SIOW CHING YEE (SUING THROUGH HIS WIFE AND LITIGATION REPRESENTATIVE, CHAU WAI KIN) v COLUMBIA ASIA SDN BHD [2024] 3 MLJ 66

Federal Court (Putrajaya)

Non-delegable Duty of Care

1. On 10 March 2010, the Appellant had undergone an operation at SJMC hospital.

2. However, on 22 March 2010, whilst the Appellant was at home, he suffered bleeding at the surgical area.

3. Due to the urgency of the situation, the Appellant’s family brought Appellant to the Respondent (D3) as it was the closest medical centre.

4. Upon arrival at D3, the Appellant was examined and advised by the consultant ear, nose and throat surgeon (D1) to undergo immediate surgery to stop the bleeding. The Appellant agreed to the surgery.

5. Suddenly, the Appellant experienced profuse bleeding at the Operation Theatre (OT) airlock area. The bleeding caused difficulty for the consultant anesthetist (D2) to administer the Appellant with anesthesia to intubate. D2 made two attempts to intubate the Appellant, who was continuously vomiting and bleeding, and successfully completed the procedure on the second attempt with assistance from D1.

6.During the surgery, the Appellant’s condition became critical, necessitating the administration of cardio-pulmonary resuscitation (CPR) in the operating theatre, after which he was transferred to the ICU.

7.  Consequently, the Appellant suffers from physical disabilities and severe hypoxic brain damage, leading to permanent mental impairment. Consequently, D1 and D2 are alleged to have failed to administer appropriate anesthetic care in the treatment of the Appellant.

8. In the High Court, the Appellant initiated a medical negligence claim against three parties: the first and second defendants (D1 and D2), who were medical practitioners, and the third defendant (D3), a well-established medical centre where they were employed.

9. By virtue of the residential consultant agreement, D1 and D2 are independent contractors at D3.

10.  The Appellant contended that Respondent (D3) was vicariously liable for D1 and D2.

11.  The Appellant also claimed that D3 was directly liable for D2’s negligence under the principle of non-delegable duty of care.

12. The High Court dismissed the claim by the Appellant against D1 and D3. Meanwhile D2 was found solely liable and RM1,967,772.70 was the amount of award damages to the Appellant.

13.  Dissatisfied, the Appellant appealed to the Court of Appeal. The Court of Appeal affirmed the decision by the High Court but doubled up the amount of damages to be awarded to the sum of RM2,111,872.70.

14.  Subsequently, the Appellant appealed the case to the Federal Court (FC) in Putrajaya, challenging the decisions of both the High Court and the Court of Appeal, which had found the Respondents not liable.

Whether D3 owed a non-delegable duty of care towards the Appellant.

(a) Although D1 and D2 were independent contractors at the material time, D3 could be liable for any tortious act conducted by D1 and D2 by virtue if the principle of non-delegable duty of care.

(b) In considering the applicability of the principle of non-delegable duty of care, the FC in this case referred to the five features propounded in the case of Woodland v Swimming Teachers Association & Ors [2014] AC 537. The five features considered are as follows–

1. The vulnerable claimant is not only limited to patients and children who rely on the defendant’s protection from the risk of injury.

2. The claimant and the defendant must have an antecedent relationship, the moment the defendant assumed responsibility for the claimant especially the claimant is under the defendant’s custody or supervision.

3. The defendant’s decision in performing his function is out of the plaintiff’s control.

4. The defendant delegated his function which constitutes a core part of its positive duty to a third party.

5. The third party was negligent in performing the delegated function assumed by the defendant.

(c)  The FC examined the circumstances to establish the existence of a prior antecedent relationship between the Appellant and the Respondent. It noted that the Appellant had been admitted to the Respondent’s emergency department and was initially treated by the Respondent’s medical officer before being referred to D1 and D2.

(d) The FC considered that both D1 and D2 were integral members of the professional team required for the Respondent to consistently provide emergency medical services, in accordance with Regulation 231 of Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006.

(e) The FC was in view that the sequence of events supports the conclusion that an antecedent relationship existed between the Appellant and the Respondent, considering the alleged negligence occurred during the course of medical care provided within the Respondent’s premises, using its facilities and services.

(f) In determining the Respondent’s duty of care based on its acceptance of responsibility, the FC also referred to the case of Farraj and Anor v King’s Healthcare NHS Trust & Anor [2009] 111 BMLR 131 where it was held that the hospital assumes a specific responsibility for the patient’s well-being and safety, considering the patient was vulnerable, required special care, and had already entrusted himself to the hospital’s custody and care.

(g) In addition to that, the FC also considered Regulations 230, 231(1) and 231(12) of Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 and concluded that the hospital was responsible not only for its premises and facilities but also for the treatment and care of patients regardless to whom the duties are delegated.

(h) The FC further held that the Private Healthcare Facilities and Services Act 1998 (‘Act 586’) and its Regulations provide a broad scope of duties for private hospitals to ensure patient safety and care during treatment. Their roles extended beyond merely providing premises, utilities, facilities or backup services for the treatment and care of the patients.

(i) After considering the five Woodland’s features together with the statutory framework, the FC held that the principle of non-delegable duty was established.

(j) Besides that, the FC adopted the principle established in Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685, as affirmed in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor [2018] 3 MLJ 281. However, its application to the facts led to a different conclusion. The Court noted that the patient had consulted the doctor outside the hospital premises both prior to the operation and during follow-up appointments. On this basis, the Court held that only the anaesthetist satisfied the criteria necessary to establish vicarious liability. Accordingly, the hospital was not vicariously liable for either medical specialist, as both were considered independent contractors.

(k) Nonetheless, considering the distinct facts in this present case, the FC held that the Respondent owed a non-delegable duty of care regardless of who performed the duty of care.

Although there was a dissenting judgment in this 4-1 decision, the majority of the FC in Putrajaya allowed the Appellant’s appeal and ordered the Respondent to fully compensate the Appellant, subject to any conditions or reductions as determined by the Court.

1. Although the doctors are independent contractors, the private hospitals can still be held liable under the non-delegable duty doctrine.
2. The differing factual circumstances will invariably give rise to distinct legal claims and outcomes.