Introduction
The recent Federal Court ruling in Siow Ching Yee v Columbia Asia ([2024] CLJU 404) established that private health care facilities owe a statutory non-delegable duty of care toward their patients.
Thus, they are likely to be liable for any acts of negligence committed by anyone appointed to treat patients.
In this article, I will examine the development of the non-delegable duty, its role in filling a legal gap left by vicarious liability and whether its imposition on private hospitals is fair, reasonable, and just.
Facts Of The Case
The appellant had undergone a tonsillectomy and endoscopic sinus surgery in March 2010 at a private hospital in Subang Jaya.
Twelve days later, he suffered post-operative bleeding and was brought to the Casualty department of the respondent’s private hospital as it was closer to home.
He was attended to initially by the resident medical officer, and subsequently by the resident Ear, Nose and Throat (ENT) Surgeon (first defendant), who recommended explorative surgery under general anaesthesia.
The appellant suffered significant bleeding outside the operating theatre with substantial delay by the anaesthetist (second defendant) to secure his airway.
Whilst subsequent surgery successfully stopped the bleeding, he suffered massive cerebral hypoxia, leading to permanent disability.
At trial, the appellant alleged that the respondent hospital was vicariously liable for the negligence of its doctors and was also ‘directly liable for breach of its non-delegable duty’.
Whilst the High Court found against the second defendant, the Court also found that both doctors were independent contractors at all material times, as evidenced by their Resident Consultant agreements produced at trial, and hence, the respondent hospital was not vicariously liable.
The Court of Appeal found that the respondent did not owe a non-delegable duty to the appellant, so the appellant appealed to the Federal Court.
In a four-to-one decision, the majority of the Federal Court found that the respondent owed a non-delegable duty to the appellant and that it was in breach of said duty.
In particular, the Court agreed that a general non-delegable duty was to apply to private hospitals, making them more or less automatically liable for the negligence of their resident doctors, who, contractually, are most likely to be independent contractors.
Vicarious Liability And Non-Delegable Duty
The doctrines of vicarious liability and non-delegable duty allow liability for a negligent act to be imputed to another party.
Although conceptually different, the expansion of both modern-day doctrines is similar in that it has occurred primarily to offer legal redress in the absence of other avenues.
Vicarious Liability: Early Development
The embryonic vicarious liability evolved as employer liability, notably during the Industrial Revolution. Early employer-employee relationships possessed certain characteristics, including a significant wealth gap and technical skills gap.
In addition, increasing automation and employee injury in the context of an inadequate social safety net meant that employers, who benefited from the labour of their employers, and were, as a result, more solvent, were best prepared to shoulder the financial liability that arose as a result of workplace negligence.
The early English courts held that vicarious liability could only be imputed to an employer if the relationship between the employer and tortfeasor was one of employer-employee.
For example, in the early case of Overton v Freeman (138 ER 717 (1852), the Court held that liability for an injury that arose due to faulty construction work could not be imputed to the defendant as an independent contractor did the negligent work.
Vicarious Liability: Shaping Of The Modern Doctrine – Policy And Criteria
In recent years, the doctrine of vicarious liability has increased its reach to impose liability in relationships that, while not employer-employee, were sufficiently ‘akin to employment’, primarily to extend legal protection for classes of particularly vulnerable people.
In Various Claimants v The Catholic Child Welfare Society ([2012] UKSC 56), the tortfeasors were brothers of the Society who had abused pupils in their care in homes managed by the Society.
The United Kingdom Supreme Court held that while the tortfeasors were not in a remunerated, contractual employer-employee relationship, the relationship was sufficiently akin to employment that the Court imputed vicarious liability to the defendants.
Why this expansion of vicarious liability occurred beyond a conventional employer-employee relationship was explained by Lord Philips, who delivered the unanimous judgement, explaining at paragraph 84 that in order to hold religious institutions responsible for abuse within their ranks, the law of vicarious liability had to develop and expand to deliver redress when claimants could not establish conventional relationships of employer-employee.
Could vicarious liability continue to expand its reach to impose liability on employers for the negligence of independent contractors? The Supreme Court halted this expansion in Barclays v Various Claimants ([2020] UKSC 13), where the Court held that vicarious liability had not expanded to the point where it could apply to an employer-independent contractor relationship.
The Court further reiterated that the fundamental question should be whether the tortfeasor was an employee or an independent contractor.
Where, then, could redress come from?
Non-Delegable Duty: Early Development
The non-delegable duty is a primary liability imputed to a party not just to ‘take reasonable care’, but to ensure that reasonable care is taken (Lord Sumption in Woodland).
Such a duty was seen to arise early on to extend to ensure safe working conditions by employers in particularly hazardous jobs.
In particular, it was the duty of the employer not only to provide for safe working conditions but also to ensure that whoever the task was delegated to would exercise reasonable care in their duty (Wilsons & Clyde Coal Company, Limited Appellants v English Respondent [1938] AC 57, McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906).
In the 1950s, the non-delegable duty arose as a personal duty imposed upon hospital authorities.
The minority judgement of the Court in Cassidy v Ministry of Health hinted at a personal duty inherent upon the hospital authorities.
As they had made it their business to treat the sick and had appointed the staff to do so, therefore they were under a duty to ensure that care was taken ([1951] 2KB 343).
However, policy considerations and criteria underpinning such a duty were not elucidated until the seminal case of Woodland v Essex City Council.
Modern Non-Delegable Duty: Woodland v Essex City Council
In Woodland, the claimant was a schoolgirl who was seriously injured during swimming lessons. The school authority outsourced these lessons to an independent contractor who provided services for swimming lessons.
At trial, the appellant pled that the school and education authority who outsourced the lessons owed her a non-delegable duty of care.
The Supreme Court held that the authority owed a non-delegable duty to ensure that care was taken during the lessons and listed five criteria that would make it fair, just and reasonable to impose a non-delegable duty on an employer for negligence of an independent contractor.
These criteria were:
- The existence of a relationship whereby the claimant was placed in the care of the defendant.
- The claimant had to be in a position of vulnerability, dependent upon the defendant for his or her welfare.
- The defendant had to have delegated to a third party, a function that was within the scope of their duty towards claimant.
- The claimant had to have no control over how the defendant or third party carried out that very function.
- Lastly, the third party had to have been negligent in that every function.
Lord Sumption, who delivered the majority judgement, opined that the Courts should not impose such duties and subsequent financial burdens lightly, especially on entities providing critical public services such as schools or hospitals.
However, he further said that the factual existence of the criteria above would make the imposition of such a duty fair, just and reasonable.
One of the primary reasons that this was so was because of the progressive outsourcing of vital functions by various authorities, who would otherwise have been vicariously liable had their employees been negligent.
Imposition Of A Non-Delegable Duty On The Private Sector
Similarly to the National Health Service, the government of Malaysia is already vicariously liable for any acts of negligence committed by any of its employees within the walls of public health care facilities.
Imposition of vicarious liability on private hospitals for the negligence of their consultants is a more formidable task, as more often than not, their consultants are deemed to be truly independent contractors by virtue of their contractual agreements.
Similar to the United Kingdom, Malaysian courts recognise the distinction between employees and independent contractors in determining whether vicarious liability should be imposed.
The Federal Court in Siow Ching Yee approved the High Court’s findings that as the defendant doctors were always independent contractors, the hospital could not be found vicariously liable.
However, the imposition of a non-delegable duty on private hospitals is a more straightforward proposition when the Court finds the entirety of evidence cannot establish that the negligent party is anything but an independent contractor.
Imposition of such liability, however, should be principled and consistent, subject to consistent policy application and careful consideration of the Woodland criteria.
The majority of the Court explained explicitly that the underpinning policy was one of ensuring that private hospitals and facilities shoulder responsibility for the “treatment and care of the patients regardless to whom they may have employed, engaged or delegated that task or responsibility” (Siow Ching Yee at para 79).
The primary reason for this is that private hospitals and facilities are deemed to have a statutory responsibility to ensure that patient safety is paramount (Siow Ching Yee at para 83).
This responsibility is imposed upon them by the Private Healthcare Facilities and Services Act 1998 (Private Healthcare Facilities and Services Act (PHFSA) 1998) or Act 586.
In particular, the Act provides that each facility is to “ensure the quality and appropriateness of health care facilities and services provided” (PHFSA 1998 Part XIII 74(1), to comply with prescribed standards of care (PHFSA 1998 Part XIII 75(1), and especially pertinent to Siow Ching Yee, to be at all times “capable of instituting, and making available, essential life-saving measures and implementing emergency procedures on any person requiring such treatment or services” (PHFSA 1998 Part V 38(1).
The majority opinion also less explicitly implied that a second reason for imposing a non-delegable duty on the private sector was that complex contractual relationships existed between the facilities and the medical practitioners who provide health care.
Imposing a non-delegable duty would fill the legal gap left by Barclays.
The sole dissenting justice, Zabariah Mohd Yusof FCJ cautioned restraint against a general imposition of a non-delegable duty, citing Lord Sumption’s warning in Woodland against opening floodgates of new liability.
She cited the apex Court’s decision in Dr Kok to avoid pronouncing a general non-delegable duty on private hospitals, stating that it would be irregular for the same Court to reverse its own decision except in exceptional circumstances.
The learned Judge also held that as the strength of Woodland elements would differ from case to case, a general imposition would be improper.
For example, at para 162, she held that on the facts of the case and given that the plaintiff had presented in an emergency situation that there was “no antecedent relationship between D3 (hospital) with the patient”.
I respectfully disagree with the learned Judge for the following reasons.
First, the statute’s intention is paramount when determining if a defendant owes a non-delegable duty.
For example, in Hopkins v Akramy ([2021] 2 WLR 893), the Court held that the NHS avoids a non-delegable duty for the negligent acts of private contractors as the NHS Act 2006 (NHS Act 2006) provides that the NHS merely ‘arrange’ for the provision of health services by way of open tender.
This starkly contrasts to the PHFSA that clearly provides Malaysian private health care facilities to deliver safe, quality care consistent with accepted standards to any patient requiring such services.
Second, I opine that it is unlikely that the Woodland criteria are not met, regardless of the case facts. A relationship which imposes a non-delegable duty may be established by statute, as we have already seen — or by contract when a patient registers themselves as a patient of a private facility or signs a consent form (Hughes v Rattan [2022] EWCA Civ 107at para 66).
Subsequent consummation of the other criteria – vulnerability and lack of control over how the delegated party carried out their care – would depend mainly upon the facts of the case.
In Siow Ching Yee, it is manifestly evident that the plaintiff was more or less entirely dependent upon the care of the anaesthetist and lacked even a modicum of control over the induction of anaesthesia and airway security.
Similarly, a patient who undergoes an iatrogenic injury under general anaesthesia demonstrates complete vulnerability and lack of control over his care.
Does this mean that otherwise fit and well private patients who can choose the hospital and provider of their choice for non-urgent, elective procedures would retain control over the performance of their care?
Superficially, it would appear that it does. However, the Court of Appeal in Hughes v Rattan ([2022] EWCA Civ 107, 2022 WL 00329065) held that the amount of control a patient has insofar as choosing their provider needed to be more sufficient to negate the ‘control’ element. As a result, the Court decided that a non-delegable duty was owed.
I would agree — any control that a patient wields ends when a doctor’s examination, diagnosis, and management plan are formulated. The chasm in knowledge and skill is surely able to negate any notion of control the patient may have.
Third, I argue that is reasonable to expect private hospitals to owe a non-delegable duty because such facilities are far from entities performing ‘critical public services’ as expounded by Lord Sumption in Woodland.
In the past, the UK Supreme Court has declined to impose a non-delegable duty in cases similar to Woodland because financial liability being imposed on non-profit social welfare entities carrying out social work would discourage such work.
The private health care landscape is far from non-profit entities performing ‘critical public services’. It is fast becoming one of multinational corporate ventures, boardrooms, public listings, and profitability.
Private hospitals routinely tout advanced, safe care in their vision and value statements. It follows then that it is reasonable to expect a duty to ensure that such safe care is taken is owed to any patient who seeks treatment.
Implications From The Ruling
First, the Court rejected the respondent hospital’s appeal to have the second defendant indemnify the respondent, saying that a non-delegable duty was personal to the hospital, over and above that of the second defendant.
Private hospitals and facilities would have to be properly indemnified, as a claim for non-delegable duty is likely to be more straightforward once a cursory examination of the employment status does not indicate employment or ‘akin to employment’.
Second, how would hospitals attempt to circumvent liability? Facilities with round-the-clock emergency services would have to ensure adequate on-site staffing and facilities, thus increasing operating costs.
What would this mean for facilities that may, at times, be undermanned or understaffed? This would throw into sharp relief, arrangements between hospitals and doctors — would doctors who are essentially at law, independent contractors forced by hospitals to accept each and every patient who acutely presents with life threatening conditions?
In Barclays, the Supreme Court held that doctors deemed to be independent contractors were more likely to have control over which patients they chose to treat and were free to work for (Lady Hale in Barclays, affirming the findings in Kafagi v JBW Group Ltd [2018] EWCA Civ 1157).
Whether this would eventually have a common law or contractual basis in hospital-doctor agreements regardless of the ethical ramifications would be an interesting development to monitor for.
Conclusion
The Federal Court decision in Siow Ching Yee to impose a statutory non-delegable duty on private hospitals in Malaysia is likely to be fair, just and reasonable as both policy and common law criteria are likely to be met, regardless of the facts of each individual case, with far reaching ramifications.
Dr Julian Tagal is a practising refractive surgeon with OasisEye Specialists. He obtained his FRCOphth from the United Kingdom in 2013 and also obtained his LLM Masters of Medical Law and Ethics from De Montfort University in 2023.
- This is the personal opinion of the writer or publication and does not necessarily represent the views of CodeBlue.
