of care to ensure she did not come to any physical harm while in the care of the school, and that the school had breached its duty as a result of the carelessness of DDS in teaching the plaintiff how to swim.
The UKSC held that the school had assumed a non- delegable duty of care to the plaintiff to ensure that the swimming lessons were carefully conducted and supervised and that the school was liable for the breach of that duty.
There were three characteristics in non-delegable duty of care in this case. They were:
- The duty arose because of an antecedent relationship between the school and the plaintiff.
- The duty is a positive duty to protect a particular class of persons against a particular class of risks.
- The duty is by virtue of that relationship personal to the school.
The UKSC determined that a non-delegable duty of care would arise if five defining features were present. They were set out by Lord Sumpton:
- The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury;
- There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, which:
- places the claimant in the actual custody, charge or care of the defendant, and
- from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren;
- The claimant has no control over how the defendant chooses to perform those obligations; i.e. whether personally or through employees or through third parties;
- The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant, and the third party is exercising for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it;
- The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.
Dr Kok Choong Seng & Sunway Medical Centre vs Soo Cheng Lin [2015]
The FC, in 2015, pointed out that the principle of non-delegable duty of care was applied in Datuk Bandar Dewan Bandaraya Kuala Lumpur vs Ong Kok Peng Anor [1993] MLJ 234 in the context of extra hazardous operations. The then Supreme Court explained that a non-delegable duty of care requires a defendant who engages a contractor to “see to it that such duty of care is exercised, whether by his contractor or not, otherwise he would be equally liable as the contractor”, The Court recognised certain situations where non-delegable duties exist.
The FC explained the principle of a non-delegable duty of care as follows:
[36] The nature of a non-delegable duty is, in essence, a positive duty to ensure that reasonable care is taken. Viewed in its proper context thus, non-delegable duties are not an anomaly in the law of negligence without a common basis, but founded on established concepts rooted in the general principles of the law of negligence itself.
An assumption of responsibility may be inferred from the creation of a special risk, or a special antecedent relationship between him and the claimant.
The assumption of responsibility gives rise to a positive duty to protect the claimant from harm, and forms the rationale for imposing a more onerous duty of care on the defendant. Indeed, the concept of assumption of responsibility has been posited as the unifying basis that may serve to explain both Lord Sumption’s first and second categories of cases (see J Murphy, Juridical foundations of common law non-delegable duties in JW Neyers et al, Emerging Issues in Tort Law (Oxford: Hart, 2007)).
[37] The defining features, including the claimant’s vulnerability or dependence and the defendant’s control or custody over the claimant, are factors well-recognised to require a higher standard of care.
Where a particular combination of such factors (as identified by Lord Sumption) exists, the standard of care is exceptionally heightened so that the requirement of reasonable care is not met simply by delegating the function to a competent contractor, but by ensuring that due care is exercised in the performance of that function by whomever is appointed to do so.
However, liability for breach of a non-delegable duty does not amount to strict liability for any injury or damage caused in the performance of that function. The duty is discharged as long as reasonable care is taken by the delegatee (see Roe v Minister of Health [1954] 2 QB 66).
[38] Non-delegable duties have been erroneously considered as a ‘kind of vicarious liability’, and adopted as part of the test to determine vicarious liability in some cases.
This is a misconception. The two doctrines are similar in effect, in that they both result in liability being imposed on a party (the defendant) for the injury caused to a victim (the plaintiff) as a result of the negligence of another party (the tortfeasor).
However, it bears emphasis that non-delegable duties and vicarious liability are distinct in nature and basis.
The former imposes personal liability on the defendant for the breach of his own duty towards the plaintiff, based on the relationship between the defendant and the plaintiff, regardless of whom the defendant has engaged to perform the task.
The latter imposes vicarious liability on the defendant for the tortfeasor’s breach of duty towards the plaintiff, based on the relationship of employment between the defendant and the tortfeasor.
[39] The doctrine of non-delegable duties has an independent scope of application apart from the realm of vicarious liability.
A number of scenarios illuminate the distinction. Non-delegable duties, or positive duties to ensure that reasonable care is taken, may exist in situations where there is no vicarious liability: for instance, where harm is caused as a result of a system failure and no individual tortfeasor can be identified, or where harm is caused by a third party to a plaintiff under the defendant’s custody.
Conversely, vicarious liability can operate in the absence of a non-delegable duty, in cases where the elements of a special hazard or a relationship of vulnerability or dependence are absent (e.g. an employee who negligently hits a pedestrian, while driving a vehicle in the course of employment). The two doctrines are conceptually and practically distinct. [emphasis added]
The FC adopted the Woodland features on the facts in this case and found that the second feature was not met.
Dr Hari Krishnan & Dr Mohamad Namazie vs Megat Noor Ishak bin Megat Ibrahim & Tun Hussein Onn Eye Hospital [2015]
The FC revisited non-delegable duty of care in the above case in 2015.
The FC pointed out that the Court of Appeal had described private hospitals in the following terms:
[58] In our view, Hospital is an institution that provides medical service and treatment to sick patients. Such services can only be given by doctors, nurses and other support staffs. A hospital cannot exist without doctors. The learned JC was correct to say that whatever arrangement entered between the doctors and the hospital, is purely internal. The negligence of the doctors cannot absolve the liability of the hospital by mere internal arrangement. When a person presents himself at the hospital for treatment he is seeking treatment from that hospital, knowing that the service would be provided through a doctor or someone at the hospital. A hospital on the other hand is nothing but a provider of medical care and services and would never exist independently without the service provider such as the doctors and nurses. The relationship between doctors and the hospital is inextricable.
The FC also applied the Woodland features in this case and pointed out:
{38} In adopting the Woodland features, this Court in both Dr Kok and Dr Hari Krishnan set about applying the five features to the particular facts of the case. Having done that, the Federal Court in Dr Kok found the second feature not met whilst in Dr Hari Krishnan, this Court found all five features present in respect of Dr Namazie, the anaesthetist but not in respect of Dr Hari. This Court further found the hospital not vicariously liable for both specialists, that both were independent contractors.
Armes vs Nottinghamshire County Council [2017]
This was also not a medical negligence case.
The plaintiff was physically and sexually abused in childhood by the foster parents with whom she was placed while in the care of the defendant local authority. The local authority was not negligent in the selection or supervision of the foster parents. The question the UKSC has to decide is whether the local authority was liable to the plaintiff for the abuse which she suffered, either on the basis that they were in breach of a non-delegable duty of care or on the basis that they are vicariously liable for the wrongdoing of the foster parents.
The UKSC addressed the five Woodland features. Lord Reed ststed thus:
[36] The five criteria set out by Lord Sumpton were thus intended to identify circumstances in which the imposition of a non-delegable duty was fair, just and reasonable. It is important to bear in mind Lady Hale’s cautionary observation that such judicial statements are not to be treated as if they were statutes, and can never be set in stone. Like other judicial statements, the criteria articulated by Lord Simpton may need to be re-considered, and possibly refined, in particular contexts. (emphasis added)
Application of Woodland in Siow Ching Yee vs Columbia Asia Sdn Bhd [2024]
The FC found that all the Woodland features were met in this case.
[80] …The first condition is easily fulfilled in the case of medical negligence such as the present appeal. The appellant is indeed in a vulnerable position and is totally reliant on the respondent for his care and treatment; more so when the appellant was admitted to its emergency services. As for the second feature of an antecedent relationship, this is well met by the both statutory framework which puts into place a relationship which deems an assumption of a non-delegable duty of care; and also from the factual circumstances. I have already dealt with the statutory relationship.
[81] On the facts, the appellant was admitted to and in the respondent’s emergency facilities and treated by its medical officer, prior to being referred to the 1st and 2nd defendants. The reference to these defendants was by the respondent’s own medical officer. These defendants are also part and parcel of the necessary professionals who must be available if the respondent was to provide emergency services on a routine basis – see regulation 231. More important, the negligent act complained of took place during the care and treatment rendered within the respondent’s premises using its facilities and services. It did not happen anywhere else;…
[84] As for the third and fourth features, it is clearly evident that the appellant had no control over how the respondent was to perform its function of rendering emergency care and treatment; whether it would be rendered personally or through employees or some third parties such as the professionals it had engaged and to whom it had delegated the integral function of treatment and care of patients at its emergency services. In fact, having assumed a positive duty of care to the appellant in respect of emergency services, the respondent had delegated to its medical officer, and to the 1st and 2nd defendants, the performance of its obligations and these persons were indeed performing those delegated functions at the material time.
[85] As for the fifth feature, it is undeniable that the 2nd defendant was negligent in the performance of the very function of rendering proper emergency care and treatment of the appellant that was assumed by the respondent but delegated to her by the respondent.
The FC determined that “With all five features satisfied, it is clear that the respondent has assumed a non-delegable duty of care that it owes personally to the appellant, a patient that is admitted to its emergency services. The defence of independent contractor thus is not sustainable in law and on the facts and ought to have been rejected by the Courts below”.
Dr Milton Lum is a Past President of the Federation of Private Medical Associations, Malaysia and the Malaysian Medical Association. The views expressed do not represent that of any organisation the writer is or was associated with. No responsibility is assumed by the writer for any injury and/ or damage to persons or property in respect of anything or the consequences of anything done or omitted to be done by anyone in reliance, whether wholly or partial, upon the whole or any part of the contents of this article. If legal advice is required, the services of a legal counsel versed in medical law should be sought.
- This is the personal opinion of the writer or publication and does not necessarily represent the views of CodeBlue.
