The Doctrine Non-Delegable Duty in Malaysian Health Care (Part 1)

Introduction

The recent case of Siow Ching Yee (Menyaman melalui isteri dan wakil litigasinya, Chau Wai Kin) v. Columbia Asia Sdn Bhd^[1] is a significant development in Malaysian medical negligence law. In a 4-1 majority decision, the Federal Court held Columbia Asia Sdn Bhd liable for breaching its non-delegable duty of care to the appellant. The court found that the hospital was responsible for ensuring the safety and proper treatment of its patients, even when services were provided by independent contractors. This ruling emphasizes the importance of the non-delegable duty in healthcare settings, indicating that hospitals cannot avoid liability by outsourcing services or classifying doctors as independent contractors. The Federal Court’s decision has implications for private healthcare providers, reinforcing the need for stringent oversight and accountability to ensure patient safety and care.

The doctrine of non-delegable duty was established in the landmark case of Dr Kok Choong Seng & Anor v. Soo Cheng Lin & Another Appeal^[2], as expounded in the English case of Woodland v Swimming Teachers Association And Others.^[3] However, in the case of Dr Kok, the hospital was found not liable as the features of non-delegable duty was not satisfied.

This article delves into the doctrine of non-delegable duty in the context of Malaysian healthcare law. In this first part, we will explore the landmark cases of Woodland v. Swimming Teachers Association and Others and Dr. Kok Choong Seng & Anor v. Soo Cheng Lin & Another Appeal, which established the basis for non-delegable duty. The second part will then focus on the more recent case of Siow Ching Yee and its implications for Malaysian healthcare providers.

2. THE DOCTRINE OF NON-DELEGABLE DUTY

WOODLAND CASE

In the landmark case of Woodland, the claimant was a student at a school for which the Defendant, Educational Authority is responsible. The school had swimming lessons as part of the national curriculum, during normal school hours. However, the pool in which the lessons were carried out at a pool which was run by another local authority. The swimming teacher and the lifeguard attended during the swimming lessons were not employed by the Defendant but, provided by an independent contractor. The claimant was injured during her swimming class.  The claimant brought an action against the Educational Authority on the ground that the Defendant was in breach of its non-delegable duty of care. The High Court dismissed the claimant’s claim against the Educational Authority and the claimant appealed to the Supreme Court. The Supreme Court unanimously allowed the appeal on the ground that the Educational Authority owed non-delegable duty of care to the claimant.

            The Supreme Court in deciding against the Educational Authority made it clear that non-delegable duty of care is a personal duty as opposed to vicarious liability. The court establishes that there is no single theory to explain non-delegable duty. However, there are two broad categories wherein the first category arises when a defendant engaged a contractor to perform an activity that is inherently hazardous or extra-hazardous activity or operation and as for the second category, Lord Sumption after analysing and recognising the principles expounded in the cases of Gold v. Essex County Council[4] and Cassidy v. Ministry of Health (Fahrni, Third Party[5]) as well as Australian jurisprudence, identified 5 defining features or characteristics upon which non-delegable duty of care can be imposed :-

• ‘The claimant is a patient or a child or especially vulnerable or dependent on the protection of the defendant against the risk of injury.

• The existence of an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself.

• Which places the claimant in the actual custody, charge or care of the defendant and:

• From which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm and not just a duty to refrain from conduct which will forseeably damage the claimant,

• The claimant has no control over the performance of the defendant whether the defendant performs his obligations personally or through employees or third parties.
• Delegation of an integral part of the positive duty by the Defendant to a third party in which the third party is exercising the defendant’s custody and care of and control over the defendant.
• Negligence on the part of the third party in the performance of the very function assumed and delegated to him by the Defendant.’

After establishing the abovementioned framework, Lord Sumption applied the same to the facts of Woodland case and held that the Education Authority owed the claimant a non-delegable duty as the education authority assumed a non-delegable duty to ensure the safety of the claimant during the swimming classes by whomever they entrusted the duty. Further, His Lordship classified the teaching of swimming lesson as an integral part of the school’s function which duty had been delegated to a contractor who was negligent in performing that very function. The school’s teaching function was delegated to the contractors together with the control over the claimant and the negligence had occurred in performing those very functions that had been assumed by the education authority as an obligation to perform. Thus, the school is liable to the claimant for breach of its non-delegable duty. However, Lord Sumption further stated that in imposing non-delegable duty on defendant, courts must evaluate the facts and impose such only if it is fair, just and reasonable to do so. As a saving clause, Lady Hale, who sat together with Lord Sumption categorically emphasized that the boundaries within which the imposition of the responsibility should take place must be ascertained on a case by case basis.

According to Lord Sumption, non-delegable duty arises from an assumption of responsibility attributed to the defendant due to a special relationship between the claimant and the defendant. Even though assumption of responsibility applicable in determining the scope of a duty of care in other claims for negligence, Lord Sumption observes that non-delegable duty imposes more onerous obligation than just a positive duty on the Defendant.

3. NON-DELEGABLE DUTY IN MALAYSIA

DR KOK CHOONG SENG CASE

In Dr Kok’s case, the plaintiff had a lump at his left forearm and consulted Dr Kok in his private clinic. Dr Kok advised the plaintiff to undergo an operation to remove the lump. Dr Kok then wrote to the hospital to admit the plaintiff and to use medical facility to perform the surgery. The surgery was performed at the hospital and the plaintiff was discharged from the hospital on the same day. The plaintiff thereafter had pain and numbness at the area of his operated forearm and he complained the same to Dr Kok. The plaintiff was then referred to one Dr Ranjit by Dr Kok and after examining the forearm, the plaintiff was diagnosed as having lost 6cm or 90% of his left median nerve. The plaintiff underwent a microscopic reconstruction of the left median nerve using a nerve graft from his left leg. The plaintiff brought an action against Dr Kok and the hospital. The High Court allowed both the appeals and held that the hospital owed non-delegable duty of care to the plaintiff to ensure that care was taken, a duty which was described as ‘a kind of vicarious liability’. The hospital then appealed against the decision of the high court. However, the Court of Appeal dismissed the appeal. Hence, the Federal Court appeal was filed by the hospital. The decision of the Federal can be divided into four as follows :-

• Determination on the applicability of the features set out in Woodland case in Malaysia.
• An analysis on the development of common law in imposing non-delegable duty on hospital.
• An analysis of the legislation regulates private hospitals in Malaysia in order to determine whether common law approach of non-delegable duty is applicable in Malaysia.
• Application of the features of non-delegable duty to the case.

An examination of the features of non-delegable duty established in the case of Woodland and the determination on the applicability of the same in Malaysia.

The features of Woodland have already been explained above. The Federal Court in no uncertain terms determined that the features of non-delegable duty as expounded by Lord Sumption in the case of Woodland apply to Malaysia[6].

An analysis on the development of common law in imposing non-delegable duty on hospital

The Federal Court explained the traditional view that hospitals do not undertake a duty to treat patients rather, hospitals only procure the services of surgeons and other medical professions. Hospitals serve as medical facilities providers and the medical professionals are not servants of the hospitals as they act as independent contractors. Thus, hospital cannot be held liable for the negligent act or omission of those professionals as long as the hospital has taken due care in selecting the professional and provides the medical facilities at their disposal[7].

According to the Federal Court, the current common law has departed from the traditional view to a broader scope of duty of care by hospitals to the patients. The court then explored English cases[8] in order to demonstrate how English courts have taken broader approach to widen the scope of duty of care imposed on the hospitals from administrators, providers of proper facilities and selection of the staffs to treatment of patients with reasonable care which cannot be discharged by way of delegation[9].

An analysis of the legislation regulates the private hospitals in Malaysia

It was the contention of the counsel for the Hospital that English cases are inapplicable and distinguishable with the position in Malaysia with regard to private hospitals on the ground that a different legislative regime is in place which applies to private hospitals in Malaysia. The counsel for the Hospital referred the court to the Private Healthcare Facilities and Services Act 1998, Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 and argued that the legislative interpretation of private hospitals is as mere service providers of facilities and not for medical treatment. However, the Federal Court after perusing through the Act and Regulations, concluded[10] that “the relevant legislation does not warrants the interpretation put forward by the Hospital but on the contrary envisages that the function of private hospitals includes generally the ‘treatment and care of persons who require medical treatment or suffer from any disease’ and considers that services of medical practitioners as part of that function”[11]. Accordingly, the Federal Court applied the principles of Woodland to the case.

The application of the features of non-delegable duty 

The most interesting part in the case is that the hospital was found not liable to the Plaintiff as only the first 2 features of the non-delegable duty were satisfied. As for the first feature, the Federal Court decided that the Plaintiff was vulnerable and dependent on the hospital’s protection from any risk of injury as he was admitted and underwent an operation at the hospital[12]. In respect of the second feature, the Federal Court stated that the Plaintiff was in fact in the actual custody, charge and care of the hospital[13]. As for the third feature, the Federal Court examined the circumstance of the relationship between the Plaintiff and the Defendant in order to determine as to whether there was a possibility to impute an assumption of a positive duty by the hospital towards the Plaintiff to protect the latter from the harm that had been caused[14]. In this respect, the court viewed the fact that the Plaintiff had consulted Dr Kok for an initial consultation before the operation and subsequently for follow up appointments at Dr Kok’s private clinic, as an essential fact in imputing an assumption of responsibility. The negligence was on the part of Dr Kok in performing the operation and the hospital was not negligence in selecting the medical practitioner to treat the Plaintiff.  The Federal Court also stated that non-delegable duty is imposed based on assumption of responsibility and not on relative resources or vested interest or the terms of the relationship between the defendant and the person to whom the duty is delegated. The Court further held that the Plaintiff was aware and reasonably expected that the operation was to be conducted by Dr Kok with due care. The hospital was only providing the relevant medical facilities required by Dr Kok to perform the operation which duty was not breached by the hospital at any stage. As such, the court found that the hospital could not have assumed a positive duty to protect the Plaintiff from the injury caused by Dr Kok. The court then demonstrated a hypothetical situation where a patient enters into a hospital and he was then referred to a medical practitioner. According to the court, the hospital would have assumed a positive duty to protect the patient from any injury by the doctor suggested by the hospital. Finally, the court decided that since the 2^nd element of the third feature had not fulfilled, the other features of the non-delegable duty did not arise.

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[1] [2024] 4 CLJ 173
[2] [2017] 10 CLJ 529
[3] [2014] AC 537
[4] [1942] 2KB 293
[5] [1951] 2 KB 343
[6] Paragraph [40] of the judgement, Page 552
[7] Paragraph [46] of the judgement, Page 554
[8] Gold v Essex County Council [1942] 2 KB 293; Cassidy v. Ministry of Health [1951] 2 KB 343; Roe v. Ministry of Health [1954] 2 QB 66; X (Minors) v. Bedfordshire County Council [1995] 2 AC 633.
[9] Paragraph [47] to [55]of the judgement, Pages 554 to 556
[10] Paragraph [60] of the judgement, Page 557
[11] The Federal Court in the case of Dr Kok further held that ‘The notion that the duty of a hospital is confined only to its facilities and staff selection has long been rejected in the common law. Such a notion is also incongruent with societal expectations of private hospitals as healthcare providers; most patients do not perceive hospitals as providers of all the utilities and backup services except medical treatment. Adopting Lord Greene’s formulation, it is precisely medical treatment that patients expect when they knock on the door of the hospital’.
[12] Paragraph [63] of the judgement, Page 557
[13] Paragraph [64] of the judgement, Page 557
[14] Paragraphs [64 to [68] of the judgement, Page 557 to 558

This article is written by 

Kokilah Kanniappan
Senior Associate, Low & Partners