Farraj & Anor v King's Healthcare NHS Trust (KCH) & Ors

A person who entrusts work to an apparently competent independent contractor ordinarily discharges the duty to take reasonable care and is not liable for the contractor’s negligence. A non-delegable duty is a more stringent duty to ensure that care is taken. Its recognition requires sufficient policy justification.

A hospital may owe such a duty for treatment provided to patients placed under its care, supervision and control. That reasoning does not extend merely because diagnostic laboratory services are supplied by a hospital to someone who is neither admitted nor treated there.

Where separate specialist laboratories have a clear working arrangement requiring the subcontractor to report doubts about a sample, the referring laboratory may ordinarily rely on that arrangement without making a duplicative positive enquiry.

The claimants sought damages following the birth of a child with beta thalassaemia major. A chorionic villus sample had been sent from Jordan to King’s Healthcare NHS Trust (KCH) for genetic testing. KCH subcontracted its cleaning, sorting and culturing to Cytogenetic DNA Services Ltd (CSL). CSL negligently failed to disclose doubts about whether the cultured material was foetal rather than maternal.

Burnett J held both laboratories liable, apportioned two-thirds of the damages to CSL and one-third to KCH, and divided the claimants’ costs equally. KCH appealed against liability, apportionment and costs. The claimants cross-appealed, contending that KCH owed a non-delegable duty and was therefore liable for CSL’s negligence even if it had committed no personal breach.

The central issues were whether KCH had negligently failed to enquire about the sample, whether any such failure caused the misdiagnosis, and whether its duty could lawfully be delegated to CSL.

1. Appeal allowed and cross-appeal dismissed. Lady Justice Smith held that KCH had not breached its own duty of care. Lord Justice Dyson held that KCH was not liable for CSL’s negligence under a non-delegable duty. Lord Justice Sedley agreed with both conclusions. CSL alone was liable for the damages and the claimants’ costs.

2. KCH owed a tortious duty to take reasonable care in all the circumstances to provide reliable information about the foetus’s beta thalassaemia status. It was reasonable to subcontract the cytogenetic work to CSL, which was competent and reputable. The evidence established a clear working arrangement under which CSL would report any doubt about whether suitable foetal tissue had been identified or cultured. KCH was entitled to rely on that arrangement and was not required to make a duplicative positive enquiry.

3. The trial judge had overstated the cytogenetic experts’ evidence. Their evidence placed responsibility for joined-up working on the referring laboratory only in the absence of a protocol or clearly understood arrangement. All the experts agreed that a cytogenetics laboratory should report doubts about a sample. The only conclusion open on the evidence was therefore that KCH had acted reasonably.

4. The finding against KCH was also defective on causation. The trial judge had not made a reasoned finding that an enquiry by KCH would have caused CSL to reveal the technician’s doubts. The evidence did not establish who would have answered an enquiry, what internal investigation would have occurred, or what response would have been given.

5. Lord Justice Dyson applied the general rule that a person who entrusts a task to an apparently competent independent contractor is not ordinarily liable for that contractor’s negligence. A non-delegable duty substitutes a duty to ensure that reasonable care is taken and therefore requires policy justification.

6. Assuming, without deciding, that a hospital generally owes patients a non-delegable duty in respect of treatment, that duty did not arise here. The claimants had not been admitted to or treated by KCH. KCH provided analytical and diagnostic laboratory services of a kind that could equally have been supplied by an independent testing house. It had not undertaken the care, supervision or control that creates the special responsibility found in the hospital-patient relationship. Subjective expectations and the gravity of possible harm did not justify extending the duty.

1. Court of Appeal (Civil Division): By [2009] EWCA Civ 1203, unanimously allowed KCH’s appeal, dismissed the claimants’ cross-appeal and held CSL solely liable for the damages and the claimants’ costs.

2. High Court, Queen’s Bench Division: Burnett J held KCH and CSL liable, apportioned responsibility one-third to KCH and two-thirds to CSL, and ordered each defendant to pay half of the claimants’ costs. No citation is stated in the judgment.