A (A Child), Re

A person who arranges for an independent contractor to provide medical treatment does not ordinarily guarantee that the contractor will exercise reasonable skill and care. The scope of the arranger’s duty depends on the responsibility it has undertaken in all the circumstances.

An authority which provides access to an appropriate system of hospital care must exercise reasonable care when selecting and putting providers in place. It does not thereby assume a non-delegable duty for treatment delivered in a hospital which it neither operates nor controls.

A child suffered severe brain damage through the negligence of an obstetrician at a German hospital. His father was serving in the British Army in Germany. The Ministry of Defence had arranged access to German secondary healthcare through Guy’s and St Thomas’s Hospital NHS Trust after closing its military hospitals.

Bell J determined an issue of law under Part 8 of the Civil Procedure Rules and held that the Ministry owed no non-delegable duty to ensure that treatment was delivered with reasonable skill and care. The child appealed with the judge’s permission. The central issue was whether the Ministry’s arrangements, the family’s reasonable perception, or its former operation of military hospitals imposed such a duty.

1. Appeal dismissed. The Ministry of Defence did not owe a non-delegable duty to ensure that reasonable skill and care were exercised in secondary treatment delivered by the German hospital. Lord Phillips MR gave the judgment of the court. Tuckey and Wall LJJ agreed.

2. The general rule is that a defendant is liable for a servant’s negligence in the course of employment, but not for the negligence of an independent contractor. A personal, non-delegable duty may nevertheless arise from contract or by operation of law. Its existence and scope depend on the obligation undertaken in all the circumstances.

3. After 1996 the Ministry no longer operated hospitals or accepted service personnel and their dependants as its own hospital patients in Germany. It arranged and funded access to secondary healthcare through Guy’s and St Thomas’s Hospital NHS Trust and designated German providers. Its duty was therefore to exercise reasonable care in selecting and putting into operation an appropriate system of secondary healthcare. That duty had been discharged.

4. The proposed duty would extend English negligence law beyond the English and Australian authorities. Existing hospital cases concerned an institution which had accepted a patient for treatment and exercised control over the treatment environment. Policy did not justify making the Ministry liable for an isolated negligent act in an independently operated foreign hospital when the Ministry was without fault and the duty would not affect the care exercised there.

5. The family’s perception did not enlarge the duty. The unchallenged findings showed no sound basis for believing that the Ministry itself provided the hospital treatment, and the Ministry had sought to explain the post-1996 arrangements.

6. A hospital which itself offers treatment may have strong policy-based responsibility for the care with which treatment is administered, regardless of the status of the treating person. Assuming the Ministry had such a duty while operating military hospitals, it persisted only while the Ministry continued undertaking hospital care. It did not survive the transfer of treatment to independent German providers.

7. The appeal was dismissed. A public funding order was made for the appellant’s costs, and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The appeal in [2004] EWCA Civ 641 was dismissed. The court affirmed Bell J’s determination that the Ministry of Defence owed no non-delegable duty for treatment administered by the German hospital.
2. High Court, Queen’s Bench Division: Bell J determined issues of law under Part 8 of the Civil Procedure Rules. He held that the Ministry’s duty was to exercise reasonable care in providing access to an appropriate system of secondary healthcare and that this duty had been discharged. No citation is stated.