Gulf View Medical Centre Ltd v Tesheira (The Executrix of the Estate of Russell Tesheira) (Trinidad and Tobago)

A non-delegable duty of care may be admitted by the way pleadings are framed. An admitted duty to ensure that bleeding, transfusions and fluid overload are carefully monitored and managed may extend to functions performed by hospital staff, clinicians and other persons, not merely to the defendant’s own acts. The duty is not absolute: breach still requires proof of fault. Specific and non-delegable duties may coexist. The Board will ordinarily not disturb concurrent factual findings absent exceptional circumstances. Medical experts need not be legal experts; criticisms of their preparation and methodology generally concern weight. Unchallenged expert evidence applying the Bolam test supported findings of breach and causation. Both appeals were dismissed.

The deceased died after undergoing a trans-urethral resection of the prostate at a private hospital in Trinidad and Tobago. His executrix brought medical negligence proceedings against the hospital, the surgeon and the anaesthetist. The claim against the surgeon was settled without admission of liability.

Kokaram J found the hospital and anaesthetist negligent and awarded substantial damages. The Court of Appeal reversed some findings but dismissed their appeals. The hospital and anaesthetist appealed to the Board, challenging the alleged non-delegable duty admitted in the pleadings, an issue-estoppel argument, the expert evidence, breach of duty, the scope of the anaesthetist’s duty and causation.

Appeals dismissed. Lord Stephens and Lord Pentland delivered the judgment of the Board, with Lord Reed, Lord Sales and Lord Hamblen agreeing.

1. Non-delegable duty. The hospital and anaesthetist had admitted paragraph 23 of the amended statement of claim without qualification. Construed in context, its use of ensure alleged a non-delegable duty of care. The duty covered the period during and after the procedure and matters including bleeding, blood transfusions and fluid overload. It was not confined to hospital employees, nursing care or the anaesthetist’s administration of anaesthetic. Specific personal duties and a non-delegable duty could coexist. The duty remained fault-based and was not absolute. The common-law question therefore did not arise.
2. Issue estoppel. The argument had not been raised in the Court of Appeal and was unsuitable for consideration by the Board. In any event, the first appellant identified no evidence that it would have called, or any detriment suffered, because of the earlier interlocutory ruling.
3. Expert evidence and breach. Medical experts give evidence about appropriate medical practice and need not be legal experts. Criticisms concerning the preparation of their reports and witness statements were matters of weight for the trial judge. The trial judge had assessed those matters and was entitled to accept the experts’ evidence. The Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 test had been correctly applied. The unchallenged evidence provided sufficient support for findings including the transfusion of incompatible O-positive blood and inadequate monitoring during transfusions.
4. Concurrent findings and causation. Save in exceptional circumstances, the Board does not go behind concurrent findings of fact by two lower courts. The evidence established that fluid overload caused the death and that it resulted from negligent management of excessive bleeding and its treatment. No exceptional basis for disturbing the findings was shown. The appeal concerning the anaesthetist’s duty did not arise in light of the pleading conclusion.

1. Privy Council. Both appeals dismissed: [2022] UKPC 38.
2. Court of Appeal of the Republic of Trinidad and Tobago. In November 2017, the court reversed some factual and negligence findings but dismissed both appeals.
3. High Court of Trinidad and Tobago. Kokaram J found the hospital and anaesthetist negligent after trial and awarded damages, payable after deduction of the surgeon’s ex gratia payment.