A commentary on Dr. Kok Choong Seng and Sunway Medical Centre Berhad v Soo Cheng Lin  1 LNS 1452 by Sara Lau.
SALIENT BACKGROUND FACTS
The patient, Soo Cheng Lin (“Patient”), had a lump on his forearm which Dr. Kok Choong Seng (“Doctor”), a consultant orthopedic surgeon advised be removed. The Patient agreed and the Doctor arranged to carry out the surgery at Sunway Medical Centre (“Hospital”). After the surgery, the Patient complained of pain and numbness at the area of his forearm which had been operated on. Upon consultation with a second doctor, the Patient was diagnosed as having lost 90% of his left median nerve.
The Patient brought an action in negligence against the Doctor and the Hospital. Of interest, the Patient alleged that the Hospital owed him a non-delegable duty to ensure that he was treated with care and skill by the Doctor at the Hospital.
THE INHERENT PROBLEM
Under the private healthcare system in Malaysia, doctors typically enter into independent contractor agreements with hospitals whereby the doctors render medical services on their own accord in collaboration with hospitals which provide the premises, tools and assisting staff such as nurses. It is the general stance of private hospitals that barring any unusual circumstances, responsibility for any medical treatment gone awry rests solely with the doctors who provide the treatment.
This is consistent with the intrinsic hallmark of the law of negligence - that tortious liability associated with negligence is fault-based and is linked to a breach of one’s own duty of care. The well-known exception to this general rule, i.e. vicarious liability, is niftily mitigated by the existence of a contract for services (independent contractor agreement) rather than a contract of service (employment agreement). Hospitals could therefore eschew any liability arising from the doctor’s negligence.
This decision, however, raised another exception to the general rule of fault-based liability - the doctrine of non-delegable duty of care. Here, the Federal Court was asked to consider if the doctrine of non-delegable duty of care as expounded in the recent English case of Woodland v Swimming Teachers Association and others
 AC 537 (“Woodland
”) could apply to private hospitals in Malaysia.
HIGH COURT & COURT OF APPEAL FINDINGS
Both the High Court and Court of Appeal agreed that there existed a non-delegable duty of care on the part of the Hospital.
The High Court found, amongst others, that the Hospital owed a non-delegable duty of care to the Patient to ensure that care is taken by the Doctor in the treatment of the Patient. The High Court stated that the Hospital’s duty could not be discharged by delegating it to the Doctor under a contract for services and that the Hospital was liable for the acts and omissions of the Doctor, regardless whether the Doctor is an employee or an independent contractor.
Aggrieved, the Hospital appealed against the High Court’s finding of liability on its part.
The Court of Appeal dismissed the Hospital’s appeal and adopted the doctrine of non-delegable duty as expounded in Woodland
. The Court of Appeal found that the Patient became a patient of the Hospital upon admission and was vulnerable or dependent on the Hospital’s protection against the risk of injury. Therefore, by reason of the Hospital’s role as a healthcare service provider, the Court of Appeal imputed a positive duty on the Hospital to protect the Patient from harm, including in relation to the treatment provided by the Doctor.
THE NON-DELEGABLE DUTY OF CARE
, the claimant was a pupil at a school, for which the defendant educational authority was responsible. It was part of the national curriculum that all pupils received swimming lessons. The swimming lessons were taught by a swimming teacher, with a lifeguard in attendance, at a pool run by a local authority. Neither the swimming teacher nor the lifeguard were employees of the defendant.
During a swimming lesson, the claimant suffered a serious brain injury. The claimant brought a claim against the swimming teacher and lifeguard for negligence and against the defendant for breaching its non-delegable duty of care towards him.
In expounding on the doctrine of non-delegable duty of care, the Supreme Court observed that there appeared to be two broad categories of cases wherein such a duty may be found. The first is as where an entity (“X”) engages an independent contractor (“Y”) to perform an inherently hazardous function.
The second, which was more relevant in the instant case, is where the following three characteristics were apparent: