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Case Update: Non-delegable duty of care in Woodland

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MEDICAL NEGLIGENCE
Medical negligence – Duty of care – Non-delegable duty of care –Vicarious liability Whether doctrine of non-delegable duty of care in Woodland applicable in Malaysia – Whether private hospitals in Malaysia can or should be held vicariously liable for tortious conduct or clinical negligence of medical doctors vis-à-vis their patients while practising as independent contractors
 
Dr Kok Choong Seng & Anor v Soo Cheng Lin & Another Appeal
[2017] 10 CLJ 529, Federal Court
 
Facts The respondent, a patient, had a lump in his forearm and had consulted the first appellant, Dr Kok Choong Seng (“Dr. Kok”) at his clinic. The respondent underwent an operation at the second appellant (“the Hospital”) and was discharged the same day. After the respondent complained of pain and numbness on several occasions, Dr Kok referred the respondent to Dr Ranjit Singh, a surgeon from Pantai Medical Centre. The respondent then had to undergo further surgery and brought an action against the appellants for negligence and breach of contract. The High Court held Dr. Kok liable for negligence in his capacity as a medical practitioner and the Hospital in negligence as a provider of healthcare services which included the competence, skill and expertise of Dr. Kok. Upon appeal, the Court of Appeal dismissed the Hospital’s appeal on liability.  Hence, this appeal.
 
Issue The relevant issues were (i) whether the doctrine of non-delegable duty of care as expounded in Woodland[1] is applicable in Malaysia; (ii) if the doctrine of non-delegable duty of care applies, whether private hospitals in Malaysia such as the appellant hospital can or should be held vicariously liable for the tortious conduct or clinical negligence of medical doctors vis-à-vis their patients while practising there as independent contractors.
 
Held In allowing the appeal on liability, the Federal Court held that the doctrine of non-delegable duty in Woodland applies in Malaysia and that the Hospital was not liable for breach of a non-delegable duty to the respondent. This is because the respondent reasonably expected the operation to be conducted by Dr. Kok and that the Hospital merely provided the relevant facilities for his admission and operation. The Federal Court also ruled Dr. Kok to be an independent contractor of the Hospital in conducting the operation. As such, the Hospital is not liable for Dr. Kok’s negligence whether on the basis of non-delegable duty or vicarious liability. The liability for the respondent’s injuries rests solely with Dr. Kok.
 
[1] Woodland v Swimming Teachers Association And Others [2014] AC 537 - The case laid down a framework of principles or criteria to determine if the duty was non-delegable.

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