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, despite doubts about the adequate of the sample, and the pregnancy continued. The child was born with the disease. The court had found negligence and apportioned the damages.
Held: The court had fallen into error in not accepting the expert descriptions of normal good practice. The testing hospital was able to assume the adequacy of the sample unless informed of this by the testing agency. The hospital laboratory carried none of the liability.
Dyson LJ said that any departure from the general rule as to the liability of an employer for the acts of others had to be justified on policy grounds. If the position were to be otherwise, there was a danger that the general rule would become the exception rather than the rule, and that is not the law.
References: [2009] EWCA Civ 1203, (2010) 11 BMLR 131, [2010] PIQR P7, [2010] Med LR 1
Links: Bailii
Judges: Sedley, Dyson, Smith LJJ
Jurisdiction: England and Wales
This case cites:

  • Cited – Wilsons and Clyde Coal Co Ltd v English HL 19-Jul-1937 ([1938] AC 57, , [1937] UKHL 2, [1937] 3 All ER 628)
    The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all . .
  • Cited – Kondis v State Transport Authority 16-Oct-1984 (, [1984] HCA 61, (1984) 154 CLR 672, (1984) 55 ALR 225, (1984) 58 ALJR 531, (1984) Aust Torts Reports 80-311)
    (High Court of Australia) Mason J discussed the concept of the personal duty which Lord Wright expounded in Wilson and said that it made it impossible to draw a convincing distinction between the delegation of performance of the employer’s duty to . .
  • Cited – D and F Estates v Church Commissioners for England HL 14-Jul-1988 (, [1988] UKHL 4, [1989] AC 177)
    The House considered the liability of main contractors on a construction site for the negligence of it sub-contractors.
    Lord Bridge said: ‘It is trite law that the employer of an independent contractor is, in general, not liable for the . .
  • Cited – Gold v Essex County Council CA 1942 ([1942] 2 KB 293)
    The hospital was held accountable for an injury caused by negligence of an employee radiographer. The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of . .
  • Cited – Cassidy v Ministry of Health CA 1951 ([1951] 2 KB 343)
    The court considered the liability in negligence of the respondent for the negligence of doctors employed by it.
    Held: The Ministry was liable for the negligence of doctors who were employed by it on contracts of service.
    Denning LJ . .
  • Cited – A v Ministry of Defence; Re A (A Child) CA 7-May-2004 (Times 17-May-04, Gazette 03-Jun-04, , [2004] EWCA Civ 641, [2005] QB 183)
    The wife of a British Army soldier serving in Germany delivered a premature baby, ‘A’, with a German obstetrician in a German hospital. A suffered brain damage in the birth as a result of the obstetrician’s negligence. The mother claimed against the . .
  • Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995 (Independent 30-Jun-95, Times 30-Jun-95, [1995] 2 AC 633, , [1995] UKHL 9, [1995] 2 FLR 276, [1995] 3 All ER 353, [1995] 3 WLR 152, [1995] 3 FCR 337, (1995) 7 Admin LR 705, 94 LGR 313, [1995] Fam Law 537, [1995] 3 FCR 337)
    Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
  • Cited – Priestley v Fowler 1837 (, [1837] EngR 202, (1837) 3 M and W 1, (1837) 150 ER 1030)
    Priestley was a butcher’s man who was injured when a van overloaded by fellow employees collapsed, injuring him. His lawsuit was founded on the principle of a master’s vicarious liability for his servant’s negligence. . .
  • Cited – Bartonshill Coal Co v Reid HL 1858 ((1858) 3 Macqu 265)
    A workman had been killed through the overturning of the miners’ cage, the engineman having failed to stop the ascending cage at the platform and having allowed it to be sent with great force up against the scaffolding. An allegation was made that . .
  • Cited – Ellis v Wallsend District Hospital 1989 ([1990] 2 Med LR 103, (1989) 17 NSWLR 553)
    (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 . .
  • Cited – Roe v Ministry of Health CA 1954 ([1954] 2 QB 66, , [1954] 2 All ER 131, [1954] 2 WLR 915, [1954] EWCA Civ 7)
    The plaintiff complained that he had developed a spastic paraplegia following a lumbar puncture.
    Held: An inference of negligence was rebutted. However the hospital authority was held to be vicariously liable for the acts or omissions of the . .
  • Cited – Robertson v Nottingham Health Authority CA 1987 ([1987] 8 Med LR 1)
    Brooke LJ held that ‘the only rule that this court has to apply in the present case is that if a patient is injured by reason of a negligent breakdown in the systems for communicating material information to the clinicians responsible for her care, . .
  • Cited – Wilsher v Essex Area Health Authority CA 1986 (, [1986] 3 All ER 801, [1987] 2 WLR 425)
    A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
  • Cited – Joseph Smith (Pauper) v Charles Baker and Sons HL 21-Jul-1891 (, [1891] UKHL 2, [1891] AC 325)
    . .
  • Cited – Mitchil v Alestree 1726 (, [1726] EngR 590, (1726) 1 Vent 295, (1726) 86 ER 190 (B))
    In an action upon the case brought against the defendant, for that he did ride an horse into a place called Lincoln’s Inn Fields, (a place much frequented by the King’s subjects, and unapt for such purposes) for the breaking and taming of him, and . .

This case is cited by:

  • Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011 (, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
    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 . .
  • Cited – Woodland v Essex County Council CA 9-Mar-2012 (, [2012] EWCA Civ 239, [2013] 3 WLR 853, [2012] ELR 327, [2012] Med LR 419, [2012] PIQR P12, [2012] BLGR 879)
    The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .

These lists may be incomplete.
Last Update: 25 October 2020; Ref: scu.377910