1. It is well accepted that a doctor has a duty of care to his patients and he will be liable in negligence if his treatment is below standard and his patient is injured. Other parties may have liability as well. A doctor’s treatment of a patient may have taken place at a hospital, day procedure centre (“DPC”) or a doctor’s clinic. In what circumstances will that hospital, DPC or clinic also have liability to the patient?

2. The principle of vicarious liability is an old one developed at common law and arises from the relationship between the doctor and the hospital, DPC or clinic. Vicarious liability arises where a doctor is employed by a hospital, DPC or clinic and the doctor committed the wrong (the medical negligence) in the course of his employment. There may be no previous relationship between the hospital, DPC or clinic and the patient. The well established requirements for vicarious liability are that the doctor was employed by the hospital, DPC or clinic, the doctor had committed a tort (the medical negligence) and the doctor had committed that tort in the course of his employment by the hospital, DPC or clinic. There is no vicarious liability for a tort committed by an independent contractor performing services for a hospital, DPC or clinic (but see below).

3. In respect of liability for acts committed in the course of employment, an employer may be liable for acts which are not authorised if they are so connected with the acts that have been authorised, they may be regarded as modes, even if improper, of doing them. If the wrongful act takes place as an incident of the performance of the authorised act, it would be treated as in the course of employment (even if it is specifically forbidden by the employer).

4. The scope of vicarious liability in a narrow range of cases has been extended by the Courts in the UK where the relationship is not that of employer and employee or where the wrongful acts are not in the course of employment. A case in the Supreme Court in the UK in 2012 considered a claim for child abuse carried out by a lay preacher in the service of the Christian Brothers. Lay preachers were not employed by the Christian Brothers but had given an oath to them. The Christian Brothers were found liable to the victims for the lay preacher’s abuse because the Court held the relationship between the lay preachers and the Christian Brothers was even closer than that of employer and employee.

5. In another case, a female catering manager in a prison was injured when an inmate dropped a sack of rice on her. Her claim against the Ministry of Justice was initially dismissed on the basis the inmate was not an employee, but succeeded when the Supreme Court held inmates working in kitchens were integrated into the operation of the prison with a risk they may commit negligent acts. The Ministry of Justice was found liable.

6. However, UK Courts have resisted other attempts to expand the doctrine. In another case, a self-employed doctor conducted medical examinations for bank employees. He was paid a fee for each report and was not kept on retainer. Following his death, a group of bank employees came forward claiming that the doctor had assaulted them during the examinations. The bank was successful in appealing to the Supreme Court on the basis that the doctor was an independent contractor and not an employee. The Supreme Court agreed.

7. In William Morris Supermarkets v Various Claimants, an employee with a grudge loaded payroll data for the supermarket’s entire workforce to a public file sharing website. Some affected employees brought proceedings against the supermarket. The Supreme Court held the employee was not engaged in furthering the supermarket’s business but in a personal vendetta and that was not a basis for imposing vicarious liability.

8. In the most recent case in Hong Kong, a supermarket store manager was injured during goods delivery by an independent contractor. The Court refused to expand the law to impose vicarious liability on the supermarket for the independent contractor’s actions.

Non-delegable duty of care

9. However, there is another route to liability for hospitals, DPCs and clinics and this is via the concept of a non-delegable duty of care. Previously, Courts had found it difficult to apply the doctrine of vicarious liability to medical professionals, as hospitals cannot control the manner in which medical professionals exercise their professional skills (such control being an important element of the concept of vicarious liability).

10. In a Court of Appeal case in 1942 in the UK, a hospital authority was held liable for the negligence of its employee radiographer, the majority finding liability on the ordinary principles of vicarious liability. It was also argued that it is the duty of the hospital authority to take reasonable care in the treatment of a patient and they are responsible for the failure of servants to perform the duty properly.

11. In Cassidy v Ministry of Health, the Ministry was held liable for the negligence of the doctor and house surgeon in their employment at a hospital. Lord Denning held that where a person is himself under a duty to use care, he cannot evade his responsibility by delegating the performance of it to someone else, whether to a servant under a contract of service or to an independent contractor under a contract for services.

12. In Woodland v Essex County Council, a child was injured at a swimming pool lesson, alleged to be caused by the negligence of an independent lifeguard. The school was found to be in breach of a non-delegable duty of care.

13. There is therefore the possibility that a hospital, DPC or clinic may be liable for injury caused by the negligence of a doctor, even if that doctor is providing his services as an independent contractor.

About Us

Howse Williams is a leading, full service, Hong Kong law firm. We combine the in-depth experience of our lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; trusts and wealth preservation; wills, probate and estate administration; property and building management; banking; fraud; distressed debt; investment funds; virtual assets; financial services/corporate regulatory and compliance.

As an independent law firm, we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice. Please contact [email protected] if you have any questions about the article.