NON-DELEGABLE DUTY OF CARE : IMPLICATIONS FROM SIOW CHING YEE V COLUMBIA ASIA SDN BHD [2024] 3 MLJ 66

NON-DELEGABLE DUTY OF CARE : IMPLICATIONS FROM SIOW CHING YEE V COLUMBIA ASIA SDN BHD [2024] 3 MLJ 66

Factual Background

The Appellant, represented by his wife, suffered hypoxic brain damage after complications during emergency care at a hospital managed by the Respondent. The case was predicated on the alleged negligence of two doctors—a consultant ear, nose, and throat (ENT) surgeon and an anesthetist—both engaged as independent contractors by the hospital. The High Court found the anesthetist negligent but held that the ENT specialist was not liable. However, the High Court absolved the hospital of direct liability, citing the doctors’ independent contractor status. At the Court of Appeal, the finding in regard to the Respondent was sustained.

Therefore, the Appellant appealed to the Federal Court on the basis that the hospital owed a non-delegable duty of care to its patients, irrespective of the independent contractor arrangement, and in respect of quantum.

Key Legal Issues

Among the issues addressed by the Federal Court are as follows:

  1. Non-Delegable Duty of Care of a Hospital : 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 admitted to its facilities?
  2. Statutory Duties Under Private Healthcare Facilities and Services Act 1998 (“PHFSA”) : Whether the PHFSA imposes an independent statutory duty of care on hospital owners and managers?

Decision

By way of majority judgment, the Federal Court allowed the appeal, holding that the Respondent bears a non-delegable duty of care to patients, which remained intact despite the employment status of its practitioners.

The principle of non-delegable duty of care was adopted in Malaysia, referring to the test propounded in Woodland v Essex County Council [2014] 1 All ER 482 (“Woodland”). Prior to this judgment, the Federal Court in Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 (“Dr. Kok”) had recognized and adopted the Woodland features. However, in that case, the hospital was not found to be liable as the second feature was not met. The five-features or Woodland features are as follows[1]: –

  1. 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;
  2. there is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself:
  3. which places the claimant in the actual custody, charge or care of the defendant; and
  4. 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.
  5. the claimant has no control over how the defendant chooses to perform those obligations, ie whether personally or through employees or through third parties;
  6. 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; and
  7. 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.

The Court found that the Respondent is liable for non-delegable duty of care as the five-features in Woodland has been satisfied as[2]:-

  1. the patient was in total reliance to the Respondent for his care and treatment;
  2. the antecedent relationship was met by the statutory framework of PHFSA and by the fact that the patient was treated by the Respondent’s employee, in the Respondent’s premises and using the Respondent’s facilities and services;
  3. the patient has no control over how he would be treated and by whom;
  4. the Respondent had delegated to its medical officer and the specialists (D1 and D2), the performance of its obligations; and
  5. D2 has negligently performed the very function of rendering proper emergency care and treatment to the appellant that was assumed by the Respondent but delegated to D2 by the Respondent.

The Court also rejected the Respondent’s argument that liability could be mitigated by the practitioners’ status as independent contractors. The hospital was deemed personally liable for breaches of the non-delegable duty of care, regardless of any indemnity arrangements with the anesthetist.

On the issue of statutory regime, the Court has examined the totality of the provisions in the PHFSA in concurrent with the discussion on the Woodland feature as it adopted the views from plethora of authorities that an examination of the statutory framework is relevant and necessary in determining the issue of non-delegable duty of care. On this, the Federal Court held that[3]: –

All these provisions fortify the understanding that the hospital is and remains responsible for not just the efficacy of premises or facilities but also for the treatment and care of the patients; regardless how and who the responsibility may have been delegated to. This is the intent of the legislative scheme, to the extent that the policy of the private hospital or healthcare facility or service is required to be placed in a conspicuous place of the premises so that persons coming to the hospital or healthcare facility or service is aware of such policy. Implicit in this structure and legislative scheme is already the balance and incorporation of the elements of fairness, just and reasonableness which need not be reconsidered as an entirely separate exercise or consideration. Persons approaching, using and relying on the treatment and healthcare rendered in these facilities and services should never have to concern themselves with issues of responsibility and separate accountability as negligence and mishaps would be furthest from their minds.

After full examination of the PHFSA, it was held that the intent of the legislation is that the Respondent assumes non-delegable duty of care to its patient and remain personally liable for the negligence of D2.

Conclusion

This decision fortifies the position of the non-delegable duty of care of owner and manager of private hospitals as held in Dr. Kok which further discussion was made on the statutory duty of care and statutory framework in Malaysia regarding the application of PHFSA. The Federal Court’s decisions have strengthened the legal protection afforded to patients, particularly in emergency scenarios where reliance on hospital systems is absolute. Hospitals are now unequivocally accountable for the standard of care provided within their facilities and subject to other features in the Woodland features.

Private hospitals must reassess their contractual arrangements with independent contractors to ensure compliance with non-delegable duty obligations. This may involve revisiting indemnity agreements, enhancing supervision protocols, and investing in robust risk management frameworks. Moving forward, hospitals must ensure that their operational practices align with these heightened standards of care, fostering greater trust and safety within the Malaysian healthcare system.

If you have any questions or queries, please contact our Dispute Resolution Senior Associate, Azrul Haziq  (azrul@nzchambers.com).

Author: Azrul Haziq

References:

[1] See para 174 of Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 3 MLJ 66

[2] See para 222-223 & 226-227 of Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 3 MLJ 66

[3] See para 219 of Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 3 MLJ 66