(Court of Appeal of New South Wales) Samuels JA discussed the circumstances in which a non-delegable duty of care arises: ‘It arises from a relationship which combines the dependence of A upon the reasonable care, skill and judgment of B with the legitimate expectation that B will ensure that those qualities will be exercised in protection of the person or property of A. A further policy decision will be required to determine when that peculiar combination of dependence and expectation . . exists. But it can scarcely be doubted that it does so in the case of the relationship between hospital and patient . . The basis of the duty is, more persuasively, the satisfaction of expectations about where liability ought to be sheeted home.’
Kirby J (dissenting) said that ‘As the intensely technological nature of modern hospitals necessitates the occasional invitation of visiting experts (who are not in the strict sense employers or even honorary staff members of the hospital) it is highly desirable that the law should make plain the protection of patients who suffer as a result of the professional expert’s mistakes. So far as the patient is concerned he or she is in the hospital. He or she should be able to look to the hospital to ensure (by insurance or otherwise) that proved wrongs by health care staff occurring at the hospital or arising out of its activities are compensated in full degree.’
Samuels JA said that proof of the relationship of hospital and patient ‘will generate a special duty of some kind, closer scrutiny of the facts . . is necessary in order to establish its scope. It is a question of what medical services the hospital has undertaken to supply.’ and ‘It is true that while considerations of loss distribution may have been potent in developing the principle in the area of relations between employer and employee where small independent contractors were at one time notoriously likely to be uninsured against public risk., they are no longer of the same importance, as Whippy points out (op cit at 202). There is no reason to suppose that surgeons are significantly less protected by the embrace of underwriters than hospitals are. The basis of the duty is, more persuasively, the satisfaction of expectations about where liability ought to be sheeted home.’
Judges:
Kirby J, Samuels JA
Citations:
[1990] 2 Med LR 103, (1989) 17 NSWLR 553
Jurisdiction:
Australia
Cited by:
Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Lists of cited by and citing cases may be incomplete.
Vicarious Liability
Updated: 02 May 2022; Ref: scu.378399