Siow Ching Yee v COLUMBIA ASIA SDN BHD (02(f)-12-02/2023(B))

Dr. Megat Shiraz Bin Megat Rahim

Dr. Noor Asilah Bt Abdul Rahman

Columbia Asia Sdn Bhd (No Syarikat: 388359-P) ... Respondents] [IN THE HIGH COURT OF MALAYA AT SHAH ALAM CIVIL SUIT NO: BA-23NCVC-27-10/2017 Siow Ching Yee (Menyaman melalui isteri dan wakil litigasinya Chau Wai Kun) ... Plaintiff

Dr. Megat Shiraz Bin Megat Rahim

Dr. Noor Asilah Bt Abdul Rahman

Columbia Asia Sdn Bhd (No Syarikat: 388359-P) ... Defendants] CORAM: Mohamad Zabidin bin Mohamad Diah, CJM Abdul Rahman bin Sebli, CJSS Zabariah binti Mohd Yusof, FCJ Hasnah binti Mohammad Hashim, FCJ Mary Lim Thiam Suan, FCJ DISSENTING JUDGMENT INTRODUCTION: [1] The appeal herein concerns the imposition of a non-delegable duty of care on a private hospital for the alleged negligence act of its independent contractor, a medical practitioner. [2] In this judgment, parties shall be referred to, as in the High Court. [3] In the High Court, the plaintiff filed a medical negligence claim against the $ 1^{\mathrm{st}} $ defendant (D1), $ 2^{\mathrm{nd}} $ defendant (D2), who at the material time practiced as registered medical practitioners at the $ 3^{\mathrm{rd}} $ defendant (D3), an established medical center. D1 and D2 are independent contractors in D3, by virtue of the Residential Consultant Agreement. [4] After a full trial, the High Court dismissed the claim by the plaintiff against D1 and D3 and found liability only against D2 and award damages of RM1,967,772.70 to the plaintiff. The Court of Appeal affirmed the findings and decision of the High Court on liability but varied the quantum of damages to be awarded against D2 to the sum of RM2,111,872.70. [5] The appeal herein is only against the decision of the Court of Appeal which affirmed the decision of the High Court in dismissing the claim of the plaintiff against D3. There is no appeal by D2 or by the plaintiff against the finding of liability and award of damages against D2. It is to be noted that the amount of damages awarded against D2 was over and above D2's medical indemnity for malpractice. QUESTIONS OF LAW: [6] The plaintiff has been granted leave to appeal to this Court on the following Questions of law:

Whether the owner and manager of a hospital is in law a provider of healthcare and owes a non-delegable duty of care to patients as stated by the English Court of Appeal in the post - Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 case of Hughes v Rattan [2022] EQCA Civ 107).

Whether the judgment of the Federal Court in Dr Kok Choong Seng regarding the tort of negligence in a private hospital applies where the owner and manager of the hospital owes separately duties of care in contract and by statute?

Whether the owner and manager of a private hospital would be liable to patients under a non-delegable duty of care when a doctor practising in the hospital as an independent contractor has insufficient professional indemnity for malpractice?

If the answer is "yes", whether the owner and manager, as a provider of healthcare, may escape liability for a breach of such duty of care committed by a doctor because the doctor is an independent contractor who has been engaged to practise in the hospital?

Whether there is a statutory duty of care, independent of a duty in negligence or contract, owed by the owner and manager of a private hospital under the Private Healthcare Facilities and Services Act 1998 and the subsidiary legislation made thereunder?

Whether the fees received by a director of a company from the company are "earnings by his own labour or other gainful acitivity" under section 28A(2)(c)(i) of the Civil Law Act 1956?

In light of the post-Dr Kok Choong Seng case of Armes v Nottinghamshire County Council [2018] 1 All ER 1 decided by the Supreme Court of the United Kingdom, whether after applying the 5-feature test in Woodland, a Court must additionally apply the test of whether it is fair, just and reasonable to impose a non-delegable duty of care in the circumstances of the case? [7] The Questions of law can be categorized into the following issues: a) Whether D3 owes a non-delegable duty of care to the patient (Questions 1,3,4 and 7); b) Whether D3 had breached some statutory duty imposed by the law (Question 5); and c) Whether D3 owes a duty of care in tort where D3 owes separate duties of care in contract and by statute (Question 6). [8] None of the questions framed, relate to issues of breach of contract or in respect of terms which may be implied. THE ISSUE IN THE APPEAL: [9] The appeal revolves on the question of whether a private hospital (in this case D3) can be made liable for a tort committed by an independent contractor (D2) appointed by it (D3), premised upon the principle of non delegable duty of care. BRIEF FACTS: [10] The plaintiff brought the present claim for and on behalf of her husband, who was 43 years (hereinafter referred to as "the patient") at the time of filing this action. [11] On 10.3.2010 the patient had undergone certain medical procedures known as tonsillectomy, palatal stiffening and endoscopic sinus surgery (operation) at the Subang Jaya Medical Centre ("SJMC"). On 22.03.2010, at 3 a.m. while at home, the patient suffered bleeding at the site of the operation. The plaintiff contacted the patient's doctor in SJMC, Dr Puraviappan, who told her to bring the patient to SJMC immediately, however, the plaintiff decided to seek treatment at D3 as it was nearer to home and the bleeding was heavy (Paragraph 22 of the Statement of Claim). [12] The patient was brought to the accident and emergency department of D3. The patient was attended by a medical officer (Dr. Ng) of D3 who was on duty at the accident and emergency department, who subsequently called Dr. Megat Shiraz (D1), informing D1 that there was a patient having secondary haemorrhage from a tonsillectomy performed earlier at SJMC on 10.3.2010. In the meantime, D1 ordered Dr. Ng to give ice cubes to the patient for gargling with a view to stop the bleeding. [13] Upon arrival at the hospital (D3), D1 examined the patient and advised the patient to undergo surgery to stop the bleeding. The patient agreed and signed the consent form and he was transferred to the operating theatre (OT) accompanied by D1 and D2. While at the OT airlock area, the patient suffered more profuse bleeding despite earlier attempts at treating the complications (para 23 of the statement of claim). D1 and D2 immediately pushed the patient into the OT and attempted to stop the bleeding as well as secured his airway. The bleeding caused difficulty in administering the patient with anaesthesia in order to intubate. The 1 $ ^{st} $ attempt to intubate was unsuccessful due to continuous vomiting and bleeding. D1 used his index finger to press on the left tonsillar bed and immediately the bleeding stopped. D2 was then successful in intubating the patient and securing his airway. [14] D1 proceeded to perform surgery. However, the patient's condition became critical where the patient's blood pressure and the readings of his blood oxygen level dropped. The patient was commenced on cardio pulmonary resuscitation (CPR) while in the OT. Following the CPR the patient's vital signs recovered, and the patient was then admitted into the Intensive Care Unit of D3 for continued post-surgical care and management. Post-surgery, the patient suffered hypoxic brain damage. [15] On 28.3.2010, on the instructions of the family, the patient was transferred to SJMC for further management. [16] It was alleged that D1 and D2 failed to undertake the appropriate anaesthetic management adequately when treating the patient's complications before proceeding with the surgery which resulted in the patient suffering severe hypoxic brain damage with permanent mental and physical disabilities. [17] It was contended by the plaintiff that: i) D3 is vicariously liable for the negligence of D1 and D2 (paragraph 29 of the Statement of Claim); ii) the Defendants' negligence and/or statutory duties are as regard, but not limited to, the diagnosis, history taking, advice giving, treatment and systems failure of D3 which caused or materially contributed to the injuries and loss (paragraphs 26- 38 of the Statement of Claim); and iii) D3 owed a non-delegable duty of care to the patient (paragraph 29 of the Statement of Claim). FINDINGS BY THE HIGH COURT: [18] On 30.07.2020, the High Court allowed the plaintiff's claim against D2 only and damages is to be paid by D2 to the plaintiff. The plaintiff's claim against the D1 and D3 were dismissed. [19] As the appeal herein is only against D3, I do not find it necessary to belabour on the findings of liability by the High Court against D1 and D2, in this judgment. [20] The material findings by the High Court which was affirmed by the Court of Appeal against D3 are as follows:

In determining the liability of D3, the learned trial Judge scrutinised the averments, facts, and allegations of negligence raised in the pleadings (paragraph 4 of the judgment). Premised on the pleadings, submissions and the expert opinion of the plaintiff, the learned trial Judge held that the cause of the hypoxic brain damage to the patient was due to the inappropriate or delayed timing of the induction of anaesthesia which was wholly undertaken by, and as a result of the clinical decision of D2.

The plaintiff failed to plead specifically against D3 for causing the said delayed induction of the anaesthesia on the patient, as a result of which D2 was found liable to the plaintiff (paragraphs 72 and 73 of the judgment);

There was no evidence to the contrary that the patient had not been properly managed at D3 according to normal medical standards. No criticism was directed at the service and treatment provided by D3 to the patient or the facilities available at D3 for being inadequate (paragraph 74 of the judgment);

It is trite and settled law that the plaintiff in a medical negligence suit against a hospital must lead credible evidence to prove that any alleged shortcomings in the care, management and treatment rendered had caused/resulted in the adverse outcome suffered by the patient. In this case, the plaintiff failed to adduce any credible or sufficient evidence to prove the pleaded particulars of negligence against D3, which can be found at paragraph 26.38 of the Statement of Claim;

With regards to the contention of vicarious liability and breach of non-delegable duty of care, both the consultants, D1 and D2, were carrying out their practice in the hospital at all material times not as employees, servants or agents of the hospital but as independent contractors. Hence, D3 ought not to be held liable to the plaintiff for the negligence of D2, if any, unless negligence is satisfactorily proved against D3 as well. D2's contract with D3 is evidenced by the Resident and Consultant Agreements produced in Court which specifically states that D2 is an independent contractor, which is also admitted by the plaintiff in her pleadings. Hence, the plaintiff could not now contend that there was a private agreement or arrangement between D2 and D3 without the knowledge of the patient. ANALYSIS AND DECISION: [21] The plaintiff's pleaded causes of action against D3 are that: a) D3 owed the plaintiff a non-delegable duty of care; b) D3 had breached its contractual/statutory and/or other duties; and/or c) D3 is vicariously liable to the patient for D2's tort. [22] As to the plaintiff's claim against D3 premised on vicarious liability, it has been brought to the attention of this Court that, the issue of vicarious liability has been abandoned by the plaintiff in the Court of Appeal. Given the aforesaid, the issues to be addressed in this judgment is limited to the causes of action at para (a) and (b) above. Non-Delegable Duty of Care: [23] Questions 1, 3, 4 and 7 relate to the law on the doctrine of non-delegable duty of care. The doctrine of non-delegable duty of care imposes liability on the non-tort-feasor i.e. on the person who is not the one who committed the negligent act. [24] One of the earliest pronouncement on the said doctrine in hospital cases was the minority judgment of Lord Greene in the English Court of Appeal case of Gold v Essex County Council [1942] 2 KB 293, at 301. The majority of the Court of Appeal therein decided the case according to the principles of vicarious liability. In subsequent years, Lord Denning, in his minority judgment in the case of Cassidy v Ministry of Health [1951] 2 KB 343, identified the underlying principle of the doctrine of non-delegable duty of care "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." Again, the majority in Cassidy v Ministry of Health decided the case on the application of the principles of vicarious liability. [25] These analysis of the factors that gave rise to the non-delegable duty of care as expounded by Lord Greene and Lord Denning in Gold v Essex County Council and Cassidy v Ministry of Health respectively, were later given broad recognition by Lord Sumption in Woodland v Essex County Council [2013] UKSC 66. Although Lord Sumption did not subscribe to every dictum in the Australian cases referred therein, nevertheless he was of the view that they were correct in identifying the underlying principles and the analysis of the factors that gave rise to a non-delegable duty of care (as reflected at para 23 in the judgment of Woodland). [26] In the context of cases involving staff employed in hospitals which provide treatment to patients, the cases pre-Woodland, (namely Hillyer v The Governors of St Barthlomew's Hospital [1909] 2 KB 820; Gold v Essex County Council; Cassidy v Ministry of Health; Roe v Minister of Health [1954] 2 QB 66; X and others (minors) v Bedfordshire County Council; Mia minor) and another v Newham London Borough Council and others; E (a minor) v Dorset County Council and other appeals [1995] 3 All ER 353; [1995] 2 AC 633), which made statements on the doctrine/concept of non-delegable duty of care were merely obiter. These cases were dealt with, extensively by this Court in Dr. Kok Choon Seng & Anor v Soo Cheng Lin and Another Appeal [2018] 1 MLJ 685 (see paragraphs 46-55). [27] The numerous cases which dealt with, and imposed the doctrine of non-delegable duty of care were difficult to reconcile and rationalize, despite the various attempts by commentators and authors to explain the theoretical basis for the imposition of non-delegable duty of care. Previous cases have shown that non-delegable duties have arisen in numerous contexts, namely: i) liability for escapes of substances likely to do mischief (Rylands v Fletcher [1866] LR Exch 265); ii) liability for inherently hazardous activities (Honeywill v Larkin [1934] 1 KB 191); iii) liability for dangers on public highway (Holliday v National Telephone Co [1899] 2 QB 392); iv) liability of employer to its employee (Wilson v Clyde Coal Co Ltd v English [1938] AC 57; and v) liability arising from statutory duties (Smith v Baird & Co Ltd [1940] AC 242. which make it impossible to identify a single conceptual basis capable of unifying all forms of such duty. In reality, previous cases have illustrated that, when the straight forward action in tort, be it negligence, nuisance or trespass, are not available to a plaintiff, the doctrine of non-delegable duty provides a useful tool to resolve the impasse, allowing the court using policy justifications to impose liability on a defendant, who is not the wrongdoer. It appears to be a devise in the pursuit of social justice, to circumvent the limitations of the doctrine of vicarious liability, so as not to deprive innocent victims of remedy in cases of negligence, as very well illustrated in Cassidy v Minister of Health. There, the patient, suffered injury during a medical procedure performed by the staff of the hospital in question. Unfortunately, the exact cause of the injury and the particular employee of the hospital responsible for the negligence could neither be ascertained nor identified. The doctrine of Res Ipsa Loquitor was applied, which allowed the court to infer negligence on the part of the hospital based on the nature of the injury, even without direct evidence of negligence. Such were the surrounding circumstances where the injury could not have occurred without some degree of negligence on the part of the hospital or its staff. It is in that context that the hospital was presumed to be liable. [28] Similarly in Woodland, where the doctrine of vicarious liability was not applicable, and the pleadings were less than satisfactory, the doctrine provide the resolution to such deficiency. The Court provided a rationalization for the imposition of the non-delegable duty of care, generally, creating 2 broad categories of claims based on positive assumption of responsibility towards the victim in question, namely:

where the defendant employs an independent contractor to perform an inherently hazardous or extraordinarily hazardous or liable to become so in the course of his work. In such situation the duty of care cannot be delegated to the independent contractor and the principal will remain liable throughout; or

(ii) where there exist special relationships between the principal and the victim such that the principal is not permitted to delegate his tortious liability to an independent contractor. [29] Our present appeal falls within the $ 2^{\mathrm{nd}} $ category. [30] The $ 2^{\mathrm{n d}} $ category requires an assessment of the relationship between the parties, and that relationship created a duty of care between the plaintiff and the defendant which could not be delegated to independent third parties. [31] In this regard, Lord Sumption in Woodland had formulated 5 identifying features, in cases in the $ 2^{n d} $ category, where non-delegable duty of care applies:

The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury.

There is 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

(ii) 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 will foreseeably damage the claimant. It is characteristics of such relationships that involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of school children.

The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.

The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him. [32] Lord Sumption cautioned against imposing unreasonable financial burdens on those providing critical public services and the features were intended to identify circumstances in which the imposition of a non-delegable duty should be imputed to schools (with which Woodland was concerned) only in so far as it would be fair, just and reasonable to do so. Lord Sumption was of the view that, based on the criteria, there would not be any unreasonable burden imposed on the school by recognizing the existence of a non-delegable duty. Baroness Hale agreed that the principle of personal liability for the breach of non-delegable duty will apply in circumstances as set out by Lord Sumption subject to the usual provisos that such judicial statement is not to be treated "as if they were statutes and can never be set in stone" (paragraph 38 of Woodland). [33] Lord Sumption indicated that non-delegable duty of care is distinct from the doctrine of vicarious liability, which according to orthodox theory, imposes secondary liability. [34] This Court in Dr Kok Choong Seng has accepted and adopted the guiding principles as refined in Woodland as a useful starting point in establishing the imposition of a non-delegable duty of care (refer to para [62] of the said case). This court emphasized that as the imposition of this duty is an onerous obligation and non-fault-based, the proviso in Woodland has to be kept in mind, namely, that such duties should only be imposed where it is fair, just and reasonable to do so, based on the facts and circumstances of the case, developed incrementally from existing categories and consistent with underlying principle: [62] We, therefore, reject the arguments by counsel that all private hospitals are always or never under a non-delegable duty to patients, in respect of the medical treatment provided by doctors practising there. Given that the role of the hospital may vary from patient to patient, the extent and scope of the hospital's duty towards the patient must be ascertained from the facts and circumstances of the case. [70] ...given the fact-sensitive nature of the Woodland test, whether private hospitals are in breach of a non-delegable duty to their patients by reason of the negligence of doctors practising there cannot be predetermined by a general pronouncement, but assessed based on the facts and circumstances of each case." (Emphasis included) [35] From the aforesaid, this Court in Dr. Kok Choong Seng did not make any general determination that the doctrine applied to all private hospitals vis-à-vis doctors who practices there as independent contractor. [36] Counsel for the plaintiff has conflated the concepts of non-delegable duty of care with that of vicarious liability, which is contrary to what has been indicated by Lord Sumption and by this Court in Dr. Kok Choong Seng, which held that this is a misconception as both are distinct in nature and basis: [38] Non-delegable duties have been erroneously considered as a "kind of vicarious liability", and adopted as part of the test to determine vicarious liability in some cases. This is a misconception. The two doctrines are similar in effect, in that they result in liability being imposed on a party (the defendant) for the injury caused to a victim (the plaintiff) as a result of the negligence of another party (the tortfeasor). However, it bears emphasis that non-delegable duties and vicarious liability are distinct in nature and basis." (Emphasis included) [37] The similarity is that, both vicarious liability and non-delegable duty of care result in liability being imposed on a party (the defendant) for injury caused to a victim (the plaintiff) as a result of negligence of another party. [38] In vicarious liability it imposes liability on the defendant for the tortfeasor's breach of duty towards the plaintiff, based on relationship of employment between the defendant and the tortfeasor. [39] Non-delegable duty of care arises because: i) of an antecedent relationship between the defendant and the claimant; ii) The duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury; iii) The duty is by virtue of that relationship personal to the defendant. The work/duty required to be performed may be delegable. But the duty itself remains to the defendant. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. [40] Theoretically, Woodland did not in any way, vary nor extend the doctrine of vicarious liability, because the appeal therein has got nothing to do with vicarious liability (paragraph 4 of the judgment). Hence, the well-established principle that the torts of independent contractor does not give rise to vicarious liability, remains intact. Nondelegable duty remains as an exception to the no fault principle. In other words, for clear cut cases of negligence of independent contractors where remedy/compensation is available, there is no need to impose liability on the non-tortfeasor premised on non-delegable duty of care. This is elaborated in paragraph 68, 69 and 76 of this judgment. [41] To rely on Woodland in the determination of non-delegable duty of care, one must be wary of the context in which the case was decided (this is elaborated at paragraphs 71 and 72 in this judgment). The Supreme Court in Woodland adopted the approach of a specific policy justification for the imposition of the non-delegable duty of care, namely the noncontractual assumption of responsibility. This non-contractual assumption of responsibility exists in parallel to the duty owed by a contracting party to perform the contractual services with reasonable care and skill. When this very duty is breached, the claimant in a contractual relationship with the defendant will be able to bring a claim for breach of contract regardless of the status of the individual the defendant employed to do the work. This became important in the context of schools where education may be provided by private or public funded schools. [42] The other concern of the Supreme Court in Woodland is the trend of outsourcing of the key and integral services of the school to independent contractors leaving claimants with no remedy, as vicarious liability is not applicable in such situations. The imposition of the assumption of responsibility of non-delegable duty operates to fill this gap created by the outsourcing of those key services to independent contractor. The Supreme Court also sought to avoid being seen as being discriminatory between victims injured in private schools and one injured in public funded schools, as a non-delegable duty was the appropriate means of securing equal protection, and the school's responsibility was not discharged by choosing competent people to do it. This was the factual matrix and context in which Woodland was decided premised on policy considerations. In other words, the doctrine of non-delegable duty of care provides the essential context to the decision, as the facts in Woodland fall outside the scope of the vicarious liability doctrine (Paragraph 2 of the judgment). It is this precise reason (the negligent party was an independent contractor rather than an employee), that this case went all the way to the Supreme Court. [43] In Woodland the degree of proximity between the parties creates the expectation of the justification for legal responsibility on the part of the Education Authority. In this regard, one of the features formulated by Lord Sumption which is the presence of antecedent relationship between the defendant and the victim, justifies the imposition of a non-delegable duty on the defendant. The High Court of Australia in Kondis v State Transport Authority (1984) 154 CLR 672, provided some insight on this element. Although the case was argued on the basis of vicarious liability, Mason, Deane and Dawson JJ agreed that it was decided on ground that the relevant duty was non-delegable. Mason J explained the basis in which the law holds some duties to be non-delegable: "32. ...when we look at the classes of case in which the existence of a nondelegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed..." (Emphasis included) [44] In New South Wales v Lepore (2003) 212 CLR 511, Gummow and Hayne JJ suggested that in each case in which non-delegable duty of care had been held to exist, there was: "... a relationship in which the person owing the duty either has the care, supervision or control of the other person or has assumed a particular responsibility for the safety of that person or that person's property. It is not suggested, however that all relationships which display these characteristics necessarily import a non-delegable duty." (Emphasis included) [45] "Antecedent relationship" which is a feature of the doctrine refers to a pre-existing relationship between the hospital and the patient which places the patient in the actual custody of the hospital. It is possible to impute the assumption of responsibility to the defendant by virtue of the special character of his relationship with the claimant. It is premised upon the assumption of a positive duty to protect a claimant/plaintiff from harm. It may be an express assumption of such duty. Where it is not, it must be capable to be inferred from the circumstances of the case, whereupon the assumption of such duty may be imputed. This is the pivotal legal nexus between the claimant and the defendant without which the law may not impose liability. This can be discerned from an analysis of the 5 features as set out by Lord Sumption which has been adopted by this Court in Dr. Kok Choong Seng (at para 36 of the judgment). [46] In the present appeal, the court is required to evaluate and determine the nature of the relationship between D3 and the patient and the connection between the relationship and the wrongful act of D2. This determination is a question of fact premised upon a consideration and evaluation of multiple factors and vary from case to case. [47] Lord Sumption in his wisdom expected that this will open floodgates for new liability, hence, cautioned that tortious liabilities based not on personal fault but on duty to ensure that care is taken, should be an exception rather than the rule and circumscribed. A perusal of the judgment in Woodland, disclosed that the legal framework of non-delegable duty of care requires a high degree or extent of vulnerability. To that extent, imposing this duty on hospitals for all cases would be generalizing that all patients are inherently vulnerable due to their dependence on the hospital for their care. Patients are capable of processing information and making decisions as to which hospitals are suitable to their need, although the doctors in attendance would take into account of the patient's requirements and concerns. More often it is the choice of a particular doctor/specialist which determines where the patient seek for treatment. This aspect has some relevance to the "vulnerability" issue in hospital cases, which differs from school pupils who are inherently vulnerable and immature of making their own decisions and rely very much on the school authorities (which requires a high standard of the duty of care) as compared to patients of hospitals. Hence, to apply the "vulnerable issue" as enunciated in Woodland to all hospital patients generally is not appropriate. Lord Sumption and Baroness Hale crafted the legal framework for non-delegable duty to be applicable with substantial control and restrictions as tort law emphasize the non-fault principle. Woodland has certainly not liberalized the ambit of non-delegable duty. [48] With that factual matrix and the legal principle in determining the non-delegable duty of care, I proceed to address the Questions of law posed. Question 1: [49] Firstly, I have to address on the usage of the term "owner" or "manager" as found in the $ 1^{\mathrm{st}} $ limb of Question 1. [50] Private Hospitals, like D3 is regulated by the Private Healthcare Facilities and Services Act 1998 (PHFSA) and the statutory regulations thereunder, namely the Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 (the Regulations). [51] The term "owner" or "manager" are not used in the PHFSA or the Regulations. Liabilities and responsibilities are imposed on "licensee". The PHFSA and Regulations do not expressly impose civil liability on the persons owning or directing, or otherwise controlling a licensee. Neither can it be inferred from the provisions. [52] Hence, there is no statutory basis to generally hold an owner or manager liable for civil claims where they are not the licensee. Where the licensee is a company, this preclusion applies to its shareholders, directors and management. Therefore, the first limb to the question which queried "Whether the owner and manager of a hospital is in law a provider of healthcare and owes a non-delegable duty of care to patients." is a misnomer and it does not qualify as a question that can be applied generally. [53] However, as far as the facts of our case is concerned, D3 conceded in the pleadings that it is the owner and manager of D3, but not clear whether D3 is the licensee. [54] In the $ 2^{\mathrm{nd}} $ limb of Question 1, the plaintiff seeks to have this Court revisit its decision in Dr. Kok due to the decision of the English Court of Appeal in Hughes v Rattan with the aim of definitively establishing that private hospitals are liable, by reason of a non-delegable duty of care to patients, irrespective of the circumstances of a given case, and to further impose liability on the owners and managers of a private hospital beyond what Woodland has expounded. [55] In this regard, answering the question in the affirmative as suggested by the plaintiff, would firstly, run contrary to what has been held by Woodland, which has been adopted and accepted in Dr. Kok Choong Seng. The latter case rejected "the arguments by counsel that all private hospitals are always or never under a non-delegable duty to patients, in respect of the medical treatment provided by doctors practising there" and subsequently held that the determination is highly fact sensitive (Refer to para 62 of the judgment). Therefore, a general all-encompassing pronouncement as suggested by the appellant in Question 1 is certainly out of the question. [56] Secondly, Dr. Kok Choong Seng is a recent decision on the application of the non-delegable duty of care and has been adopted and followed in numerous cases subsequent thereto by this Court, which decisions were grounded on the principles of the doctrine stated therein, amongst which are: - Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another Appeal [2018] 3 MLJ 281; and - Hemraj & Co Sdn Bhd v Tenaga Nasional Bhd [2023] 1 CLJ 651. [57] As a matter of policy, it is not open for this Court to reverse a decision of another panel of this Court on the doctrine which was given so recently, save and except in situations where "it appears patently clear that the earlier decision was given in defiance of an express statutory provision that was overlooked by this Court. Equally where a serious error is embodied in a decision of this court that has distorted the law, in which case the sooner it is corrected the better." (Koperasi Rakyat Bhd v Harta Empat Sdn Bhd [2000] 3 CLJ 719; [2020] 3 CLJ 153, at page 196-197). It has not been shown by the plaintiff that the decision in Dr. Kok was based on a serious error of law. [58] Thirdly, the decision of the English Court of Appeal in Hughes v Rattan [2022] EWCA Civ 107 applied the ratio decidendi and the identifying features which was expounded in Woodland. This is evident from the statement of Lord Justice Bean at para 50: "50. Woodland is now the leading case on non-delegable duties of care. At para 73 Lord Sumption identified five cumulative factors (the Woodland factors) which indicate the existence of such a duty". [59] Counsel for the plaintiff submits that in Hughes v Rattan the defendant was found liable premised upon the non-delegable duty of care and hence appears to be a departure from what Woodlands has prescribed. [60] However, that is far from it, as Hughes v Rattan was decided based on its own sets of facts and guided by the identifying features as formulated in Woodlands, as can be discerned from the judgment of Lord Justice Bean which held that: "71. I also consider that the judge was right to find that the Claimant satisfied all the factors identified by Lord Sumption at paragraph 23 of Woodland as giving rise to a non-delegable duty of care:-

In the first factor "patient" must include anyone receiving treatment from a dentist.

Turning to the second factor, an antecedent relationship between the Claimant and the Defendant was established at the latest on each occasion when the Claimant signed the Personal Dental Treatment Plan, which she was required to do before any NHS treatment was carried out. That relationship placed the Claimant in the actual care of the Defendant, not because he was a dentist himself but because he was the owner of the Practice...The duty owed by Dr. Rattan was a positive or affirmative one to protect the patient from injury; and it involved an element of control over the patient.

As for the third factor, the Claimant had no control over how the Defendant chose to perform his obligations, whether personally or through employees or third parties." (Emphasis included) [61] In Hughes v Rattan the material facts are: a) The dental clinic was a sole proprietorship comprising solely of the defendant dentist. b) The patient/claimant was admitted as a patient of the clinic pursuant to a written contract (personal dental treatment plan) between the claimant and the dental clinic in advance of each treatment session, which in fact and in law was between the claimant and the defendant dentist himself. c) The personal dental treatment plan was signed by the claimant which named the defendant dentist as the provider of dental treatment and which stated the "dentist named on this form is providing you with the course of the treatment." There is no other dentist mentioned in the Form. d) The Claimant was not treated by the defendant dentist himself. e) This written contract allowed the defendant dentist to sub contract his obligations under the contract. f) The claim by the claimant was against 3 associate dentists and one trainee dentist. g) The associates were self-employed dentists who were sub contracted to work for the defendant dentist. They were thus independent contractors who were delegated the obligations/duties of the dentist. h) The defendant provided the UK National health Service (NHS) dental care pursuant to the General dental Services contract with the local primary care trust. i) The claimant's dental treatment was paid for by the NHS. j) The claimant alleged that the defendant dentist owed her a non-delegable duty of care and argued that he should be personally liable for any negligence in the dental work sub-contracted by the defendant dentist to "the associates" and the trainee dentist. [62] What is pertinent in Hughes v Rattan is that the contract (written contract for the personal dental treatment plan) between the claimant and the defendant clinic for treatment was to be provided by the sole proprietor is the defendant dentist himself. This indicates that there was an antecedent relationship between the defendant and the plaintiff whereby the defendant had assumed responsibility for the claimant (which is a pertinent identifying feature as enunciated in Woodland), which is absent in our present appeal, which I will elaborate in the later part of this judgment. [63] Given the aforesaid, it cannot be said that Hughes v Rattan has gone beyond the principles as stated in Woodland and Dr. Kok Choong Seng in applying the doctrine of non-delegable duty of care in a given case. [64] The factual matrix surrounding the plaintiff's admission to D3 can be seen from the findings by the learned trial Judge, which is as follows: [57] D3 highlighted the fact that the plaintiff's predicament arose from the surgery that he underwent in another hospital, Subang Jaya Medical Center (SJMC) following which after discharge from SJMC he suffered bleeding from the operation site in the early hours of the morning in question. Despite advice from the surgeon concerned to having the plaintiff brought immediately to SJMC, his wife (PW 3) decided to seek treatment at D3 due to time factor and shorter distance from their home. [58] D3 also drew the court's attention to the fact that the plaintiff had not proffered any explanation or evidence for the cause of the post-operative bleeding." [65] The patient was earlier treated by another surgeon in SJMC. His admission to D3 was an emergency situation. There is no antecedent relationship between D3 with the patient. Therefore, D3 has not assumed a positive duty to protect the patient from harm/injury. At the material time, when the patient was admitted, D3 provided the relevant facilities, equipment, administrative facilities required for his admission and management of his ailment and treatment at the accident and emergency department. The only negligent act was that of D2 in intubating the patient. There was no finding of fact by the learned trial judge that D3 was negligent in its selection of D1 and D2, provision of facilities, or system of work, as can be discerned from the following paragraphs of the judgment: [63] Notably the crux of the plaintiff's claim revolved around the failure of D2 together with D1 to secure the airway urgently and to discuss the options to achieve this result as stressed by DW 3's expert ...A crucial point correctly made by D3 was that the "...option to secure the airway is purely a clinical matter, which is within the purview or expertise of the medical doctor/specialist. It would appear from the evidence on record that neither specialist/clinician...had discussed with the plaintiff, the options to secure the airway. This is purely a matter of professional or clinical judgment, and the responsibility to advise the plaintiff on the options to secure the airway, lay with DW 3 (D2) together with DW 1(D1)." As alluded to earlier, it was a judgment call within the expertise mainly DW 3 when such judgments are to be exercised. The Hospital as the employer could not be faulted or held liable for any negligence vicariously where no breach of duty of care by the Hospital was proved. [64] The same applied to the administration of anaesthesia to the plaintiff which was purely a clinical decision in the interest of the patient. DW3 took the necessary steps that she deemed fit to facilitate intubation of the airway, including rendering the patient unconscious and paralysed but could only intubate him on her second attempt. [65] In this regard the plaintiff's expert (PW 2) only levelled criticism at DW 3 for the manner she induced anaesthesia to the patient without first clearing the airway leading to serious consequences that according to DW 3, could have been avoided, no criticism was directed at the service and treatment provided by D3 to the plaintiff or the facilities available at D3 for being inadequate." [66] As to the second feature requirement (antecedent relationship) as required in Woodland, is not satisfied on the facts of the present appeal, the questions of how the hospital chooses to perform the duty (the third feature), the hospital's delegation of an integral part of that duty (the fourth feature), and the D2's negligence in the performance of the duty (the fifth feature) do not arise. Therefore, the non-delegable nature of the duty on D3 was not engaged. [67] In addition to the findings that non-delegable duty of care against D3 is not applicable, the High Court made findings of fact that D2 is an independent contractor with D3. [68] Independent contractors exists based on facts, namely function, role and relationships between individuals. It is not a legal fiction as contended by counsel for the plaintiff. In this regard section 4.6 of the Residential Consultant Agreement signed by D2 with D3 is relevant which clearly states that D2 is an independent contractor with D3, and not the agent, servant or representative of D3. It further provides that D2 shall be personally liable for any acts of negligence or omission committed by her or by her agents in the conduct of her professional practice at the hospital. D3 shall not be responsible for any tortious acts of D2 and D2 undertakes to fully indemnify D3 in respect of any claims or actions brought against D3 by any persons from any tortious or negligent acts of omissions of D2 or her agents. The present appeal falls neatly within the established category of independent contractors. It is a straightforward case of a true independent contractor, where there is no necessity to go through the circuitous route to invoke the principle of a non-delegable duty so as to make D3 liable, when the direct course of remedy according to torts law is readily available to the victim. In this regard, this Court in Dr. Kok Choong Seng has addressed and highlighted this precise issue: [89] It must be borne in mind that the expanded test of "relationships akin to employment" in Various Claimants was developed in the context of that particular case, where the extraordinary nature of the relationship between the teaching brothers and the Institute, though involving a high degree of control and all elements of an employment relationship, do not fall neatly within established categories of employees or independent contractors." (Emphasis included) [69] Lord Sumption has also underlined the limits of the expanded test of "relationships akin to employment" in Woodland when he stated: [3] The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment: Various Claimants v Catholic Child Welfare Society and others [2013] 1 All ER 670...But it has never extended to the negligence of those who are truly independent contractors" (Emphasis included) [70] In our present appeal, the fact that D2 charges consultancy fees and operation fees for her patients and D3 did not pay salary to D2, no EPF contributions support the inference that the operation was part of D2's independent business and that D2 is an independent contractor of D3. [71] The present case is unlike Woodland or Armes v Nottinghamshire County Council [2017] UKSC 60 where the doctrine provides the essential context justifying for the policy decision as evident from the supplementary judgment of Baroness Hale. She explicitly rationalised the context of the primary policy justification for the decision in Woodland, and emphasised that, if a non-delegable duty did not arise on the facts, there would be an unsatisfactory and inconsistent effect and anomaly in the law, namely, that private schools (contractually) and schools using their own employees (vicarious liability) would both be liable for a negligently conducted swimming lesson, whilst a school employing an independent contractor would not. In that sense, the decision would not make sense to ordinary people (paragraph 30 of Woodland). The decision was thus influenced by policy considerations that the innocent victim (be it from government or private schools) would equally be able to obtain compensation for the negligent act, be it employees of schools or independent contractors. [72] Similarly in Armes v Nottinghamshire County Council the majority of the Supreme Court in allowing the appeal and the claim decided that the local authority was vicariously liable for the abuse committed by foster parents, considered the policy justifications as set out by Lord Phillips in Various Claimants v Institute of Brothers of the Christian Schools [2013] 1 AER 670 to ensure compensation for the harm suffered by innocent claimants as an important factor. The local authority could more easily compensate the victim and can be expected to have insured against the liability, than foster parents who might have insufficient means (para 63 of Armes v Nottinghamshire County Council). As in Woodland, the Supreme Court in Armes v Nottinghamshire County Council also addressed the anomaly in the law where the man on the ground would be perplexed if the law is such that the local authority could be held vicariously liable for the abuse of the child by a member of the staff but not liable for the abuse of a child in the care of foster parents. It is also to be noted that the policy for the Supreme Court for the extension of vicarious liability was to ensure compensation and remedy for the innocent victims in the field of non-delegable duty of care, regardless whether the victim is under the care of the local authority or the foster parents. [73] Further, the 5 defining features of Woodland which Lord Sumption advocated is premised on schools which involved school children who were placed in the custody, charge or care of the school, where a particular high degree of care is called for. Lord Sumption also included in the case of prisons where prisoners are taken into custody. In both situations, the feature of an antecedent relationship exists between the school and student or prison authorities and detainees where there is custody, control and charge of the school children and detainees respectively. The antecedent relationship was formed when the students were taken into custody with the school whereas for the detainees, when they were placed under the charge and custody of the prison authorities. It was also the integral duty of the school (to provide education to the school children) and the prison authorities (to provide medical treatment to the prisoners) respectively, who were under their care and custody. Out of these antecedent relationships, $ 3^{\mathrm{rd}} $ parties' services are deployed by the school (provide swimming lessons to school children) or by the prison authorities (to provide medical treatment to the detainees) whereby these $ 3^{\mathrm{rd}} $ parties were negligent in providing the same. Such administration of providing swimming lessons to the school children or administration of medical treatment to the detainees arose directly out of the enrollment of the children into the school or out of the prison authority's detention of the detainees. These arose as part of the integral part of the positive duty the school or the prison authority assumed, towards the school children or the prison detainees respectively, notwithstanding that the performance of the duty had been delegated to a private contractor. In Woodland, Baroness Hale provides the basis in making the school liable: [34] ... The reason why the...school is liable is that...the school has undertaken to teach the pupil, and that responsibility is not discharged simply by choosing apparently competent people to do it. The...school remains personally responsible to see that care is taken in doing it." (Also refer to Coulson J in GB v Home Office [2015] EWHC 819 with regards to detention of detainees in prison centers) [74] In such circumstances it is possible to impute that the school or prison has taken custody of the students or prisoners, had assumed a positive duty to protect them from harm. The independent contractors engaged by the schools or the prisons to provide service for the students or the prisoners, would be for or on behalf of the schools or the prisons, respectively. It is in such circumstances that the school or the prison has delegated its integral function that is required of them for those under their charge and custody. [75] In contrast to our present appeal, it cannot be imputed that there is an assumption of a duty on the part of D3 to protect the patient from harm because there is no antecedent relationship between the patient and D3. This is a case where the patient went to D3 for an urgent medical care and treatment which was provided by D1 and D2, who were, undisputedly, independent contractors. In this respect, although D3 is not a public body, it is indeed providing critical health services (para 25 of Woodland). [76] Apart from the absence of an antecedent relationship between the patient and D3 in the present appeal to impose a non-delegable duty of care on D3, there is no compelling public policy justification for such an imposition. The normal application of the principle of liability of independent contractors in torts law would not left the patient without remedy/compensation, as evidenced from the award of damages granted by the Court of Appeal. [77] In support of applying the doctrine against D3, counsel for the plaintiff submits on the holding out by D3 in the Website which states: "As a patient of Columbia Asia Hospital, patients benefit from advanced medical diagnostics, treatment and personal care that only comes in facilities where the focus is on each patient. Our facilities are comprehensive so you can rest assured that we have all that you need for your treatments and procedures. State-of-the art equipment ensures that we are up to date with medical technology and updates. To find out what we have to offer, please see the list below: As a patient of Columbia Asia Hospital, you can expect: - To be informed of your medical treatment and care. - To be treated with courtesy and respect. - To be provided with adequate information and informed consent. - To be provided with a channel to address your feedback. - To be informed of the estimated charges. - To see an itemized bill upon request. - To know the identity and professional status of your care provider. - To be ensured the privacy and confidentiality of your medical record. - To receive care in an environment conducive to good health." [78] Counsel for the plaintiff also submits that D3 also used its note paper from the medical records and the contractual documents (including the bills). It included in the bill, its charges and also the charges for the services rendered on behalf of D3 (because it was a provider of healthcare) by its independent contractor doctors and its employees. Counsel for the plaintiff further submits that the whole bill sums were to be paid to the D3 (because of a contractual relationship with the patient and no part of the sums were to be paid direct to any independent contractor). [79] With regard to the aforesaid, I am of the view that, the issue of holding out, points to the fact as to what "facilities" D3 has to offer to patients who are admitted to D3. This, by itself is not determinative that D3 owes a non-delegable duty of care to the patient. In any event, it is not this "holding out" that attracted or lured the patient or the plaintiff into coming to D3. It is more of an emergency dire situation as the patient was bleeding profusely and D3 happened to be nearer to home. [80] The fact of the note paper being that of D3, the way the charges are billed and not being paid directly to the independent contractors are all inconsequential in the determination of whether D3 owes a non-delegable duty of care. It is also incorrect to say that the whole bill sums go to D3, because of a contractual relationship with the patient and no part of the sums were to be paid direct to any independent contractor. Counsel for the plaintiff suggests that a hospital takes a share of a doctor's charges for treatment provided to patients. That is also incorrect because as independent contractors, D1 and D2's charges on the services provided by them, that are collected by the hospital, goes to them and not the hospital. The hospital provides administrative services, charges for using the venue and equipment to the independent contractors whereby they collect payment from patients for itself in respect of hospital charges and for the independent contractors in respect of the doctors' charges. The hospital charges for the administrative services and charges provided to the independent contractors. Hence, it cannot be said that the independent contractor's private practice with the service of the hospital is conflated thereby imposing liability for the doctors' negligence on to the hospital premised upon non-delegable duty of care. The fee charges collected by the D2 (who is an independent contractor) point to the fact that the independent contractor and the hospital are separate business entities. In any event, non-delegable duty does not turn on these factors. [81] On the "control" issue of independent contractors vis-à-vis the medical practitioners by D3 by virtue of the provision in the Resident Consultant Agreement where they are required to be on call duty during emergency and D3 has the right to terminate them in cases where they failed to follow certain procedures or directions; those are terms and condition of an agreement entered into between D3 and D2 who is expressly stated as an independent contractors to be able to use the medical facilities and equipment provided by D3. From the Resident Consultant Agreement, D2's services are not subject to D3's control. D3 has no control on how D2 perform her principle duty, namely, to diagnose, make clinical judgment on treatment of the patient during the emergency. The right to terminate the services of D2 is a term in the agreement in the event of any breach of the agreement entered between D2 and D3 which is the normal consequence in any contract. [82] Hence issues on "holding out", "profit or fees sharing", "usage of the same note paper as D3 by the independent contractor", and "control" are not the determinative factors that would determine the existence of the non-delegable duty of care in our present case. In the absence of antecedent relationship between the patient and D3, there is no positive duty imposed on D3 in respect of the conduct of the management of the patient and the operation. Given the aforesaid, the Courts below did no err in making its findings on the facts, that non-delegable duty of care against D3 is not applicable. [83] Above all, Question 1 is not novel. Woodland and Dr. Kok Choong Seng's case settled the law on the applicability of the principle of non-delegable duty of care. The application of the doctrine is facts sensitive (refer to paragraph 70 of the judgment of Dr.Kok Choong Seng) and the case of Rattan v Hughes applied the ratio in Woodland. Never did Rattan v Hughes depart from Woodland or Dr. Kok Choong Seng. I therefore decline to answer Question 1. Question 2: [84] There is no prohibition in law for the common law tort of negligence to co-exist with the breach of separate duties of care imposed either under contract and/or by statute (if such is created by statute). [85] The question and the answer to Question 2 is of no relevance to D3's liability as no contract or any specific statutory provisions have been pleaded or invoked against D3. Neither was any evidence led by the plaintiff at trial to that effect. [86] There was no finding made by the Courts below of any wrong committed by D3, be it common law negligence, breach of any contract or statutory duty. [87] The question is not premised on the findings of the Courts below. In any event the answer would not have any determinative effect on the present appeal. I decline to answer Question 2. Question 3: [88] This issue is settled, if not trite. Hence, the question posed is not novel. Imposition of liability is not dependent on impecuniosity as held in Dr. Kok at page 711: [69] ...Non-delegable duties are not imposed based on financial means or profit; ...To allow liability to be imposed not based on principle but on whoever has the deepest pockets would, to borrow the words of Glanville Williams, "render unintelligible the distinction between tort liability and national insurance." [89] Insufficiency of indemnity for malpractice is never the consideration in the determination of non-delegable duty of care of private hospitals. The present appeal appears to impose liability on D3 because of the insufficiency of the medical indemnity insurance of D2 to meet up with the amount of the award of damages awarded. There is nothing to stop the plaintiff from making a claim against D2. Neither is it the prerequisite to a claim herein that D2 should be adequately insured. Liability does not depend on being adequately insured. Nor has it been shown that D2 is insolvent or a person without means. [90] Relevant to this issue is the comment by Lord Reed in Cox v Ministry of Justice [2016] UKSC 10. Although he was addressing the underlying policy of vicarious liability which was said "to ensure that liability for tortious wrongs is borne by the defendant who has the means to compensate the victims", the comments are relevant to the issue at hand: [20] The five factors which Lord Phillips mentioned in para 35 are not all equally significant. The first - that the defendant is more likely than the tortfeasor to have the means to compensate the victim, and can be expected to have insured against vicarious liability-did not feature in the remainder of the judgment, and is unlikely to be of independent significance in most cases. It is, of course, true that where an individual is employed under a contract of employment, his employer is likely to have deeper pocket and can in any event be expected to have insured against vicarious liability. Neither of these, however is a principled justification for imposing vicarious liability. The mere possession of wealth is not in itself any ground for imposing liability. As for insurance, employers insure themselves because they are liable; they are not liable because they have insured themselves." (Emphasis included) [91] Again, this question is not novel as the issue raised in the question is settled by the case laws as aforesaid. I decline to answer Question 3. Question 4: [92] Question 4 is dependent on the answer to Question 3 to be in the affirmative. [93] As I have declined to answer Question 3, I also decline to answer Question 4. [94] In any event, for completeness, it is the principle of Non-Delegable Duty of care that it is an exception to the no-fault principle. If the principle applies (which ought not to be, in the present appeal), there is no question of D3 escaping liability merely on the reason that D2 is an independent contractor. Question 5: [95] Question 5 raises the issue of whether the owner and manager of a private hospital is under a statutory duty of care, independent of a duty in negligence or contract, under the PHFSA and Regulations. [96] Firstly, the PHFSA uses the term "licensee" rather than "manager" or "owner". I have addressed this issue in Question1. [97] Secondly, the particular question is framed in a broad manner with no specific reference to any statutory provision. The pleadings are also devoid of any reference to any provisions of the law or regulations. [98] Thirdly, the question did not state to whom is the statutory duty of care owed. [99] At best, the allegations of negligence by the plaintiff against D3 is at paragraph 26.38 of the Statement of Claim where the plaintiff states as follows: "PARTICULARS OF NEGLIGENCE AND BREACH OF CONTRACTUAL AND OTHER DUTIES OF THE $ 3 ^{R D} $ DEFENDANT AND ITS SERVANTS AND AGENTS

38 failed to act in accordance with its statutory duties as provided under the Private Healthcare Facilities and Services Act 1998 and the subsidiary legislation thereunder regarding the provision of proper facilities and services, patient welfare and safety, staffing requirements, the recording, sharing and transmission of information, screening, investigations, diagnosis, treatment and advice, the giving of advice and information to patients and the taking of consent, the referral and transfer of patients, and advice and counselling regarding the likely cost and expense of the screening, investigations, diagnosis, treatment and management provided or to be provided" [100] In presenting its arguments in this respect before the Court of Appeal, the plaintiff only referred to regulation 11(4) stating that the defendant "should be found vicariously liable and also in breach of its noncontractual delegable duty of care". For clarity, Regulation 11(4) provides: "All registered medical practitioners or registered dental practitioners privileged to practise in the private healthcare facilities or services shall be considered as part of the organization." [101] Counsel for the plaintiff submits that the services provided by a medical practitioner who are independent contractors at D3 are integrated into the private healthcare facilities or services provided by D3. Counsel for the plaintiff referred to Lord Reed's suggestion in Armes v Nottinghamshire County Council that "The most influential idea in modern times has been that it is just that an enterprise which takes the benefit of activities carried out by a person integrated into its organization should also bear the cost of harm wrongfully caused by that person in the course of those activities" (at para 67). Again, this should not be taken out of context. A reading of the entire paragraph 67 of the case would provide a better understanding of why the statement was made. It cannot be read by nit-picking certain sentences in the said paragraph. In any event, that statement does not represent the law, ratio nor justification in imposing non-delegable duty of care. Neither does it provide clarity as to what does "enterprise", "integrated", and "benefits" mean. [102] In any event, regulation 11(4) is not the determinative provision that impose a non-delegable duty of care on D3. At best it shows that the medical practitioners forms part of the organization of D3. Nothing stated about liability of D3 in the provision and nothing turns on it. This is not the correct approach in trying to pin non-delegable duty of care on D3 for the negligent act of the medical practitioner who is expressly described as "independent contractor" by virtue of her Resident Consultant Agreement with D3. I do agree that labels ascribed to a wrongdoer are not the determining factor to determine the existence of non-delegable duty of care. However, one is bound to refer to the principles and the 5 identifying features as held in Woodland and Dr. Kok Choong Seng in making determination of whether such non-delegable duty of care exists, which on the facts of the present appeal, has not been fulfilled. Again, I need to emphasized again, the policy context in which Woodland was decided and Lord Sumption cautionary words that imposing the non-delegable duty of care should be an exception rather than the rule. [103] With regards to whether the owner and manager of a private hospital is under a statutory duty of care, independent of a duty in negligence or contract, under the PHFSA and Regulations, it is important to refer to the provisions of the statute and regulations. [104] The PHFSA permits sole proprietors, partnerships, body corporates and societies to apply for licences "to operate or provide a private healthcare facility or service other than a private medical clinic or a private dental clinic". [105] Referring to the provisions in the PHFSA and Regulations, specific to emergency situation as in the present appeal, section 78 of the PHFSA and Regulation 14 thereof states that the management and treatment of a patient "vested" with the medical practitioner and that the patient is under the "direct care or treatment" of the medical practitioner. The words "vests" and "direct care or treatment" in section 78 and Regulation 14 bear great significance in delineating the duty of a licensee (as for D3) and medical practitioners (as for D2). [106] The duty of D3 as is provided under the PHFSA and the Regulations is to ensure that the management, medical care and treatment that the patient needed on an urgent basis were made available and provided by the registered medical practitioners at the material time. In this regard section 38 of the PHFSA provides that: "38. (1) Every licensed and registered private healthcare facility or service shall at all times be capable of instituting and making available, essential life saving measures and implementing emergency procedures on any person requiring such treatment or services.

The nature and scope of such emergency measures, procedures and services shall be as prescribed." (Emphasis included) [107] Regulation 230 states: "230. (1) All private healthcare facilities or services shall have a welldefined care system for providing basic outpatient emergency care services to any occasional emergency patient who comes or is brought to the private healthcare facilities or services by chance.

The nature and scope of such emergency care services shall be in accordance with the private healthcare facility or service's capabilities.

All private healthcare facilities or services shall provide immediate emergency care services which include life-saving procedures when life, organ or limb is in jeopardy and management of emergency psychiatric conditions.

Assessment of a patient's condition to determine the nature urgency and severity of the patient's immediate medical need and the timing and place of the patient care and treatment in a private healthcare facility or service shall be done by a registered nurse, registered medical assistant or a registered medical practitioner and in the case of a dental service, by a registered dental practitioner.(2) Notwithstanding paragraph (1) (a), different persons may be appointed to manage and assume the duties and responsibilities relating to non-clinical matters including financial, administration and management of non-clinical resources." [108] Section 31 of the PHFSA provides: "(1) A licensee or a holder of a certificate of registration in respect of a licensed or registered healthcare facility or service shall-

ensure that the licensed or registered private healthcare facility or service is maintained or operated by a person in charge;

inspect the licensed or registered private healthcare facility or service in such manner and at such frequency as may be prescribed;

ensure that persons employed or engaged by the licensed or registered private healthcare facility or service are registered under any law regulating their registration, or in the absence of any such law, hold such qualification and experience as are recognized by the Director General; and

comply with such other duties and responsibilities as may be prescribed.

Notwithstanding paragraph (1)(a), different persons may be appointed to manage and assume the duties and responsibilities relating to non-clinical matters including financial, administration and management of non-clinical resources.

Where a licensee or a holder of a certificate of registration who is a sole proprietor contravenes subsection (1), he commits an offence and shall be liable on conviction to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Where a licensee or a holder of a certificate of registration who is a body corporate, partnership or society contravenes subsection (1), it commits an offence and shall be liable, on conviction to a fine not exceeding three hundred thousand ringgit.

Where an offence under subsection (1) is committed by a body corporate, a partnership or a society-

in the case of a body corporate, the person responsible for the body corporate;

in the case of a partnership, every partner in the partnership;

in the case of a society, its office bearers shall also be guilty of the offence and shall be liable, on conviction to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both." (Emphasis included) [109] There is no evidence adduced to show that section 38 of the Act or the Regulations thereunder, were not complied with. Neither was there any allegation by the plaintiff that there was negligence in the selection by D3 of D2. The function of D3 in "instituting and making available, essential life saving measures and implementing emergency procedures on any person requiring such treatment or services" is akin to an act to arrange for the facilities to be made available for the treatment of the patient. In this case D3 has ensured that D2 are registered and skilled in the management and treatment of patient. Therefore, in the absence of the negligence on the part of D3 in the selection of D2, D3 would not be liable for the negligence of D2, who is an independent contractor, where upon analysis, the duty of D3 is not to perform the management and treatment of the patients but to make available the essential life saving measures and implementing emergency procedures on the patient requiring such treatment or services as required under the PHFSA and the Regulations. [110] It is trite law that it is the person who commits the tortious act or breaches a contractual duty that is liable for any negligence. That being the case, liability for breach of duty in tort (if any) would be imposed on the licensee which/who, operates a private hospital, assuming that it is that licensee who contracts with a patient, for breach of a contractual duty. [111] Assuming that the owner or manager of the private hospital is synonymous with the licensee, then the owner or manager is liable for any such breach of duty. This is supported by section 31 of the PHFSA, which imposes criminal liability on the licensee and the persons controlling the registered healthcare facility. However, in the present appeal, there is no such evidence of any breach of contractual duty. [112] The Privy Council in Gulf View Medical Centre v Tesheira (The Executrix of the Estate of Russel Tesheira) (Trinidad and Tobago) [2022] UKPC, in a unanimous decision, cited with approval in Woodland and Armes Northinghamshire County Council, which is an appeal arising from decisions on claims for medical negligence against a private hospital, a consultant urological surgeon and a consultant anaesthetist and held that: "[51] A non-delegable duty of care arise under statute (see Armes v Nottinghamshire County Council [2018] AC 355 at para 38) or at common law (see Woodland v Swimming Teachers Association and others [2014] AC 537) or alternatively by admission on the pleadings..." [113] The PHFSA nor its Regulations do not impose liability on an owner or manager for civil claims where they are not the licensee. Where the licensee is a company, this preclusion applies to its shareholders, directors and management. [114] There is no statutory provision imposing responsibility or liability for negligence, fault or wrong on D3 (the licensee) committed by D2 who is an independent contractor. To infer from the provisions of the Act and its Regulations on such liability would be an overstretch. Such liability, if any, arises under the common law of liability under vicarious liability or non-delegable duty of care. Neither did the plaintiff indicate in her pleadings nor submissions, as to which provision of the PHFSA or the Regulations did D3 breached, whereby non-delegable duty of care can be imposed. At best the allegations of negligence by the plaintiff against D3 is as stated at paragraph 26.38 of the Statement of Claim, which the High Court had made findings of facts that it was not proven. [115] Given the aforesaid, the answer to Question 5 would be in the negative. Question 6: [116] Answering this question would not have any effect on the appeal for the following reasons. [117] Firstly, the High Court and the Court of Appeal had made concurrent findings that D3 is not liable for the negligent act. D2 was found to be liable for the same and an award of damages had been ordered against D2. There is no appeal by D2 and neither is there any appeal by the plaintiff against the findings of liability and damages against D2 by the Courts below. [118] Secondly, the appeal before this Court is only against the dismissal of the claim under non-delegable duty of care against D3. To that extent, the findings of liability and the award of damages against D2 stands as final. [119] Hence, even assuming for a moment, that liability is found against D3 now (which ought not to be) the quantum of damages (of which D2 has been found to be liable by the Courts below) can no longer be varied, nor transferred to D3. [120] The patient suffered injury from one negligent act. There cannot be 2 sets of awards for the same negligent act. I agree with the submission of counsel for D3 that "the assessment of damages is a determination of damages suffered by the patient and not how much damages each defendant is to separately bear for the same tort." [121] Thirdly, D3 is not a joint tortfeasor with D2, as it was never pleaded as such. Hence, there is no issue of the apportionment of damages between D2 and D3. Moreover, the damages cannot be split because the premise of liability on D2 and D3 are distinct and separate. If this Court found that D3 owes a non-delegable duty of care, then D3 ought to be liable for the negligent act and liable to pay for the whole sum of damages. Then what is to become of the damages awarded to D2. It would create an absurd situation where D2 is liable as an independent contractor and liable for damages and that D3 is liable based on non-delegable duty of care and also liable to pay for damages as well. [122] Given the aforesaid, both the courts below did not err in finding liability against D2 as an independent contractor and that D2 is liable to pay damages for the negligent act. [123] Therefore, I decline to answer Question 6. Question 7: [124] It is settled law by virtue of Dr. Kok Choong Seng which held that the guiding principles as refined in Woodland be used as a starting point. As the imposition of a non-delegable duty of care is an onerous obligation, it is reiterated by this Court in the same case that the proviso in Woodland that such duties should only be imposed where it is "fair, just and reasonable depending on the facts of each case" (see Dr. Kok Choong Seng at page 708). [125] This was the overriding principle which was made subject to, in imposing the non-delegable duty of care, as can be discerned from the judgment by Lord Sumption: "25. The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so. ..." [126] I am also reminded of the cautionary statement by Lady Hale which was reiterated by Lord Reed JSC in Armes v Nottinghamshire County Council: "36. The five criteria set out by Lord Sumption were thus intended to identify circumstances in which the imposition of a non-delegable duty was fair, just and reasonable. It is important to bear in mind Lady Hale's cautionary observation that such judicial statements are not to be treated as if they were statutes, and can never be set in stone. Like other judicial statements, the criteria articulated by Lord Sumption JSC may need to be reconsidered and possibly refined, in particular contexts. That does not, however mean that it is routinely necessary for the judge to determine what should be fair and just as a second stage of the analysis." (Emphasis included) [127] What can be inferred from the aforesaid is that, although it should not be routinely necessary to determine whether the imposition of such a duty is fair, just and reasonable, such determination may be necessary to be considered in certain circumstances. [128] This is reflected in the decisions of Woodland and Armes Nottinghamshire County Council which were influenced by policy considerations and the Court's view that claimants should be able to obtain compensation from defendants who are solvent as well as insured. The Supreme Court in Armes Nottinghamshire County Council, in allowing the appeal held that the local authority was vicariously liable for the abuse committed by the foster parents considered the policy reasons as set out in Various Claimants v Institute of Brothers of the Christian Schools [2013] 1 All ER 670 to ensure compensation for harm caused to innocent victims as an important factor. It is considered that most foster parents have insufficient means to be able to meet a substantial award of damages. [129] In our present appeal, damages were awarded by the Courts below to the patient against D2. D2 is insured and there is no evidence led that D2 have insufficient means to meet the award of damages. In other words, there is compensation awarded for the harm suffered. There is no issue the patient being left without any remedy. There is absolutely no basis for the plaintiff to impose liability based on the doctrine. [130] In any event, since there is no non-delegable duty of care imposed on the D3, the issue whether the imposition of such duty is just, fair and reasonable does not arise. [131] Hence, the answer to Question 7 would be in the affirmative. Other issues: [132] Counsel for the plaintiff referred to the case of Breakingbury v Croad [2021] MED LR 509, however, the negligence which was found was related to the core function of the Dental Practice which was sued. This can be found in the judgment: "Negligence related to a core function

In my view this characteristic is readily met. The pleaded allegations of negligence relate to the central function of the practice, namely the provision of dental services.

Having found that the characteristics identified by Lord Sumption have been met. It is nevertheless necessary to stand back and ask whether it is right to impose a non-delegable duty. The characteristics are not a statute and as such the court must pause and consider the overall position. In so doing, it seems to me that there is good reason to impose a duty in this case. It is undoubtedly a cause of great concern to the defendant. It may well be something that the wider dental community might find unexpected. However, if one stands back and asks if a practice (here the defendant personally since he owns it) it should owe a duty to a patient for whose care they are paid by the Local health Board, then the answer must well be entitled to an indemnity from the individual associate dentists and that may well go some way to dealing with any perceived unfairness, but that is a matter for the practice and the associate. It should not, it seems to me, prevent a claimant recovering against the practice with whom she is registered and who have been paid for her care." (Emphasis included) [133] The words highlighted reflects the finding by the Court that the delegation by the Practice of its core function which means that there is an assumption of a positive duty to ensure that care is taken by whomsoever is delegated with the work which was an integral/core function of the Practice. Hence, the findings that the characteristics identified by Lord Sumption has been met. [134] However, caution must be exercised in referring to Breakingbury v Croad as it is a County Court Judgment. Reliance on County Court judgments sets a worrying trend as such judgment is not a binding precedent. [135] On the Vincent Manickam s/o David (suing by himself and as administrator of the estate of Catherine Jeya Sellamah, deceased) & 2 Ors v Dr. Hari Rajah & Damansara Specialist Sdn Bhd [2018] 2 MLJ 497's case referred to, by counsel for the plaintiff, Dr. Kok Choong Seng, which has adopted and accepted the ratio of Woodland which has been applied in various cases post Dr. Kok Choon Seng. The facts disclosed that the patient was earlier admitted to the respondent hospital where she underwent surgery (indicating that there was an antecedent relationship between the patient and the hospital), unlike the facts in our present appeal. In any event in Vincent Manickam, the hospital was found to be vicariously liable for the negligence of the surgeon. CONCLUSION: [136] Time and again it has been reiterated that the imposition of nondelegable duty of care are highly facts sensitive. Accusations outside of well-established principles to say that such non-delegable duty of care exists needs to be properly scrutinized and applied with extreme caution, given that nondelegable duty is inconsistent with fault-based principles and is exceptional. The underlying legal framework in which the identifying features were crafted by Lord Sumption has substantial restrictions and controls and it would only be in exceptional situation before a Court finds that the duty was a non-delegable one. The criteria for an antecedent relationship, positive duty and integral function has high threshold to meet. The Supreme Court in Woodland has not widened the scope of non-delegable duty of care. Often, there is a tendency to look for a defendant who has deeper pockets, to satisfy compensation claims, under the guise of a non-delegable duty of care when there is a clear case of an independent contractor or employer-employee relationship, which sets a worrying trend. [137] In the present appeal, D3 is providing critical health service, where the patient was treated earlier in another hospital and was brought to D3 due to a critical and emergency situation, a life and death situation. Lord Sumption had cautioned against imposing unreasonable financial burdens on those providing critical public services and that a non-delegable duty should be imputed only so far as it would be fair, just and reasonable to do so. Where the criteria of his framework are satisfied, the imposition of a non-delegable duty would not cast an unreasonable burden, however that is not the case in the present appeal. [138] Caution should be exercised when Courts expand the area of liability of non-tortfeasors (where we are expanding areas of vicarious liability). Reason being, this is the realm of policy, which is an unfamiliar territory for the Courts and if such duty ought to be expanded and imposed on private hospitals or medical institutions like D3, it would be wise for it to be provided by legislation since it affected medical institutions and the medical profession who are independent contractors, which technically are not being controlled in performance of their medical duty by hospitals like D3. Judicial legislation/pronouncement is always based on facts situation of a particular case which means the lines are blurred between vicarious liability and non-delegable duty of care, which adds up to the unpredictability in the application of the imposition of a non-delegable duty of care. [139] As far as the present appeal is concerned, it is a clear and a straight forward case of negligence of an independent contractor, D2. There is no ambiguity in the relationship between D2 and D3 as evident from the Resident Consultant Agreement. There is also no issue of the plaintiff being deprived of remedy or compensation for the negligence act of D2. Therefore, there is no necessity to invoke policy justification nor policy consideration to impose liability on D3 through the difficult route of the application of the doctrine of non-delegable duty of care for the negligence committed by its independent contractor, D2. This is unlike the facts as in: - Woodland (where the vicarious liability is not applicable, and non-delegable duty provide appropriate means of securing equal protection to innocent victims); - Armes Nottinghamshire County Council (where without the application of the non-delegable duty of care, the decision would result in an unsatisfactory and inconsistent effect and anomaly in the law which would not make sense to people on the ground); or - Cassidy v Ministry of Health [1951] 2 KB 343 (where the Courts were grappling with the issues of non-applicability of vicarious liability and the victim being left with no remedy/compensation or that the exact cause of the injury or the employee of the hospital that caused the injury could not be ascertained/identified). The principle of non-delegable duty of care provides a tool in such cases, in the pursuit of social justice to circumvent the limitations of the doctrine of vicarious liability so as not to deprive the innocent victims of a remedy or compensation. In such cases, the imposition of a non-delegable duty of care is just, fair and reasonable. However, in our present appeal, it is the reverse. The imposition of the doctrine on D3 would not be fair, just and reasonable in the circumstances and would present a grossly unfair burden imposed on health institutions providing critical public health services, more so in emergency situations. I do agree with the submission of counsel for D3 that "great care must be taken to avoid imposing unnecessary obstacles to the public in gaining access to healthcare. [140] The doctrine of non-delegable duty is not applicable to the fact situation of the present appeal. Both the High Court and the Court of Appeal did not err in dismissing the claim against D3. There is no statutory duty imposed on D3 that would render D3 liable for the negligence of a registered medical practitioner who is an independent contractor and not an employee of the Hospital. [141] The answers to the questions posed are as follows: Question 1 - decline to answer. Question 2 - decline to answer. Question 3 - decline to answer. Question 4 - decline to answer. Question 5 - negative. Question 6 - decline to answer. Question 7 - affirmative. The questions as answered above will not result in D3 being liable in respect of D2's negligence towards the patient. [142] Given the aforesaid, the appeal is dismissed with costs to D3. Zabariah binti Mohd Yusof, Judge of the Federal Court, Putrajaya Dated: 23.2.2024 COUNSEL: Manmohan S. Dhillon together with Karthi Kanthabalan and Desmond Mun for the Appellant. (Messrs. P.S. Ranjan & Co.) Dato' Ambiga Sreenevasan together with Janini Rajeswaran, T. Tharumarajah, Amos Siew Yih Jhien and Anishaa Sundramoorthy for the Respondent. (Messrs. Azim, Tunku Farik & Wong)