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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> JS v Lothian Health Board [2009] ScotCS CSOH_97 (01 July 2009) URL: http://www.bailii.org/scot/cases/ScotCS/2009/2009CSOH97.html Cite as: [2009] ScotCS CSOH_97, 2009 SLT 689, [2009] CSOH 97, 2009 GWD 23-377 |
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OUTER HOUSE, COURT OF SESSION
[2009]
CSOH
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A519/00
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OPINION OF LADY STACEY
in the cause
Pursuer;
against
LOTHIAN HEALTH BOARD
Defenders:
ญญญญญญญญญญญญญญญญญ________________
|
Pursuers: Dunlop, Q.C. ; Soutar; Messrs Allan McDougall
Defenders: Crawford, Q.C.; CLO, NHS Scotland
1st July 2009
[1] This is
an action for damages by in respect of loss, injury and
damage which the pursuer claims to have suffered due to negligence in her
ante-natal care in 1994.
[2] I heard a procedure roll debate. Miss Dunlop for the pursuer tendered a minute of amendment which sought to delete the second pursuer (who had already abandoned his case) and to delete Lothian Primary Care NHS Trust as a defender. The minute of amendment thereby left Lothian Health Board as the defenders. I understood this was required as a result of changes in the organisation of the Health Service. There was no objection on behalf of the defender. I allowed the record to be amended and found no expenses due or by either party in respect of it.
Background
[3] The pursuer gave birth to her son on 6 February 1995. He suffers from
cystic fibrosis. Had she been told that the foetus had cystic fibrosis,
she would have terminated the pregnancy. She was not so advised and seeks
reparation in respect of negligence which she alleges on the part of those
attending to her ante-natal care. There are difficult questions about damages
in this situation. It was agreed by both parties that these questions be left
over and the procedure roll before me was a discussion of the duties which the
defenders owe or do not owe to the pursuer.
[4] In July 1994, the pursuer, being pregnant, was referred by her GP to Dr Farquharson, Consultant Obstetrician at the Eastern General Hospital, Edinburgh. In common with other women so referred, she was sent a leaflet prior to her attendance headed "Cystic Fibrosis Carrier Testing for Couples." This leaflet is referred to on record and was produced by Miss Dunlop on the day of the debate. There was no objection and I allowed it to be lodged. The leaflet has no indications on it of its authorship. It sets out a number of questions and answers beginning by explaining what cystic fibrosis is. It goes on to explain that in Britain one person in twenty five has a single cystic fibrosis gene, which is harmless. If a man and woman each carry such a gene, there is a one in four chance that any baby they have will have cystic fibrosis. It is said that this happens to one in six hundred couples. The next two questions and answers are in the following terms:-
"What do I do if I would like to be tested?
We can test to see if you and your partner are cystic fibrosis carriers. At the Ante-Natal Clinic we will take a mouthwash sample from you. With your appointment literature, you will find one specimen container. This is for your partner's mouthwash sample. Please ask him to write his name and date of birth clearly on the container. To give a mouthwash sample, half fill the container with tap water, swill the water several times around the mouth, and spit back into the container. Please bring your partner's mouthwash sample with you to the Clinic.
At the laboratory, the female sample will be tested first. If this is negative (you do not carry a cystic fibrosis gene), the male sample will not be tested. The result will be recorded as COUPLE NEGATIVE. If the female sample is found to be positive (you do carry a cystic fibrosis gene), the male sample is then tested. If this is found to be negative, the result is then recorded as COUPLE NEGATIVE. If however both female and male samples are found to be positive, the result will be recorded as COUPLE POSITIVE.
This test can identify 85% of cystic fibrosis carriers and we can then give you a negative or a positive result. If the result is positive we will contact you within 10 days.
What happens next?
If you and your partner are both found to carry a single
cystic fibrosis gene, you will be offered genetic counselling which will
give you much more information about the disease. You will be offered
amniocentesis or chorionic villus sampling which can tell for certain if the
baby has cystic fibrosis. If the result does show that the baby is going
to have the disease, you make may wish to
consider termination of pregnancy."
[5] Thus it can be seen that the leaflet was sent to the pursuer before she went for her first appointment at the hospital (the booking appointment) and that it invited her to bring her partner's mouthwash sample with her if she wanted to be tested. The leaflet explained that in the case of a positive result, she would be offered genetic counselling and further testing with a view to finding out for certain if the foetus had cystic fibrosis. In that event, it is stated that she may wish to consider the termination of the pregnancy. There is nothing in the leaflet about who will carry out the analysis of the mouthwash sample.
[6] The
pursuer attended for her appointment and gave her own mouthwash sample. It was
sent to the Western General Hospital, Edinburgh for testing. She was advised that it was negative. The pregnancy
proceeded and her son was born, suffering from cystic fibrosis. His CF
genotype is D508/DF508. She carried the cystic fibrosis mutation DF508 on
one chromosome, as did her partner. That being so, there was a significant
risk that a child born to them would develop cystic fibrosis. The
sample she gave demonstrated a positive result; it was a poor
quality sample, however, and should have
been repeated.
[7] The
defenders admit that the pursuer was referred to the Eastern General Hospital, Edinburgh and that a mouthwash sample was taken at the booking appointment.
They admit that it was reported to her as negative; ; that
the pregnancy continued and that a boy was born who suffers from
cystic fibrosis. The geno-type and the cystic fibrosis mutation are
admitted. The leaflet is referred to for its terms. The pursuer's view on
termination is not known and not admitted. There follows a general denial.
The defenders then aver that the cystic fibrosis screening test was
carried out as part of a research study by the Human Genetics Unit of the University of Edinburgh, led by Professor Brock. The study was carried out on samples
obtained by the Eastern General Hospital. The screening was not funded by the Health Board nor by the NHS
Trust then responsible for the Eastern General Hospital. It was carried out by an
employee of the University of Edinburgh, one Richard Axton.
Mr Axton was employed by the University of Edinburgh. The
Human Genetics Unit was geographically located in premises at the Western General Hospital. In reply to averments about certain employees, the defenders aver
that their employees, including Dr Warner and Annette Gilfillan were
prevented by Professor Brock from having involvement in the study.
Annette Gilfillan carried out research testing of samples obtained at the
Simpson Memorial Maternity Pavilion. Those tests were not part of the Eastern General Hospital study.
The result of any screening test carried out on patients at the Eastern General
Hospital were sent by the Human Genetics Unit to the Eastern General Hospital
for onward transmission to those participating in the screening test.
[8] The pursuer avers that her loss, injury and damage was caused or materially contributed to by the fault of the scientist or scientists who analysed her saliva sample, in the course of their employment. She avers that it was their duty to show the standard of care of scientists of ordinary competence acting with ordinary care and skills. It was their duty to reject any sample of insufficient quality to be reported and separately it was their duty to note the appearance of a faint positive result. It was their duty to conduct a repeat sample. It was their duty not to report that the sample she gave was negative. In these duties they failed.
[9] The defenders' reply to those averments is that there are certain duties of care incumbent upon the scientist or scientists who analysed the pursuer's saliva sample. They aver however that they, the defenders, are not responsible for any acts or omissions on the part of the scientist or scientists under the explanation that they, the defenders, did not employ the scientist or scientists. They were not responsible for the study.
[10] The pursuer goes on to aver that the defenders had a duty to provide the pursuer with ante-natal care, including testing, of the standard of ordinarily competent doctors and scientists, acting with ordinary skill and care. She avers that in the respect set out above she did not receive care of such a standard and thus the defenders are liable to her. The defenders deny these averments.
[11] The
factual averments made by the pursuer in response to the defenders averments
about Mr Axton are to the effect that in July 1994 the research study
referred to was finished. The testing was continuing because obstetricians in Edinburgh, employed by the NHS by the
various hospitals where ante-natal care was provided, had requested that it be
carried on in view of its usefulness. The pursuer avers that between 1993 and
1997, Professor Brock was head of the department where the pursuer's
sample was tested. Within that department at the Western
General Hospital there was a team comprising employees of the defender, headed by
Dr Warner and including Annette Gilfillan. This team conducted
diagnostic testing, not ante-natal testing. There was also a research team,
headed by Professor Brock, carrying out ante-natal testing work. This
team included Richard Axton, a clinical research scientist.
Annette Gilfillan had worked for Edinburgh University, and
for Professor Brock, until 31 March 1993. She then transferred to the employment of the defenders and
continued to carry out cystic fibrosis ante-natal testing for
Professor Brock on samples from women who had attended the Simpson
Memorial Maternity Pavilion. From 1998 the ante-natal testing service was
run by carried
out by University of Edinburgh employees.
[12] It can be seen from the pleadings therefore that the issue
between the parties is whether the defenders owed a duty of care to the pursuer
in respect of the laboratory analysis of the sample taken for the purpose of
testing for cystic fibrosis and what the scope of any such duty was.
Defender's
submissions
[13] Miss Crawford moved me to sustain
the defenders' first plea in law, and dismiss the action. She submitted that
there was no averment that the analysis of the sample was carried out by an
employee for whose actings and omissions the defenders were responsible. The
test was done as part of a research study which was not funded by the Health
Board and was not carried out by an employee of the defenders. The defenders
were not responsible for the research study. The defenders aver that they had
no responsibility for the funding of the tests and this is not disputed by the
pursuer. The pursuer avers that the defenders had a duty to provide ante-natal
care including testing at the standard of a competent doctor or scientist.
Thus they are claiming that the basis on which the defenders are liable to the
pursuer is that they have a direct duty to the pursuer, not simply to take care
in ante-natal care, including testing, but a duty to ensure that care is in
fact taken. The proposition for the pursuer is that the defenders are
personally and directly responsible for care, including testing. Thus the
pursuer must argue that the defender is directly responsible for ensuring that
an independent scientist exercises reasonable skill and care in analysing the
sample. The case of fault goes far further than saying, for example, that the
defender is under a duty to take care that the scientists it uses are
reasonably skilled. On the contrary, the pursuer claims that the duty extends
to ensuring that the scientist does exercise reasonable skill. Miss Crawford
submitted that such a duty is not relevant. It is not relevant to aver that
the defenders have responsibility for fault of an independent professional
person carrying out analysis. In essence the pursuer is seeking to prove that
the defenders were under a non-delegable duty of care, or had a direct duty of
care to the pursuer, that duty being a duty to analyse the sample with reasonable
care and skill. The person who carried out the analysis was not someone whom
the defenders had employed to do so either under a contract of service or under
a contract for services. If the defenders are wrong in their submission that
such a duty does not exist as a matter of law, then Miss Crawford
submitted that there are not enough averments to enable the court to hold that
such a duty relevantly arises in these circumstances. She argued that the cases
to which I refer below show no binding authority that the duty does extend in
this way.
[14] Miss Crawford
argued that in general the defenders, as employers, are not liable for the acts
and omissions of an independent contractor in carrying out work instructed by
the employer. She accepted that there are exceptions to this and that in
certain situations an employer may be subject to a primary liability for acts
or omissions of an independent contractor. A familiar example arises where
there is liability on the employer because he owes a non-delegable duty to his
employees to take care regarding a safe system of work and premises. She made
reference to the text book Clerk & Lindsell at paragraphs 6-52
and 6-53. She argued that liability under a non-delegable duty was not the
same as vicarious liability for the acts of an employee. A non-delegable duty
could be described as a personal duty on the employer. Miss Crawford
referred to the case of McDermid v Nash Dredging & Reclamation Co
Ltd [1987] 1 AC 906. In that case the plaintiff was employed by the
defendants as a deckhand working on board a tug owned by a Dutch Company and
under the control of a Dutch Captain employed by them. The plaintiff was
injured as a result of an accident caused by the Captain failing to adhere to a
pre-arranged system. It was held by the House of Lords that the defendants
owed the plaintiff a duty of care to devise a safe system of work for him and
to see that the system was operated. The Captain's negligence in not operating
the system had been central to the operation of the system; the defendants
duty of care was non-delegable in the sense that they were personally liable
for its performance and could not escape their liability if it was delegated
and not properly performed. In the speech of Lord Brandon of Oakbrook at
page 919 he set out the essential characteristic of a non-delegable duty
in the following way:-
"The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation, the employer is liable for the non-performance of the duty."
The question in this case is whether the defenders had such a duty to the pursuer in the carrying out of the analysis in testing for cystic fibrosis.
[15] Miss Crawford submitted that the argument against the defenders may be that they accepted primary responsibility for the pursuer in her ante-natal care. If the pursuer were to seek to argue by analogy from the decision in the case of McDermid v Nash then Miss Crawford would argue that the responsibilities accepted by the defenders in the present case do not include the responsibility to ensure that the samples were analysed with reasonable care and skill. Miss Crawford submitted that the decision as to whether a duty exists at common law depends on the facts and circumstance of each case. She accepted that the categories of non-delegable duty are not closed. She noted, as an example, the case of Rodgers v Knight Riders [1983] RTR 324 in which the Court of Appeal found that the defendants, who operated a mini-cab service, were liable for the negligence of one of their drivers despite the fact that the driver was an independent contractor. This was so because the defendants had held themselves out to the general public as a mini-cab firm and had undertaken to provide a mini-cab for the claimant. Thus in the current case, whilst she made no concession, Miss Crawford submitted that there may have been a non-delegable duty to take reasonable care in the organisation of a regime for its patients.
[16New para
and renumber.] In the case of Farraj v Kings Healthcare Trust and another [2008] EWHC 2468
(QB) a similar situation arose. The claimants were parents of a
child born suffering from an inherited blood disorder known as BTM. The
family lived in Jordan, where
the birth took place. The first defendant 'KCH' undertook
genetic testing of a sample provided from Jordan and the second defendant, 'CSL' cultured the sample. The testing by KCH was done pursuant
to a contract with the Jordanian government. CSL contracted with KCH to undertake the
culturing. Due to a lack of communication
between the defendants a report was provided by KCH to the effect that the
foetus would not suffer BTM. That was wrong. Proceedings
were served on KCH who in defence averred that the culturing of cells was the responsibility
of CSL, for whom KCH had no
legal responsibility. The claimants then averred that the
duty owed to them by KCH was non delegable so that in so far as failure might
rest with CSL, KCH was
nonetheless liable for it. The argument for the claimants is
set out in paragraphs 44 and 45. The starting point was the observation
of Lord Browne Wilkinson
in X v Bedfordshire County Council
[1995] 2 AC 633 at 740:
'It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of staff is himself in breach of a separate duty of care owed by him to the plaintiff...'.
It was argued that
there is no difference in tort when a laboratory is offering clinical services
and subcontracts part of the work to a separate organisation. Counsel
sought to find support in the analysis by Lord Phillips M. R.
in A v Ministry of Defence [2005] QB 183. . However
the court in the Farraj case noted that the court in A v
Ministry of Defence rejected that argument because the Ministry had no
control over what occurred in the hospital which had care of the patient. The
decision in Farraj was that the claimants had not established the
existence of a non delegable duty on KCH. CSL were independent subcontractors, and KCH were entitled to rely on
their expertise. This was an application of the
ordinary principles governing independent sub contractors. Miss Crawford
argued that the present case was on all fours with Farraj.
[17new
paragraph and renumber] Counsel
then addressed the case of A v The Ministry of Defence
[2005] QB183. This case related to negligence in childbirth. The mother was
the wife of a serving soldier, living in Germany. The baby was delivered by a German obstetrician in a German hospital.
The baby was born in 1998. Before 1996 the Ministry of Defence had provided
servicemen and their dependants living in Germany with hospital treatment in British Military Hospitals staffed by
Ministry employees. After 1996 the Ministry closed its hospitals and
contracted with an English NHS Trust for that Trust to arrange for designated
German hospital providers to provide secondary healthcare for servicemen and
their dependants in German hospitals. It was accepted at trial that the
defendants, the Ministry of Defence, were not vicariously responsible for the
negligent acts or omissions of the doctors in the German hospitals. The
question before the court was whether the Ministry of Defence had a personal
duty to exercise reasonable care in provision of medical services, which duty it
could not delegate. The court found that in the circumstances in 1998, the
Ministry had no control over the environment in which the child suffered injury
at birth and it therefore did not owe a non-delegable duty at common law to
ensure that mother and child were provided with medical treatment that was
administered with proper skill and care. Thus, the mother would be obliged to
raise any action against the German hospital. Miss Crawford made
reference to the opinion of Lord Phillips, M.R. at paragraph 29, in which
his Lordship set out the general rule that a defendant will be liable for the negligence negligent act
of a servant committed in the course of his employment but not for the
negligent act of an independent contractor. He recognised that there are cases
in which an obligation may be imposed on a person to ensure that an act is done
and done carefully in which case that person cannot rely on the fact that the
work is done by an independent contractor as a defence. The difficulty is to
identify the circumstances in which such a duty is imposed. At
paragraph 32 he said:
"Those responsible for the operation of a hospital offer a medical service to those whom they accept for treatment. Some of the authorities recognised that this acceptance for treatment carries with it personal positive duties to the patient which cannot be discharged by delegation. It is important at the outset to distinguish between four types of duties.
(1) a duty to use reasonable care to provide access to hospital care.
(2) a duty to use reasonable care to ensure that the hospital staff, facilities and organisation provided are those appropriate to provide a safe and satisfactory medical service for the patient. This is an organisational duty.
(3) a duty to ensure that the treatment administered by the hospital to the patient is administered with a reasonable skill and care. This duty will be broken if one of the hospital staff, however competent, commits an isolated act of negligence in the treatment of the hospital.
(4) a duty to ensure that the patient comes to no harm while in the hospital. This is a duty that amounts to a guarantee that the patient will receive the appropriate treatment. It will be broken if there is as failure to administer the appropriate treatment, even if this does not involve negligence on the part of anyone".
[186] The
court found that there was no non delegable duty in the circumstances of the
case.
Miss Crawford argued
that this was persuasive in deciding the present case. [197] Miss Crawford
then considered a trilogy of cases starting with Gold v Essex County
Council [1942] 2 KB 293, moving to Cassidy v The
Ministry of Health [1951] 2 KB 343 and ending with Roe v Ministry
of Health [1954] 2 QB 66. In these three cases, which span the
introduction of the National Health Service in 1948, the position of doctors in
providing health care was considered. The history of changing conditions in
the provision of health care can be seen. In Gold, decided in 1942, it
was established that a local authority carrying on a public hospital owes a
patient a duty to nurse and treat him properly and is liable for negligence, even
though the negligence arises from a servant who is engaged on work involving
the exercise of professional skills. The authority was found liable to the
plaintiff for the negligent act of a radiographer who was a full-time employee.
Lord Greene M. R. analysed the
law of England as it then stood
and could find no reason why the authority responsible for running a hospital
would not be liable for negligence on the part of skilled persons such as a
radiographer employed there full-time. The context of his judgment was that of
its time, when consultant physicians and surgeons were not regarded as
employees of hospital boards (many of which were charities) and therefore were
not persons for whom the boards had vicarious liability; nor were their
activities carried out by them on behalf of the boards in any sense. In his
judgment however, Lord Greene M.R. found the full-time employed
radiographer to be in a different position. Goddard L J found that the
authority liable for those properly described as its servants, which included
many and varied professional people such as nurses, radiographers, accountants
and engineers. Doctors were at that time still in a different category. The
case of Cassidy v Ministry of Health was decided in 1951. The
plaintiff suffered loss injury and damage due to the negligence of a house
surgeon and other medical staff all of whom were employed under contracts of
service. The Ministry was found liable. Somervell L.J.
found that the doctors who had treated the plaintiff were employed under
contracts of service, notwithstanding that they were skilfully qualified persons.
Singleton L.J. agreed. Denning L.J. said:
"In my opinion, authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the self same duty as the humblest doctors; whenever they accept a patient for treatment they must use reasonable care and skill to cure him of his ailment. The hospital cannot of course do it by themselves. They have no ears to listen through the stethoscope and no hands to hold the surgeon's knives. They must do it by the staff which they employ; and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him...the reason why the employers are liable in such cases is not because they can control the way in which the work is done - they often have not sufficient knowledge to do so - but because they employ the staff and have chosen them for the task and have in their hands the ultimate sanction for good conduct, the power of dismissal."
[2018] Thus
it can be seen that Denning L.J. did not hold that liability depended on
whether the work was carried out under a contract of service or a contract for
services. He said:
"I take it to be clear law, as well as good sense, that where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services."
Of the particular plaintiff in the case his Lordship said:
"The plaintiff knew nothing of the terms in which they employed their staff; all he knew was that he was treated in the hospital by people whom the hospital authorities had appointed."
[2119] In
the case of Roe, decided in 1954, the authority running the hospital was
found liable for the negligence of an anaesthetist. Denning L.J. held
that authorities would be responsible for doctors who worked at the hospital
unless the doctor was engaged by the patient himself.
[220] Miss Crawford
argued that these cases were not authority for the proposition that the
hospital authority was liable for all independent contractors. She made
reference to the case of X v Bedfordshire County Council [1995] 3 WLR 152 and to the full quotation from the speech of
Lord Browne-Wilkinson at pages 740 as follows:-
"The position can be illustrated by reference to the hospital cases. It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of the staff is himself in breach of a separate duty owed by him to the plaintiff; Gold v Essex County Council, Cassidy v Ministry of Health, Rowe v Ministry of Health; also Wilsons and Clyde Coal Co Ltd v English [1938] AC 57, McDermid v Nash. Therefore in the cases under appeal, even where there is no allegation of a separate duty of care owed by a servant of the authority to the plaintiff, the negligent acts of that servant are capable of constituting a breach of duty of care (if any) owed directly by the authority to the plaintiff."
[231] Recognising
that the cases of Gold, Cassidy, and Roe were approved in X
v Bedfordshire, and that the speech of Lord Browne-Wilkinson could be
read as approval, albeit obiter, of the existence of a direct duty to
see that care is taken, Miss Crawford submitted that the three cases
referred to staff employed by the hospital, and that Lord Browne-Wilkinson
also referred to staff. In the present case, the scientist could not be seen
as "staff".
[24New para
and re number] Miss Crawford
addressed the case of Ellis v Wallsend District Hospital [1989] 17 NSW LR 553 and submitted that while it contains an interesting discussion of
the way in which liability in this area of the law has developed, it was
difficult to know what the ratio of the case is. In any event it was clear
that the doctor in that case said to have been negligent was part of the
organisation of the hospital in the sense that he carried out his duties there;
but the question of the existence and scope of any duty of care was dependent
on the facts.
[252] Miss Crawford
argued that the case of A v Ministry of Defence gave no support
to the existence of a non-delegable duty of care in the present case. She
argued that it was not fair, just and reasonable to put that duty onto the
Health Board because the analysis was done by outside contractors. The
extent of assumption of responsibility in accepting the pursuer for ante-natal
treatment was to take care in the provision of the treatment which could
include taking care in having offered screening by arranging who will do the
analysis but that assumption of responsibility did not extend to ensuring that
the samples would in fact be tested with reasonable care and skill. While it
might seem attractive to argue that the defenders had a responsibility to
ensure that independent scientists would take reasonable care and would
exercise reasonable skill, the argument is not supported by authority. There
is no question of the pursuer as being left without a remedy as she could sue
the employers of the scientists, the University of Edinburgh.
[263] Miss Crawford
moved the court to sustain the first plea in law for the defenders and dismiss
the case as irrelevant.
The pursuer's
submissions
[274] Miss Dunlop
recognised that the pursuer argues that the defenders are liable in negligence
even though the individual said to have been negligent was not an employee of
the defenders. She pointed out that the pursuer had no way of knowing who
exactly was doing the analysis. On the facts averred in this case there
appears to be a very close relationship between the scientist and the hospitals
because if the pursuer had gone to the Simpson Memorial Maternity Pavilion she
would have had her sample analysed by Annette Gilfillan who was an NHS
employee. Because she went to the Eastern General Hospital her analysis was done by
Mr Axton who is said not to be an employee. That illustrates the
difficulty for the pursuer. She simply attended hospital as told to do by her
GP and had no way of knowing what would happen thereafter. Miss Dunlop
referred to the text book Winfield & Jolowicz at page 880
and 888. The authors there raised the difficulty which has arisen in the
present case. They state at page 889 as follows:-
"Alternatively if A is at fault but is not a servant, it may well be the case now that, having accepted responsibility for treatment, the hospital owes a non-delegable duty to ensure that proper care is taken. Modern developments in the organisation of healthcare may, however, produce more complex problems. For example, a public health agency may send a patient into the private sector or even abroad for treatment. Of course the actual provider of the treatment may incur liability for any damage resulting therefrom, but what is the position of the Health Trust which "sends" the patient? In A v Ministry of Defence, the Ministry cease to provide direct hospital care for British Forces in Germany and their families and entered into an arrangement whereby an English NHS Trust was to procure it from local hospitals. When the claimant suffered brain damage at birth, the Court of Appeal held that the Ministry was not liable for the fault of the doctor in the German hospital. It was the case that the Ministry was bound to take care to ensure that proper facilities were available in Germany but no non-delegable duty making it liable for individual acts of negligence arose because it was not providing treatment itself. This case is not quite on all fours of the standard arrangement whereby an NHS Trust having been approached by a patient in England procures treatment abroad and the decision is not perhaps decisive on that issue."
[2528] Miss Dunlop
referred to the case of Macdonald v The Board of Management for
Glasgow Western Hospitals 1954 SC 453. Two actions were heard
together in which Boards of Management pleaded that they were not liable for
the negligence of their resident medical officers. Proof before answer,
limited to the question of the relationship between the boards and the medical
officers and the extent of the direction and control exercisable by the Boards
over them was allowed and thereafter the Inner House reversed the judgment of
the Outer House and held that the Boards of Management were responsible
for any negligence established on the part of their resident medical officers.
Opinions were reserved as to the position of visiting consultants. In the opinion
of the Lord President (Cooper) at page 478 he said:
"Under the new Act and regulations the obligation on the state is, in my view, to treat the patient and not merely to make arrangements for his treatment by and at the sole responsibility of independent contractors. We are not here concerned with the visiting consultants called in for a special purpose (if such persons still exist and are entitled to the description applied to them in some of the cases of 'honorary' consultants), but with members of the permanent staff and organisation of the hospital, who, on the evidence in this case I am prepared to regard as servants of the Board for the purposes of the rule of respondeat superior, at least as the agents to whom the Board have delegated their performance of part of the duties which are imposed by statute on the Board."
[296] Miss Dunlop
argued that the case of Macdonald had not been overruled and while it
does not appear to have been often cited, is not to be disregarded. While it
is expressed in the language of vicarious liability, it can be read as to
indicate that the hospital management are responsible for ordinary standard
treatment provided to patients. In the present case, Miss Dunlop argued
that Miss Miss Shanks
went for ordinary standard ante-natal care and that she was entitled to rely on
the hospital having a duty to take reasonable care to provide it.
Miss Dunlop argued that the idea of vicarious liability depends on the
relationship between the defender and the wrong doer. The employer is fixed
with liability for his employees' actions because he is the employer and
because the wrong doer is acting in the course of his employment. The
non-delegable duty, in contrast, depends on the relationship between the
defender and the pursuer. The defender is fixed with liability because he has
assumed responsibility for the well being of the pursuer.
[3027] Miss Dunlop
addressed me on the case of A v Ministry of Defence. She argued
that the trilogy of older English cases (Gold, Cassidy, and Roe), go
further than Lord Phillips M.R. appeared to recognise, and that in any event
his Lordship was correct in stating that there is a strong argument of policy
for holding that a hospital which offers treatment to a patient accepts responsibility
for the care with which that treatment is administered regardless of the status
of the person employed or engaged to deliver the treatment. The facts of
that case were of course different from the present one in that there was
another layer of authority, it being the Ministry of Defence, not a hospital
board, on which the plaintiff sought to fix responsibility. . The
position had been accepted by Lord Browne-Wilkinson in X v
Bedfordshire County Council.
[3128] Miss Dunlop
summed up her position by stating that Macdonald was Inner House
authority for the proposition that the obligation of an NHS Hospital Board goes
beyond arranging treatment to the provision of treatment itself so that
liability for negligence in that treatment cannot be avoided by sheltering
behind the appointment of a competent person. There are obiter dicta of a very high
authority that a hospital owes a direct duty to a patient in the case of X
v Bedfordshire. In A v The Ministry of Defence there is obiter
dicta of high authority that there are strong policy reasons for holding
that a hospital which offers treatment to a patient accepts responsibility for
the care with which that treatment is administered regardless of the status of
the person employed or engaged to deliver the treatment. She argued that the
trilogy of English cases do provide authority for the proposition that a
hospital has a direct duty to a patient and that the scope of that duty
includes the work of the scientist in carrying out the analysis in this case. The
more recent case of A v Ministry of Defence provided
persuasive reasoning. Miss Dunlop also referred to Albrighton
v Royal Prince Alfred Hospital [1980] 2 NSW LR 542, which is
referred to in Ellis Ellis. She
argued in Australia it has been held that a hospital owes a non-delegable duty
of care to a patient accepted for treatment.
[3229] Miss Dunlop's
position was that the case should proceed to a proof before answer.
Reply for the
defenders
.
[330] In
reply, Miss Crawford argued that the ratio of Macdonald is not that
of the existence of a non-delegable duty but rather is that the duty lies on an
authority where they have an employed doctor. Therefore any dicta in
the case about non-delegable duties are obiter. She argued that the ratio
does not extend to the situation where the hospital contracts with another
institution, such as the University, to provide testing in a laboratory.
Miss Crawford argued that if Miss Dunlop was correct, then if a
patient were to be admitted to hospital and examined by doctors there who
decided that another specialism was needed and so transferred the patient to
another hospital then the first hospital would still be liable for anything
done by the second one. She argued that the cases from Australia were not particularly helpful.
[3134]
At the heart of vicarious liability is the relationship between defender and
wrong doer whereas in non-delegable duties the focus is on the relationship
between defender and pursuer. She argued that in this case there is nothing in
the averments about that relationship to allow the court to infer that there
was a non-delegable duty.
Discussion
[351] In
my opinion there is sufficient in the pursuer's pleading to allow a proof
before answer. The pursuer attended hospital because she was referred by her
GP for standard ante-natal care. She received the leaflet relating to
cystic fibrosis from the hospital, and accepted the invitation contained
in it to have testing. There is nothing in the leaflet which indicates that
the analysis would be carried out by anybody other than the hospital. It is
plain from the leaflet that should the test prove positive, the hospital would
then arrange for further testing and information to be given to the patient.
The matter is plainly very important as it is noted in the leaflet that a
positive test may, after further testing, result in the patient being offered a
termination. It would in my opinion be open to a patient to think that the hospital,
in offering a test, was offering to analyse any samples given. There is
nothing in the leaflet, nor is there anything in the pleading to indicate that
the offer of the test was in any way unusual or some type of "extra" not
normally offered in maternity care at the time. It is apparent from the pleadings
that other expectant mothers in Edinburgh were offered the same test and that they had the analysis carried
out by a person employed by the defenders. Thus there may
be circumstances both relating subjectively to the pursuer's perception and
objectively to the whole circumstances which affect the question of whether the
defenders have assumed responsibility and whether it would be fair,
just and reasonable to fix them with a duty as argued by the pursuer.
[36new para
and renumber ] I accept that
Miss Crawford is correct to say that none of the cases discussed in terms
address the situation which arises in this case. The hospital cases deal with
situations in which the duties incumbent upon hospital authorities were
evolving over a period and were changing from the set up which had been common
in the first part of the 20th Century when hospitals were run
by Charity Boards as places at which independent consultants arranged to treat
their patients. After the inception of the Health Service
in 1948 the status of consultants did not change immediately but it is plain
that hospitals employed house staff and that even before the inception of the
National Health Service, in the case of Gold, it is plain that English
law regarded the hospital authorities as liable for radiographers who, while
not doctors, are certainly skilled staff. In the present case the negligence
which is claimed to have happened, happened at the hand of a scientist rather
than of a doctor. I appreciate that the defenders did not have control over
the work carried out by that scientist but it seems to me that the control test
was disapproved in this situation by Lord Denning in 1951 in the case of Cassidy
at least in so far as relating to doctors. It does seem to me that the test rather
is whether or not the hospital assumed responsibility for the well being of the
patient. I do not find the case of X v Bedfordshire particularly
helpful as Lord Browne- Wilkinson does not discuss the scope of the
duties. Similarly I do not find the case of A v Ministry of Defence
particularly helpful as it seems to me that the ratio of that case is that the
Ministry of Defence was not liable to the plaintiff because the Ministry of
Defence is not in the business of providing healthcare. The defenders in the
present case are. I did not find the
case of fFarraj helpful. It
was decided at proof and there is no meaningful analysis of the basis of liability.
[37new para
and renumber] Counsel also
referred to the case of Robertson v Nottingham Health Authority
[1997] 8 Med LR1,
which in my view was essentially concerned with the proposition that a health
authority has a non delegable duty to establish a proper system of care, which
is not as I understand it in dispute. The case of M
v
Calderdale & Kirklees Health Authority [1998] Lloyd's Law reports 157
was also produced. Both counsel took the view that it
should be produced, but neither placed any reliance on it, it having been
effectively disapproved in A v Ministry of Defence. I
agree with them.
[382] Counsel
for the pursuer submitted under reference to Jamieson v Jamieson
1952 SC (HL) 44
that the case should not be dismissed at procedure roll unless it was clear
that it must fail. I took the view that the pleadings, while sparse, were sufficient
to allow inquiry. It seemed to me necessary to ascertain the facts in order to
decide on the scope of any duty owed by the defenders to the pursuer.
[393] Consequently
I will appoint this case to proof before answer, leaving the defenders first plea
in law standing.