Siow Ching Yee v Columbia Asia Sdn Bhd

Introduction

Can a private hospital still rely on the “independent contractor” defence when a patient sues it for negligence? Vicarious liability is the legal liability imposed on one person for a tort, usually negligence, committed by another that causes harm or loss to a third party. It is most commonly based on the employment relationship, which makes the employer liable for the acts of the employee. Can patients now sue the hospital directly if something goes wrong, without being forced to prove whether the doctor was an employee or not? More precisely, does a hospital owe a patient a separate, non-delegable duty of care to ensure that he does not suffer harm or injury through any act or omission of its employees or independent contractors? This intriguing question lay at the heart of Siow Ching Yee v Columbia Asia Sdn Bhd, decided by the Federal Court on 23 February 2024.¹

The panel comprised Mohamad Zabidin Mohd Diah, Chief Judge of Malaya; Abdul Rahman Sebli, Chief Judge of Sabah and Sarawak; and Zabariah Yusof, Hasnah Mohammed Hashim and Mary Lim, Federal Court Judges.

The controversy began when Siow Ching Yee, suing through his wife and litigation representative, Chau Wai Kin (the “appellant”), sued the ear, nose and throat surgeon (“D1”), the consultant anaesthetist (“D2”) and a private hospital, Columbia Asia Sdn Bhd (the “respondent”), for damages for negligence and breaches of contract and statutory duties. The appellant claimed that the respondent was vicariously liable for the negligence of D1 and D2, and was also directly liable for D2’s negligence based on the principle of non-delegable duty of care. The respondent denied all liability. It asserted that, as owner and manager of the hospital, it merely provided the facilities, medical equipment and nursing staff, whereas D1 and D2, as independent contractors under contracts for services with the respondent, were wholly responsible for the diagnosis and treatment of the appellant.

The trial court found D2 solely liable for negligence and dismissed the appellant’s suit against D1 and the respondent. Both the appellant and D2 appealed against the whole of the decision, although the appellant subsequently withdrew his appeal against D1. The Court of Appeal dismissed D2’s appeal, increased the damages awarded against her and affirmed the decision that the respondent was not liable for D2’s negligence. The appellant then appealed to the Federal Court against the finding that the respondent was not liable, asking the court to allow the appeal and enter judgment against the respondent for the full sum he had submitted.

Facts

Twelve days after undergoing a tonsillectomy, palatal stiffening and endoscopic sinus surgery at another private hospital, Subang Jaya Medical Centre (“SJMC”), the appellant suffered bleeding at the site of the operation. The bleeding was heavy and constituted an emergency, so his family decided to take him to the emergency department of a hospital nearer to home, the respondent. D1 advised immediate surgery to stop the bleeding. The appellant consented, and the surgery was to be undertaken by D1, with D2 administering the anaesthesia.

When the appellant entered the airlock area outside the operating theatre, his bleeding became worse and he began vomiting, making it difficult to secure his airway for intubation. His blood pressure and oxygen levels dropped, but his condition stabilised after cardio-pulmonary resuscitation was administered. The intended surgery was then performed and the appellant was transferred to the intensive care unit for observation. By that time, however, he had already suffered severe hypoxic brain damage, which was found to be due to the negligence of D2.

Legal Issues and Arguments

The legal issue in this case is whether the consultant anaesthetist’s negligence, as an independent contractor, made the hospital where she practised also liable.

Under the requirements of vicarious liability, an employer will be vicariously liable where a tort has been committed, the person who committed it was an employee (that is, there was a special relationship between the person held responsible and the person who committed the act), and the employee was acting in the course of employment when the tort was committed. Under the strict rules of vicarious liability, the acts of independent contractors cannot make the employer liable. Accordingly, this argument was abandoned before the appellate court.

The legal issue before the Federal Court was therefore whether the hospital itself owed the patient a separate, non-delegable duty of care to ensure that he would not suffer harm or injury through any act or omission of independent contractors. An employer can also be liable in situations where the duty is non-delegable. The liability imposed under the doctrine of non-delegable duty and the doctrine of vicarious liability are similar in effect: both result in liability being imposed on a defendant for the injury suffered by the plaintiff as a result of the negligence of another party, the tortfeasor. However, the nature and basis of liability differ. Under a non-delegable duty, the defendant is personally liable, because the duty is one the defendant has assumed and cannot pass on by engaging someone else to perform the task. A non-delegable duty of care is in essence a positive duty to ensure that reasonable care is taken, and it must be pleaded.

The landmark case on non-delegable duty of care, Woodland v Essex County Council, established five features that have been applied in Malaysia.² It was noted that a non-delegable duty of care would be imposed only so far as it would be fair, just and reasonable to do so, on a case-by-case basis.

Hence, the critical question for the court was whether the respondent itself owed the appellant a separate, non-delegable duty of care to ensure that he would not suffer harm or injury through any act or omission of independent contractors.

Court’s Decision and Reasonings

The Federal Court delivered a 4-to-1 majority decision in favour of Siow Ching Yee. The majority judgment was delivered by Mary Lim FCJ, while Zabariah Yusof FCJ delivered the dissenting judgment.³

Zabariah Yusof FCJ (Dissenting)

Zabariah Yusof FCJ held that the respondent should not be held liable for the negligence of independent contractors. The doctrine of non-delegable duty of care was not applicable to the facts of the appeal, and both the High Court and the Court of Appeal did not err in dismissing the claim against the respondent. Nor was there any statutory duty imposed on the respondent that would render it liable for the negligence of a registered medical practitioner who is an independent contractor and not an employee of the hospital.

Generally, the doctrine of non-delegable duty of care imposes liability on a non-tortfeasor, that is, a person who did not commit the negligent act. In Cassidy v Ministry of Health, Denning LJ, in his minority judgment, identified the principle of the doctrine: where a person is himself under a duty to use care, he cannot get rid of that responsibility by delegating its performance to someone else, whether the delegation is to a servant under a contract of service or to an independent contractor under a contract for services.⁴ This ratio differs from the principle of vicarious liability.

Besides that, an insufficiency of indemnity for malpractice is never a consideration in determining whether a private hospital owes a non-delegable duty of care. The present appeal appeared to impose liability on the respondent because D2’s medical indemnity insurance was insufficient to meet the damages awarded. However, there was nothing to stop the appellant from making a claim against D2. Neither is it a prerequisite to the claim that D2 be adequately insured: liability does not depend on adequate insurance, nor was it shown that D2 was insolvent or a person without means. In any event, the principle of non-delegable duty of care is an exception to the no-fault principle, the ordinary rule that liability follows fault. If the principle applies, there is no question of the respondent escaping liability merely on the ground that D2 is an independent contractor.

Moreover, Zabariah Yusof FCJ recalled the cautionary statement by Lady Hale, reiterated by Lord Reed JSC in Armes v Nottinghamshire County Council, that the five criteria articulated by Lord Sumption JSC in Woodland may need to be reconsidered and possibly refined in particular contexts.⁵ Although it should not be routinely necessary to determine whether the imposition of such a duty is fair, just and reasonable, such a determination may need to be considered in certain circumstances. This was reflected in Woodland and Armes, both of which were influenced by policy considerations.

There was also no antecedent relationship between the respondent and the appellant, who had earlier been treated by another surgeon at SJMC. His admission to the respondent was an emergency, and that emergency visit did not create a pre-existing bond or a positive duty to protect the appellant. Hence, the respondent had not assumed a positive duty to protect the patient from injury. The second Woodland feature, namely an antecedent relationship between the claimant and the defendant from which an assumption of responsibility to protect the claimant from harm can be imputed, was not satisfied on the facts of the present appeal.

Besides that, the residential consultant agreement signed by D2 and the respondent is relevant. It clearly stated that D2 was an independent contractor of the respondent; that D2 was personally liable for any negligent act or omission committed by her or her agents in the conduct of her professional practice at the hospital; that the respondent would not be responsible for any tortious act of D2; and that D2 undertook to indemnify the respondent fully against any claim or action brought against it arising from D2’s negligent acts. The fact that the operation was part of D2’s independent business is further shown by D2 charging her patients consultancy and operation fees, while the respondent did not pay D2 a salary. Therefore, D2 should be fully responsible. To ignore the contractual reality would be to ignore the business reality of the healthcare sector.

Moreover, the respondent’s website did not lure the patient. Since it was an emergency, the patient did not choose the hospital on the strength of its brand or promises, but because of its proximity. On the issue of holding out, the website merely set out the facilities the respondent had to offer to patients admitted to it. This is not determinative of whether the respondent owes a non-delegable duty of care to the patient, and in any event it was not this holding out that attracted or lured the appellant to the respondent.

Finally, Zabariah Yusof FCJ cautioned that expanding the area of liability of non-tortfeasors, which she described as expanding areas of vicarious liability, is a matter of public policy that belongs to Parliament, since it is unfamiliar territory for the courts. If such a duty ought to be imposed on private hospitals or medical institutions like the respondent, it would be better provided for by legislation, because it affects both medical institutions and the medical profession, including practitioners who are independent contractors. Judicial legislation is always based on the facts of a particular case, which blurs the line between vicarious liability and non-delegable duty of care and adds to the unpredictability of imposing a non-delegable duty. In short, expanding liability through the courts would constitute judicial legislation and impose an unreasonable financial burden on medical institutions such as the respondent.

Mary Lim FCJ (Majority)

The majority held that the hospital was liable and responsible for the harm caused by the negligence of D2, an independent contractor. The majority comprised Mohamad Zabidin Mohd Diah CJ (Malaya), Abdul Rahman Sebli CJ (Sabah and Sarawak), Hasnah Mohammed Hashim FCJ and Mary Lim FCJ, and the majority judgment was delivered by Mary Lim FCJ.

The Private Healthcare Facilities and Services Act 1998 (Act 586) and the Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 play a vital role in this case in determining whether a non-delegable duty of care exists.⁶ The court interpreted Act 586 and the Regulations, in particular the following provisions:

• Section 2: the Act applies to all healthcare facilities and services not provided by the government through public hospitals or institutions, namely private healthcare facilities and services.
• Section 31: the responsibilities of the licensee or holder of a certificate of registration of a private hospital, including ensuring that persons employed or engaged are registered.
• Section 35: the availability of a policy statement on the obligations of private hospitals to patients using their facilities or services.
• Section 38: special requirements for emergency care services. Every private hospital must at all times be capable of instituting and making available essential life-saving measures and implementing emergency procedures for any person requiring such treatment or services.

In this case, the respondent was a private healthcare facility and service. It had to ensure that the medical practitioners it employed or engaged were registered under the law, regardless of whether they were employees or independent contractors. It also had obligations to the appellant as a person using its facilities and services, especially its emergency care services. Since Act 586 requires private hospitals to provide emergency services, a hospital cannot avoid these duties through private agreements. Based on these provisions, the majority held that the respondent is, and remains, responsible not just for the adequacy of its premises and facilities but also for the treatment and care of patients. Act 586 and the Regulations incorporate the elements of fairness, justice and reasonableness, which need not be reconsidered as an entirely separate exercise. Therefore, persons who approach, use and rely on the treatment and healthcare rendered in these facilities and services should never have to concern themselves with the issue of responsibility and separate accountability for negligence by independent contractors.⁷

In Woodland, Lord Sumption remarked, as a proviso, that a non-delegable duty of care should be imposed only where it would be fair, just and reasonable to do so.⁸ The Woodland test requires the fulfilment of five features:

1. The claimant is especially vulnerable or dependent on the defendant’s protection against the risk of injury. Such claimants include, but are not limited to, patients and children.
2. There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, from which it is possible to impute to the defendant an assumption of responsibility to protect the claimant from harm. The relationship places the claimant in the defendant’s actual custody, charge or care.
3. The claimant has no control over how the defendant chooses to perform the duty assumed, whether personally or through employees or third parties.
4. The defendant has delegated to a third party a function which is an integral part of its positive duty towards the claimant, and the third party is exercising, for that purpose, the defendant’s custody or care of the claimant and the element of control that goes with it.
5. The third party was negligent, not in some collateral respect, but in the performance of the very function assumed by the defendant and delegated to him.

The majority found all five features met. The respondent had a personal duty to ensure that the patient received competent care, even though the treatment was carried out by an independent contractor. By operating an emergency department, the hospital assumed responsibility for any patient who knocked on its door, creating an immediate antecedent relationship between the appellant and the respondent. This was reinforced by the statutory framework and by the fact that the appellant was first attended to by the respondent’s own medical officer in the emergency department before being referred to D1 and D2.

Moreover, social expectation is also part of the determination of a non-delegable duty of care in this case. This is supported by Gold v Essex County Council: a patient expects treatment from the hospital and does not know, and should not need to know, whether the doctor is an employee or an independent contractor of the private hospital.⁹ Lord Greene MR, in a minority judgment, stated that once the extent of the obligation assumed by a hospital is ascertained, the hospital cannot escape liability by employing an employee or independent contractor to discharge it on its behalf, and that the hospital’s duty is not confined to administrative matters such as providing proper facilities and selecting competent staff.

Critical Analysis and Conclusion

This case highlights a significant change in how private hospitals may defend negligence claims in Malaysia. Dr Kok Choong Seng & Anor v Soo Cheng Lin had earlier introduced the Woodland framework to Malaysia, but the Federal Court did not apply it strictly against the hospital because of the specific factual nuances of that case.¹⁰ This case takes that legal evolution a decisive step further by demonstrating precisely how the five-feature Woodland test applies to emergency admissions and private hospital structures. Where a non-delegable duty is established, private hospitals can no longer rely on the independent contractor defence. The label may still defeat a claim in vicarious liability, as the abandoned vicarious liability claim in this case illustrates, but it does not answer a non-delegable duty. The hospital cannot escape liability by saying that the negligent person was not its employee, because it has a personal duty to ensure that the patient receives competent care even if the treatment is carried out by an independent contractor.

Moreover, this case also protects patient rights under the statutory framework of the Private Healthcare Facilities and Services Act 1998 and the Private Healthcare Facilities and Services Regulations 2006. Where the Woodland features are met, as they were here, patients can now sue the hospital directly if something goes wrong, without being forced to prove whether the doctor was an employee or not. Act 586 was enacted by Parliament to protect patients. Therefore, the statutory duties placed on private hospitals should extend to civil liability in tort in order to ensure patient safety.

The decision represents a paradigm shift in Malaysian medical law from Kee Boon Suan & Ors v Penang Adventist Hospital & Ors, by prioritising patient rights, protection and social justice over traditional contract principles.¹¹ The Federal Court has effectively closed the legal loophole that previously allowed private hospitals to evade responsibility for the negligence of medical practitioners occurring on their premises.

Footnote(S):

1. Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66 (FC).
2. Woodland v Essex County Council [2013] UKSC 66; [2014] 1 All ER 482.
3. Siow Ching Yee (n 1).
4. Cassidy v Ministry of Health [1951] 2 KB 343 (CA).
5. Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] 1 All ER 1.
6. Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 (P.U.(A) 138/2006).
7. Private Healthcare Facilities and Services Act 1998 (Act 586).
8. Woodland (n 2).
9. Gold v Essex County Council [1942] 2 KB 293 (CA).
10. Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 (FC).
11. Kee Boon Suan & Ors v Penang Adventist Hospital & Ors [2018] 5 MLJ 321.

Reference(S):

Malaysian Cases

• Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 (FC).
• Kee Boon Suan & Ors v Penang Adventist Hospital & Ors [2018] 5 MLJ 321.
• Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66 (FC).

United Kingdom Cases

• Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] 1 All ER 1.
• Cassidy v Ministry of Health [1951] 2 KB 343 (CA).
• Gold v Essex County Council [1942] 2 KB 293 (CA).
• Woodland v Essex County Council [2013] UKSC 66; [2014] 1 All ER 482.

Legislation and Regulatory Framework

• Private Healthcare Facilities and Services Act 1998 (Act 586).
• Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 (P.U.(A) 138/2006).

Secondary Sources

• Giliker, P. (2010). Vicarious Liability in Tort: A Comparative Perspective. Cambridge University Press.
• Skrine & Co. (2024, April). Revisiting the Doctrine of Non-Delegable Duty of Care in Malaysian Medical Negligence Cases. Skrine Legal Insights.