The Doctrine of Non-Delegable Duty of Care

A commentary on Dr. Kok Choong Seng and Sunway Medical Centre Berhad v Soo Cheng Lin [2017] 1 LNS 1452 by Sara Lau.
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.
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 [2014] AC 537 (“Woodland”) could apply to private hospitals in Malaysia.
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.
In Woodland, 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:
  1. the duty arises not from the negligent character of the act itself, but by reason of an antecedent relationship between X and a victim of negligence (“Z”);

  2. the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury; and

  3. the duty, while delegable, remains X’s and delegation of the same makes no difference to his legal responsibility for the proper performance of the same.
Woodland was a case which involved the second category. The Supreme Court laid down the following test (“Woodland Test”), which must be satisfied before a non-delegable duty may be found:
  1. Z is a patient or child, or is otherwise especially vulnerable or dependent on X against risk of injury;

  2. There is an antecedent relationship between Z and X which involves some element of control over Z;

  3. Z has no control over how X chooses to perform those obligations;

  4. X has delegated to Y a function, integral to the positive duty which X assumed over Z and Y performs such functions; and

  5. Y is negligent in the very function which was delegated by Z, which Y had assumed.
The Supreme Court in Woodland ultimately held that the defendant was not vicariously liable for the swimming teacher’s and the lifeguard’s negligence as they were independent contractors. However, the Court found that the defendant had assumed a non-delegable duty to ensure that the claimant’s swimming lessons were carefully conducted and supervised by whomever it had entrusted to perform those functions. Hence, as the negligence occurred in the course of the functions which the school had assumed an obligation to perform, the defendant was in breach of its duty for the independent contractors’ negligence in performing those functions.
The Federal Court, in a landmark decision, found that the doctrine of a non-delegable duty of care as expounded in Woodland is applicable in Malaysia, and could extend to private healthcare institutions such as the Hospital in relation to doctors, who as independent contractors, perform medical treatment within its facilities. The Federal Court categorically rejected the arguments by counsel “that all private hospitals are always or never under a non-delegable duty of patients.”
The Court found that given that the role of the hospital may vary from patient to patient, the extent and scope of the hospital’s duty towards a patient must be ascertained from the facts and circumstances of the case.
Applying the Woodland Test to the present case, the Federal Court found that the first feature was satisfied - the Patient was admitted and underwent surgery in the Hospital’s premises and was in an especially vulnerable position dependent on the Hospital against risk of injury.
In considering whether the second feature of the Woodland Test was satisfied, the Court noted that the Patient had consulted the Doctor at his private clinic located outside the Hospital’s premises prior to the operation and for follow-up appointments. The Doctor advised and referred to the Patient to the Hospital for its facilities and performed the operation on the Patient himself.
The Court said that from the circumstances surrounding the Patient’s engagement of the Doctor and admission to the Hospital, it can be inferred that the Patient reasonably expected the operation to be conducted by the Doctor with due care, wherever the Doctor referred him to do so; the Hospital would merely provide the relevant facilities required for his admission and operation. In respect of the conduct of the operation by the Doctor, the Court did not find that the Hospital had assumed a positive duty to protect the Patient from injury. Thus, the Federal Court concluded that the second feature of the Woodland Test was not satisfied.
The Federal Court contrasted the above with a hypothetical scenario wherein a patient independently enters a hospital and relies on the hospital’s recommendation to a suitable doctor on duty. In that situation, the hospital having accepted the patient and undertaken to treat him, may be under a non-delegable duty of care to ensure that the patient is treated with due care.
As the second feature was not satisfied, the questions as to whether the third to fifth features of the Woodland Test were satisfied did not arise.
The Federal Court therefore found that the Hospital was not liable for the Doctor’s negligence.
The doctrine of non-delegable duty of care is not without its flaws. The imposition of strict liability upon an entity which is otherwise faultless may be perceived as going too far beyond its basic tenets.
However, it is important to remember that the fundamental jurisprudence behind the law of negligence is an imposition of a positive duty to protect another from harm. This, too, forms the basis behind a non-delegable duty of care; which, in any case, as Woodland has shown, is a duty of care which is extremely limited in its application.
Most encouragingly, the Federal Court has recognised that the non-delegable duty of care is a particularly onerous obligation which ought to be imposed only where it is fair, just and reasonable to do so based on the particular circumstances of the case.
A welcome, yet undoubtedly precarious progression in the law of negligence in Malaysia, the overarching subjective approach adopted by the Federal Court in relation to the imposition of a non-delegable duty of care suggests that considerable expansion and development of this area of law may be expected in time to come.