Core Elements of Medico-Legal Cases

DARRYL S C GOON

1ST MARCH 2019

MEDICO-LEGAL CASES:

CORE ELEMENTS

POTENTIAL DEFENDANTS

Potential

Defendants

Doctors

Government

Hospitals

Private

2

DOCTORS

COMMON LAW BASES FOR LIABILITY

3

DOCTORS

Tort of

Negligence

Contract

Tort of Trespass

to the Person

(Consent)

Common Law Bases of Liability

4

CONTRACT

“Applying the 

Moorcock 

principle

, I think there is no

doubt that the Plaintiff would have been entitled

reasonably to assume that the Defendant was

warranting that the operation would be performed

with reasonable care and skill

. That, I think, would

have been the inevitable inference to be drawn,

from an objective standpoint… The contract did, in

my opinion include an implied warranty of 

that

nature.”

Per Slade LJ in 

Eyre v Measday [1986] 1 All ER 488

5

CONTRACT

“It is common ground that the Defendant contracted to

perform a vasectomy operation on Mr. Thake and that in

the performance of that contract he was subject to the

duty implied by law to carry out the operation with

reasonable skill and care

.”

Per Neal LJ in 

Thake v Maurice [1986] 1 All ER 497

Note:

1.

It needs to be observed that such an implied term

would have to be pleaded in the statement of claim.

2.

For practical considerations, a claim in contract would

generally add nothing more to a claim in the tort of

negligence.

6

TORT OF TRESPASS TO THE PERSON

1.

The interference to the personal integrity of a

person without his consent is tantamount to a

trespass to the person – battery.

2.

Battery

“Battery is the intentional and direct application

of force to another person”

“Any physical contact with the body of the

plaintiff (or with his clothing) is sufficient to

amount to ‘force’.”

Winfield & Jolowicz 15

th

 Edn

7

TRESPASS TO THE PERSON

“… as a general rule, the performance of a 

medical

operation

 upon a person 

without his or her consent

is unlawful, as constituting both the 

crime of battery

and the tort of trespass to the person

.”

Per Lord Goff in 

Re F (Mental Patient: Sterilisation)

 [1990]

2 AC 1 at page 71

8

TRESPASS TO THE PERSON

The Role of “Consent”

“There seems to be some 

confusion

 in the minds of some

as to the purpose of seeking

consent

 from a patient

(whether adult or child) …. 

The legal purpose is quite

different.  It is to provide those concerned in the

treatment with 

a defence to a criminal charge of assault

or battery or a civil claim for damages for trespass 

to the

person.  It 

does not, however, provide them with any

defence to

 a claim that they 

negligently advised a

particular treatment or negligently carried it out

.”

Per Lord Donaldson M.R. In 

re W (A Minor) (Medical Treatment:

Court’s Jurisdiction)

 [1993] Fam 64 at pg 76

9

TRESPASS TO THE PERSON

“

If it is alleged that a 

doctor had operated without consent

,

then the proper cause of action to raise would be battery or

trespass to the person and not negligence

. Here, the plaintiff

has 

erroneously pleaded his case in negligence and not

trespass

.”

per Zamani A Rahim JC in 

Ngiao Jong Nian v

Lee Chan Foo & Anor

 [2011] 1 MLJ 565 at p575

See also:

•

Gurmit Kaur a/p Jaswant Singh v Tung Shin Hospital & Anor

[2012] 4 MLJ 260 (spousal consent and negligence).

•

Abdul Razak bin Datuk Abu Samah v Raja Badrul Hisham

bin Raja Zezeman Shah & Ors 

[2013] 10 MLJ 34, HC

(spousal consent)

10

TRESPASS TO THE PERSON

Absence of

Consent

Trespass/Battery

Medical

Negligence

X

11

TRESPASS TO THE PERSON

How much explanation for a valid consent?

“I am wholly satisfied that as a matter of English law

a consent is not vitiated by a failure on the part of

the doctor to give the patient 

sufficient information

before the consent is given.”

Per Donaldson MR in 

Sidaway v Bethlem Royal

Hospital Governors

 [1984] 1 All ER 1018, at 1026 and 1029

12

TRESPASS TO THE PERSON

How much explanation for a valid consent?

“In my judgment what the court has to do in each case

is to look at all the circumstances and say, “

Was there a

real consent

?’…

…

In my judgment once the patient is 

informed in

broad terms of the nature of the procedure

 which is

intended

, and gives her consent, that consent, is real,

and the 

cause of the action

 on which to base a claim

for failure to go into risks and implications is negligence,

not trespass

.”

Per Bristow J in 

Chatterton v Gerson

 [1981] 1 All ER 257 at 265

13

TRESPASS TO THE PERSON

How much explanation for a valid consent?

“Anglo-Australian law has rightly taken the view that

an allegation that the risks inherent in a medical

procedure have not been disclosed to the patient

can only found an action in negligence and not in

trespass; the 

consent necessary to negative the

offence of battery is satisfied by the patient being

advised in broad terms of the nature of the

procedure to be performed

.”

Per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said in

Rogers v Whitaker

 (1992) 175 CLR 479 at 490.

14

TRESPASS TO THE PERSON

Rationale for Consent & Right to Refuse Treatment

“First, it is established that the 

principle of self-determination 

requires that

respect must be given to the wishes of the patient, so that 

if an adult

patient of sound mind refuses, however unreasonably, to consent to

treatment or care by which his life would or might be prolonged, the

doctors responsible for his care must give effect to his wishes

, even

though they do not consider it to be in his interest to do so

 …To this

extent, the principle of the 

sanctity of human life must yield to the

principle of self-determination

…and, for present purposes perhaps more

important, the 

doctor’s duty to act in the best interests of his patient must

likewise be qualified

”

Per Lord Goff in 

Airedale NHS Trust v Bland

 [1993] AC 789 at pg 864

NB:  

See also 

see 

Rees v Darlington Memorial Hospital NHS Trust

 [2003] UKHL 52, [2003] 4

All ER 987.

15

CONSENT : STATUTORY REQUIREMENT

Private Healthcare Facilities & Services (Private Hospitals and

Other Private Healthcare Facilities) Regulations 2006 : Regulation

47



A 

written

“valid consent” must be obtained “…before 

any

procedure

or 

surgery

is carried out on the patient.”



For patients under 

18 and unmarried

, consent must be obtained

from the parent or guardian



Contravention of Regulation 47 is an offence punishable by a

maximum fine of  RM10K and/or a maximum of 3 months

imprisonment.

NB:

1.

Does not apply to government hospitals

2.

See also Guardianship of Infants Act 1961, Age of Majority Act 1971 and

Child Act 2001

16

CONSENT : AT COMMON LAW

Gillick v West Norfolk A.H.A v Department of Health

and Social Security [1986] 1 AC 112

“Held: …(1)…; that a girl under the age of 16 years had 

the legal capacity 

to consent

to medical examination and treatment

, including contraceptive treatment, if she had

sufficient maturity and intelligence to understand the nature and implications of the

proposed treatment

.

(2)  That the 

parental right to control a minor child deriving from parental duty was a

dwindling right 

which existed 

only in so far as it was required for the child’s benefit

and protection

; that the extent and duration of that right could not be ascertained

by reference to a fixed age, but depended on the degree of intelligence and

understanding of that particular child; that the 

parents’ right 

to determine whether a

child under 16 should have medical treatment 

terminated when the child achieved

sufficient intelligence and understanding to make that decision itself

...”

17

CONSENT : AT COMMON LAW

In Re W. (A Minor)  [1993] Fam. 65, CA

Held:  …”that, although 

a minor of any age who

had sufficient maturity might consent to treatment,

his 

refusal to give consent

 could not overrule

consent given by the court

; that in exercising its

inherent jurisdiction the court would take particular

account of the minor’s wishes, the importance of

which increased with his age and maturity, but

would override them where his best interests so

required;”

18

TRESPASS TO THE PERSON

Exception

“In my opinion, the solution to the problem which the common law

provides is that a 

doctor can lawfully operate 

on, 

or give other

treatment to

, 

adult patients who are incapable, for one reason or

another

, of consenting to his doing so, provided that the operation

or other treatment concerned is 

in the best interests of such

patients.

 The operation or other treatment will be in their best

interests if, but only if, it is carried out in order either 

to save their

lives or to ensure improvement or prevent deterioration in their

physical or mental health

.”

Per Lord Brandon of Oakbrook in

F v West Berkshire Health Authority

and another (Mental Health Act Commission intervening)

[1989] 2

All ER 545 at 551

19

TRESPASS TO THE PERSON

“Informed Consent”

Currently has no place in our jurisprudence.

“The first argument was that unless the patient’s consent

to the operation was 

a 

fully informed consent

 the

performance of the operation would constitute a

battery on the patient by the surgeon.  This 

is not the law

of England.  

If there is consent to the nature of the act,

then there is no trespass to the person

.”

Per Dunn LJ in 

Sidaway v Bethlem Royal Hospital Governors

 [1984] 1All

ER 1018, at pg 1029 [Decision upheld on appeal to the House of

Lords]

20

TRESPASS TO THE PERSON

“Informed Consent”

“

A combination of the 2008 Guidance provided by the General

Medical Council, the decision of the Court of Appeal in 

Pearce v

United Bristol Healthcare NHS Trust

 (1998) 48 BMLR 118 and the

decision of the House of Lords in 

Chester v Afshar

 [2004] JKHL 41,

[2004] 4 All ER 587, [2005] AC 134

meant that 

it could now be stated

'with a reasonable degree of confidence' that the need for

informed consent was firmly part of English law 

(para 8.70). This case

has provided us with the opportunity, not only to confirm that

confident statement, but also to make it clear that the same

principles apply in Scotland.

 ”

Per Lady Hale in 

Montgomery v Lanarkshire Health Board (General

Medical Council intervening

) 

[2015] 2 All ER 1031 at 1058 para 107

21

TRESPASS TO THE PERSON

•

“

Informed consent

” part of English law by virtue of the

duty to advise of material risks within a doctor’s duty of

care (cause of action in negligence), not the same as

consent or approval given for medical treatment (cause

of action in trespass to the person).

•

Duty to advise of material risk is to achieve an “

informed

decision

” 

and is not about the 

validity of the consent

.

22

TORT OF NEGLIGENCE

Duty of Care

Damages

Breach of

Duty of Care

23

NEGLIGENCE : DUTY OF CARE

It is beyond contestation that a medical doctor

owes his patient a duty of care.

24

NEGLIGENCE : DUTY OF CARE

Doctor’s Duty of Care

Diagnosis

(Misdiagnosis

and Wrong

Diagnosis)

Advice

Treatment

(Removal of

wrong limb,

damaging

other organs in

the course of a

surgery, etc…)

25

NEGLIGENCE : DIAGNOSIS &

TREATMENT

Decision of the Federal Court in 

Zulhasnimar bt Hasan Basri

& Anor v Dr Kuppu Velumani P & Ors

 [2017] 5 MLJ 438

The question of law posed :

“Question 1: Whether the 

Bolam

 test or the test in the

Australian case of 

Rogers v Whitaker 

(1993) 4 Med LR 79 in

regard to the standard of care in medical negligence

should apply, following conflicting decisions of the Court

of Appeal in Malaysia and legislative changes in Australia,

including the re-introduction there of a modified 

Bolam

test.”

26

NEGLIGENCE : DIAGNOSIS &

TREATMENT

The answer :

“The test propounded by the Australian case in Rogers v

Whitaker and followed by this Court in Foo Fio Na in regard

to start of care in medical negligence is restricted only to

the duty to advise of risks associated with any proposed

treatment and does not extend to diagnosis and

treatment. 

With regard to the standard of care for

diagnosis or treatment, the Bolam test still applies, subject

to qualifications as decided by the House of Lords in

Bolitho

.”

27

NEGLIGENCE : DIAGNOSIS &

TREATMENT

The Bolam Test

“A doctor is 

not guilty of negligence if he has acted 

in accordance with

a practice accepted as proper by a responsible body of medical men

skilled in that particular art 

… Putting it the other way round, a doctor is

not negligent

, if he is acting in accordance with such a practice, 

merely

because there is a body of opinion that takes a contrary view

.”

per McNair J in 

Bolam v Friern Hospital Management Committee

[1957] 2 All ER 118 at p 122 (English HC)

Note:  The standard is determined by the medical fraternity, hence the

need for medical experts to testify.

28

NEGLIGENCE : DIAGNOSIS &

TREATMENT

The Bolitho Qualification

“…But if, in a rare case, it can be demonstrated that the

professional opinion is not capable of withstanding logical

analysis, the judge is entitled to hold that the body of opinion is

not reasonable or responsible

. I emphasise that in my view it will

very seldom

 be right for a judge to reach the conclusion that

views genuinely held by a competent medical expert are

unreasonable.”

per Lord Browne-Wilkinson in 

Bolitho v City and Hackney Health

Authority

[1998] AC 232 at p 243C-D (English HL)

29

NEGLIGENCE : DUTY TO ADVISE

Decision of the Federal Court in 

Foo Fio Na v Dr Soo Fook

Mun & Anor

[2007] 1 MLJ 593 at p 611 (FC)

“… we are of the opinion that the 

Bolam Test has no

relevance to the duty and standard of care of a medical

practitioner in providing advice to a patient 

on the

inherent and material risks of the proposed treatment.”

“…we are of the view that the 

Rogers v Whitaker test would

be a more appropriate and a viable test 

of this millennium

then the Bolam Test.”

30

NEGLIGENCE : DUTY TO ADVISE

Decision of the High Court of Australia in 

Rogers v

Whitaker

(1992) 175 CLR 479 at p 490 (Australian HC)

"The law should recognise that a doctor has a 

duty to

warn a patient of a material risk inherent in the proposed

treatment

; a 

risk is material if

, in the circumstances of the

particular case, a 

reasonable person in the patient's

position, if warned of the risk, would be likely to attach

significance to it

 or if the medical practitioner is or should

reasonably be aware that 

the particular patient, if warned

of the risk, would be likely to attach significance to it

. This

duty is 

subject to the therapeutic privilege

.

“

31

NEGLIGENCE : DUTY TO ADVISE

What is “Material Risk”?

A risk is “

material

” if:

1.

in the circumstances of the case, 

a reasonable person

in the patient’s position

, if warned of the risk, would be

likely to 

attach significance

 to it or

2.

if the medical practitioner is or should reasonably be

aware that 

the 

particular patient

, if warned of the risk,

would be 

likely to 

attach significance 

to it

.

NB:

“Significance” not a matter of percentage or

likelihood of occurrence.

32

NEGLIGENCE : DUTY TO ADVISE

Recent Development: The decision of the Supreme Court in

Montgomery v Lanarkshire Health Board[2015] 2 All ER 1031

“The doctor is therefore under 

a duty to take reasonable care to ensure

that the patient is aware of any material risks involved in any

recommended treatment,

and 

of any reasonable alternative or variant

treatment

. The test of materiality was whether, in the circumstances of a

particular case, a 

reasonable person in the patient’s position

 would be

likely to attach significance to the risk, or the doctor is or should

reasonably be aware that the 

particular patient 

would be likely to attach

significance to it

.

The doctor is however 

entitled to withhold from the patient information as

to a risk if he reasonably considered that its disclosure would be seriously

detrimental to the patient's health

. The doctor is also excused from

conferring with the patient in circumstances of 

necessity

…”

33

NEGLIGENCE : DUTY TO ADVISE

Additional observations made in 

Montgomery

1.

Whether a risk is material is 

not resolved by reference

to percentages 

– fact sensitive.

Substantial risk 

≠

 Attach significance to the risk

2.

Doctors’ advisory role involves dialogue

Aim of dialogue – to ensure that patient understands

seriousness of condition, anticipated benefits and

risks of proposed treatment, reasonable alternatives:

Necessary for an 

“

informed decision

”.

3.

Therapeutic exception should not be abused.

34

NEGLIGENCE : DUTY TO ADVISE

Additional observations made in 

Montgomery

4.

Necessary to impose legal obligations –

“…so that even those 

doctors who have less skill 

or 

inclination for

communication, 

or who are more 

hurried

, are 

obliged to pause

and engage in the discussion 

of what the law requires.”

5.

An approach “..which results in patients being aware that the

outcome of treatment is uncertain and potentially dangerous and

in their taking the ultimate choice to undergo that treatment, may

be 

less likely to encourage recriminations and litigation in the event

of an adverse outcome

” than an approach that requires patients

to rely on their doctors’ decision whether the risk should be incurred.

35

NEGLIGENCE : DUTY TO ADVISE

Juristic basis of the approach in 

Montgomery

It,  “…is an approach to the law which, instead of

treating patients as placing themselves in the hands of

their doctors (and then being prone to sue their doctors

in the event of a disappointing outcome), 

treats them so

far as possible as adults who are capable of

understanding that medical treatment is uncertain of

success and may involve risks, accepting responsibility

for the taking of the risks affecting their own lives, and

living with the consequences of their choices.

”

Per Lord Kerr & Lord Reed in 

Montgomery v Lanarkshire Health

Board[2015] 2 All ER 1031 at p1052

36

NEGLIGENCE : CAUSATION

“…it would seem obvious in principle that the pursuer or plaintiff must

prove not only negligence or breach of duty but also 

that 

such fault

caused, or materially contributed to, his injury

and there is ample

authority for that proposition… both in Scotland and in England.”

Per Lord Reid in 

Bonnington Castings Ltd v Wardlaw [1956] 1 All

ER 615

at p 617-618

See also 

: 

Williams v Bermuda Hospital Board

 [2016] AC 888;

Nicholson

v Atlas Steel Foundry & Engineering Co Ltd [1957] 1 All ER 776,

McGhee v National Coal Board [1972] 3 All ER 108 and Wilsher v Essex

Area Health Authority [1988] 1 All ER 871, Dr. Soo Fook Mun v Foo Fio

Na & Anor and Another Appeal [2001] 2 CLJ 457, Hasan Datolah v

Kerajaan Malaysia [2010] 5 CLJ 764

37

NEGLIGENCE : CAUSATION

In 

Elizabeth Chin Yew Kim & Anor v Dato’ Ng Gim Huat & Other

Appeals 

[2017] 2 CLJ 274, the Court of Appeal cited with

approval a passage on causation from the judgment of the

Supreme Court of Canada in 

Clements v Clements 

[2012] 2 SCC

32 at para 14 :

“To recap, the 

basic rule 

of recovery for negligence is that

the plaintiff must establish on a balance of probabilities that

the defendant caused the plaintiff's injury 

on the "but for" test

.

This is a factual determination. 

Exceptionally

, however, courts

have accepted that a plaintiff may be able to recover 

on the

basis of "material contribution to risk of injury", without showing

factual "but for" causation.

”

38

NEGLIGENCE : CAUSATION

In 

Fairchild v Glenhaven Funeral Services Ltd 

[2003] 1 AC 32

, 

the House

of Lords approved of a 

modified approach

 to causation where

employees contracted Mesothelioma after working for a series of

employers dealing with asbestos. Applying the “but for” test, no single

employer can be said to have caused the risk of the disease.

“…by proving that the defendants individually 

materially increased

the risk

 that the men would develop Mesothelioma due to inhaling

asbestos fiber's, the claimants are taken in law to have proved that

the defendants 

materially contributed 

to their illness.”

Per Lord Rodger of Earlsferry in Fairchild v Glenhaven Funeral Services Ltd [2003]

1 AC 32 at 383 para 168

Note:

See also the difficult case of 

Chester v Afshar 

[2005] 1 AC 134

39

NEGLIGENCE : CAUSATION

Causation in 

failure to advise of risks

:

In 

Rosenberg v Percival 

[2001] 205 CLR 434, the High Court of Australia held

as follows:

“… causation, in the present kind of case, requires satisfaction of two

criteria.  The 

first criterion

is a breach of the duty to warn of a material

risk, that 

risk having eventuated and caused, in the physical sense, injury

to the patient

.  The 

second criterion 

is that, 

had the warning been given,

the injury would have been averted

, in the sense that the relevant

‘patient’ would not have had the treatment in question.”

(Emphasis added)

Per Gummow J in Rosenberg v Percival [2001] 205 CLR 434 at p 461.

See also 

Montgomery v Lanarkshire Health Board (General Medical Council

intervning) [2015] 2 All ER 1031, Bolam v Friern Management Committee

[1957] 2 AllER 118 at 112 H-I, Wallace v Kam [2013] HCA 19

40

NEGLIGENCE : CAUSATION

Causation in failure to advise of risks:

 “The test for causation where there has been a failure to warn a

patient of risks

…

The test is a subjective test

.  It is not decisive that a reasonable person

would or would not have undertaken the surgery…

…It follows from the test being subjective that the tribunal of fact must

always make a finding as to 

what this patient would have done if

warned of the risk

.  In some cases where there is no direct evidence as

to what the patient would have done, 

the judge may infer from the

objective facts that the patient would not have undergone the

procedure

.”

(Emphasis added)

Per McHugh J in Rosenberg v Percival [2001] 205 CLR 434 at page 443.

41

NEGLIGENCE : CAUSATION

Wrong Diagnosis cases



Dr did not cause the illness



Need for and type of treatment likely to be the same whether Dr

misdiagnosed or no.



Damages not recoverable for a 

reduction in the prospect (loss of

a chance) of a favourable outcome

Gregg v Scott 

[2005] 4 All ER 812 (HL)

Hotson v East Berkshire Area Health Authority

 [1987] 2 All

ER 909 (HL)

42

HOSPITALS

COMMON LAW BASES FOR LIABILITY

43

HOSPITALS

Hospitals

Non-delegable

Duty of Care

Vicarious

Liability

44

VICARIOUS LIABILITY

1.

Hospitals would almost invariably have to act

through the agency of their servants and/or

agents.

2.

However, note the case of 

private clinics

operated by sole proprietorships or partnerships

where there are both principals and agents.

45

VICARIOUS LIABILITY

The decision of the Federal Court in 

Dr Kok Choong Seng

& Anor v Soo Cheng & another appeal 

[2018] 1 MLJ 685

One of the questions of law posed was:

“Question 3:

Whether the criteria for imposing vicarious liability set out

by Lord Phillips in the decision of the Supreme Court of UK

in 

Various Claimants v Catholic Child Welfare Society and

others [2013] 2 AC 1 

and as further explained and

elaborated by the Supreme Court in 

Cox v Ministry of

Justice [2016] AC 660

and 

Mohamud v WM Morrison

Supermarkets plc [2016] AC 677 

applies in Malaysia?”

46

VICARIOUS LIABILITY

The answer:

“With these 

modifications,

we would adopt the

stage 1 test in Various Claimants

as elaborated

upon in Cox and answer the third question in the

affirmative in that respect.”

per Raus Sharif, CJ in Dr Kok Choong Seng & Anor v Soo Cheng

& another appeal 

[2018] 1 MLJ 685 

at para 90

47

VICARIOUS LIABILITY

The

 Various Claimants 

Test

per Lord Phillips in 

Various Claimants 

v Catholic Child Welfare Society  

[2012] UKSC 56

at para 35

Stage 1

Assesses the elements of the 

relationship

 between the

wrongdoer and the defendant 

to determine if it is an

employment or relationship “akin” to employment

.

Stage 2

Assesses the 

connection between the tortious act and

the relationship

.

48

VICARIOUS LIABILITY

The

 Various Claimants 

Test

Stage 1

5 features of an 

employment

 or one that is 

“akin to employment” 

:

1.

The 

employer is more likely to have the means to compensate 

the victim

than the employee and 

can be expected to have insured against that

liability

.

Would the private hospital have insured against the negligence of

an independent contractor not considered its employee?

2.

The tort will have been committed as a result of 

activity being taken by the

employee on behalf of the employer

.

Would an independent contractor obstetrician delivering his patient’s

baby be considered as conducting an activity on behalf of the

hospital?  Or is he carrying out his own private practice as an

obstetrician?

49

VICARIOUS LIABILITY

The

 Various Claimants 

Test

Stage 1

3.

The employee’s 

activity is likely to be part of the business activity of the employer

.

Is the  Obstetrician’s activity part of the business activity of the hospital or  is

it his private practice of medicine discrete from the business activity of the

hospital?

4.

The 

employer

, by employing the employee to carry on the activity will have 

created

the risk of the tort committed by the employee

.

Did the hospital engage the Obstetrician to practice obstetrics or did the

Obstetrician choose to practice of his own accord?

5.

The employee will, to a greater or lesser degree, have been under the 

control

 of the

employer.

Is the Obstetrician under the control of the employer or do they merely have

an arms length business relationship?

50

VICARIOUS LIABILITY

The

 Various Claimants 

Test

Stage 2

Concerns the nexus between the wrong done and the

relationship between the wrongdoer and the defendant.

•

Whether the wrong was committed 

“

in the course of

employment

”.

•

Whether the wrong was 

“so closely connected” 

with the

employment that it would be 

fair, just and reasonable to

hold the employer vicariously liable

.

51

VICARIOUS LIABILITY

Federal Court’s Modifications

•

“We first consider the test of relationships akin to employment at 

stage 1

.

The approach of considering 

multiple factors in addition to control 

in

determining a relationship of employment is 

consistent with the position in

Malaysia

.”

•

“While the element of 

control is no longer regarded as the sole 

or

determinative criterion, it 

remains an important factor

.”

•

“In applying the tests, courts should exercise their 

evaluative judgment 

to

ensure that ‘

defendants 

cannot avoid vicarious liability on the basis of

technical arguments

 about the employment status of the individual who

committed the tort

.”

•

“… while the 

availability of compensation

 may be a relevant

consideration, it 

does not in itself constitute the basis for imposing

vicarious liability.

”

52

NON-DELEGABLE DUTY OF CARE

The decision of the Federal Court in 

Dr Kok Choong Seng

& Anor v Soo Cheng & another appeal 

[2018] 1 MLJ 685

The first question of law posed was

Question 1

“Whether the doctrine of non-delegable duty of care

expounded in 

Woodland v Swimming Teachers Association

and other [2014] AC 537 

applies in Malaysia?”

53

NON-DELEGABLE DUTY OF CARE

The answer:

“… we see 

no reason why the doctrine of non-delegable duty should

not continue to be applied in Malaysia, and we consider the guiding

principles refined in Woodland as a useful starting point

. Nevertheless,

we hasten to stress that 

non-delegable duties impose more onerous

obligations

; it is worth reiterating the proviso in Woodland that 

such

duties should be imposed only where it is fair, just and reasonable to do

so based on the particular circumstances of the case

, and developed

incrementally from existing categories and consistently with underlying

principles. With this reminder, 

we answer the first question in the

affirmative

.”

per Raus Sharif, CJ in 

Dr Kok Choong Seng & Anor v Soo Cheng Lin &

another appeal 

[2018] 1 MLJ 685 at para 40

54

NON-DELEGABLE DUTY OF CARE

The 

Woodland 

Test

The 

“defining features” 

of a non-delegable duty of

care were identified by Lord Sumption in 

Woodland v

Swimming Teachers’ Association and 

others

[2014] 3

AC 537 at p 583

55

NON-DELEGABLE DUTY OF CARE

The 

Woodland 

Test

The 

“defining features” 

are where:

1.

The claimant is 

a patient

 or child or for some other

reason is especially 

vulnerable or dependent 

on

the protection of the Defendant against the risk of

injury.

56

NON-DELEGABLE DUTY OF CARE

The 

Woodland 

Test

2.

There is 

an antecedent relationship between the

claimant and the defendant

, independent of the

negligent act or omission itself:

(i)

which places the 

claimant in the actual custody,

charge or care of the Defendant

and

(ii)

from which it is 

possible to impute

 to the

Defendant the 

assumption of a positive duty to

protect the claimant from harm

.

57

NON-DELEGABLE DUTY OF CARE

The 

Woodland 

Test

3.

The 

claimant has no control over the defendant's

performance

 of those obligations.

4.

The 

defendant has delegated to a third party some

function which is an integral part of the positive duty

which the Defendant had assumed over the claimant

;

and the third party is exercising (for the purpose of the

function delegated to him), the Defendant’s custody or

care of the defendant and the element of control that

goes with it.

58

NON-DELEGABLE DUTY OF CARE

The 

Woodland 

Test

5.

The 

third party had been negligent

 in the exercise

of that delegated function.

per Lord Sumption in 

Woodland v Swimming

Teachers’ Association and others 

[2014] AC 537 at

p 583 para 23 

(English SC)

59

NON-DELEGABLE DUTY OF CARE

The Woodland Test: Key Issues

The test has several ingredients but the key ingredients

are whether in the factual circumstances it can be

said:

(i)

that the hospital had 

assumed “a positive duty to

protect the claimant from harm

” and

(ii)

the 

hospital had delegated 

some integral part of

its assumed 

duty to the independent contractor

.

60

NON-DELEGABLE DUTY OF CARE

Scenario 1

•

The private hospital provides A&E services.

•

Plaintiff rushes to the A&E department and is assisted by

the MO.

•

The hospital has a system whereby medical consultants

have a rota to be on-call.

•

MO calls the appropriate medical consultant on duty for

help.

•

Medical consultant was negligent and the plaintiff suffers

damage.

•

The medical consultants are all independent

contractors.

61

NON-DELEGABLE DUTY OF CARE

Scenario 2

•

Plaintiff goes to a private hospital.

•

Plaintiff registers and proceeds straight to Dr A’s

clinic for a consultation.

•

Dr A performs an out-patient procedure negligently

and the Plaintiff suffers damage.

•

Dr A is an independent contractor at the private

hospital.

62

NON-DELEGABLE DUTY OF CARE

Scenario 3

•

Plaintiff goes to a famous private hospital to consult

an Obstetrician

•

There are several Obstetricians in that hospital and

the plaintiff does not know who to consult.  She

enquires at the registration counter.

•

At the counter, plaintiff is told Dr X is available.

•

Plaintiff consults Dr X and is advised to be admitted

for observations. She signs an admission form with

terms.

63

NON-DELEGABLE DUTY OF CARE

Scenario 4

•

Dr X negligently fails to detect an abnormal

placental presentation.

•

Complication arises and plaintiff suffers damage.

•

Admission form signed by plaintiff discloses that

doctor is an independent contractor and hospital is

not liable for his negligence

64

NON-DELEGABLE DUTY OF CARE

Difference between non delegable duty of care and

vicarious liability.

Unlike vicarious liability, a non delegable duty of care

is first a 

duty of care imposed on the hospital

.

The hospital’s liability is 

not vicarious in nature

.

It is a breach by the hospital of a 

primary duty

imposed

 on the hospital.

65

THANK YOU