Farraj & Anor v King's Healthcare NHS Trust (KCH) & Ors [2009] EWCA Civ 1203

[2009] EWCA Civ 1203

Case No B3/2008/2903

Case No B3/2008/0001

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

MR JUSTICE BURNETT

HQ00X04275

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13/11/2009

Before

LORD JUSTICE SEDLEY

LORD JUSTICE DYSON

LADY JUSTICE SMITH

Between

Mrs Hanan Basem Farraj and Mr Basem FarrajClaimants/First Respondents

King’s Healthcare NHS Trust (KCH)First Defendant/Part 20 Claimant/Appellant

Cytogenetic DNA Services Limited (CSL)Second Defendant/Part 20 Defendant/Second Respondent

(Transcript of the Handed Down Judgment of

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Mr Harry Trusted (instructed by Bolt Burdon Kemp) for Claimant

Mr Martin Spencer QC and Ms Jane Mishcon (instructed by Hempsons) for First Defendant

Mr Andrew Prynne QC (instructed by CMS Cameron McKenna LLP) for Second Defendant

Hearing Hearing dates: 26/27 October 2009

Judgment

[1]This is an appeal from part of the order of Burnett J made on 17 October 2008 following the trial of an action for damages for negligence leading to ‘wrongful birth’.

[2]The claimants, Mr and Mrs Farraj, are Jordanian. Both are carriers of a gene which can cause beta thalassaemia major (BTM), an inherited blood disorder which is disabling and gives rise to reduced life expectancy. Because both parents are carriers, there is a real risk that any child of theirs will suffer from the condition. Their second child has it. In 1995, Mrs Farraj was pregnant with her third child and the couple were advised by Dr Osama Batayneh, a consultant obstetrician at the King Hussein Medical Centre in Amman, to undergo DNA testing which would detect whether the child would suffer from BTM. If the test result were positive, the couple intended that the pregnancy should be terminated.

[3]In May 1995, when she was about 11 weeks pregnant, a chorionic villus sample (CVS) was taken from Mrs Farraj. The intention was to provide a sample of tissue which would be genetically that of the foetus and not of the mother. The sample was sent to King’s Healthcare NHS Trust (KCH) in London. Dr Mark Layton was the Senior Lecturer in Haematology and Honorary Consultant in the Department of Haematological Medicine. He was in charge of the laboratory in which the DNA test would be conducted.

[4]The sample was very small and bloodstained. On examining it, personnel at KCH concluded that, as it was, it was not suitable for DNA testing. It would have to be cleaned and foetal tissue identified; then the foetal cells would have to be cultured to increase the quantity available. That work had to be done by a cytogenetics laboratory, a facility which was not available ‘in-house’ at KCH. It was Dr Layton’s practice to send such samples to Cytogenetic DNA Services Ltd (CSL) an independent laboratory run by Mr Rodney Meredith. CSL is a highly reputable organisation with which KCH had a longstanding and satisfactory professional relationship.

[5]The sample was sent to CSL on 11 May 1995. A cultured sample was returned to KCH on 12 June. That cultured sample was tested at KCH and it was found that the foetus did not have BTM. That result was conveyed to Dr Batayneh. Mrs Farraj’s pregnancy continued normally and the baby, Abdullah, was born in December 1995. It was soon found that he was indeed suffering from BTM. The test result had been wrong. In due course, Mr and Mrs Farraj commenced an action against KCH. In its defence, KCH blamed CSL and, in due course, CSL was joined as second defendant in the action.

[6]At the trial, Burnett J held both defendants liable. CSL was liable because, when the sample had been cleaned and sorted, Mrs Emma Wilcock, the CSL technician, had been doubtful as to whether it comprised or included any foetal tissue or villus. That doubt had not been conveyed to KCH. Notwithstanding her doubts, Mrs Wilcock cultured tissue from the sample. The cells grew and she returned the product to KCH without any indication of the doubts she had entertained as to their nature. The failure of CSL to communicate Mrs Wilcock’s doubts was negligent. In the event, the cells were probably maternal cells; that would explain why the genetic testing did not reveal BTM. The judge held that, if Mrs Wilcock’s doubts had been conveyed to KCH when they should have been, before the culturing process was begun, Dr Bataynehwould have provided another sample. The misdiagnosis would have been avoided. The pregnancy would have been terminated. Those findings are not challenged on appeal.

[7]The judge also held that KCH was liable in that Dr Layton ought to have enquired of CSL whether the sample would provide or had provided a reliable source of material for genetic testing. If he had so enquired, he would have learned of Mrs Wilcock’s doubts and a further sample would have been called for and provided. The misdiagnosis would have been avoided.

[8]That finding of liability is challenged on this appeal. It is submitted that the judge was wrong to hold KCH liable. Dr Layton and his staff had not been negligent in failing to make a positive enquiry of CSL. It was entirely reasonable for him to assume that the sample had provided foetal cells for culture unless told to the contrary. Moreover, as to causation, the judge’s findings were not justified on the evidence. The evidence suggested that, if Dr Layton had made a positive enquiry of CSL, Mr Meredith would have reassured him that all was well. The doubts would not have been discovered and the misdiagnosis would not have been avoided.

[9]The judge apportioned responsibility between the two defendants holding CSL to be liable as to two-thirds of the damages and KCH as to one third. KCH challenges that apportionment, contending that even if, contrary to its primary submission, KCH was properly held liable, the apportionment of one third was too much.

[10]Finally, the judge ordered KCH and CSL each to pay 50% of the claimants’ costs of the action. KCH appeals that order, contending that there was no justification for apportioning the costs differently from the apportionment of damages.

[11]I refused permission after consideration of the papers but it was granted by the full court. The claimants then obtained permission from Moses LJ to cross-appeal on an issue on which the judge had found against them. The claimants had contended that, even if KCH was not personally negligent, it was nonetheless liable to the claimants for the negligence of CSL (an independent sub-contractor) because KCH’s duty was non-delegable. The judge rejected that argument but it is revived on the cross-appeal, notwithstanding that the claimants are bound to recover the whole of their damages whatever the outcome of the appeal. The claimants contend that, if the appeal succeeds, they will or may be disadvantaged on costs unless they can keep KCH in the frame through the cross-appeal.

[12]To avoid confusion, I shall refer to the parties as the claimants, KCH and CSL.

The appeal – the relevant facts in greater detail

[13]The original sample arrived at KCH on 10 May 1995 and was received by Ms Lisa Thompson, Chief Biomedical Scientist on Dr Layton’s team. The sample was in an unlabelled tube. It appears that samples from two different families were sent to KCH from Jordan at about the same time. There was a covering letter from Dr Batayneh to Dr Layton, in which, after explaining that the patient, Hanam Basam (the name by which Mrs Farraj was known at the hospital in Jordan) was pregnant, that her first child was normal, her second child (Rawan) had BTM and that both parents were carriers of the gene, he said he wanted to assess the BTM status of the pregnancy. He referred to the enclosed samples: these were the CVS sample and blood samples from both parents and Rawan. The blood samples were necessary so that KCH could identify the mutation of BTM which might be expected in the foetus. This identification was a necessary stage of the process of testing. The fee for carrying out the tests was to be £580.

[14]Lisa Thompson examined the sample which was eventually to be identified as that belonging to Mrs Farraj using the naked eye. She saw and noted that it was very small, bloodstained and unlabelled. She was of the view that it was not of sufficient size and quality to be DNA tested without culturing. She sent it to CSL for culture the following day, 11 May. The fee for culturing was to be £80.

[15]Shortly before sending the sample to CSL, Lisa Thompson spoke to Mr Meredith on the telephone and they discussed the fact that the sample was small and bloodstained.

[16]Lisa Thompson’s covering letter to CSL advised Mr Meredith that the enclosed sample of CVS from Hanam Basem was unlabelled. Confirmation of its identity would be forwarded shortly. She instructed him to carry out ‘CULTURE ONLY’ and to return the cultured cells to KCH for analysis for BTM. The request for ‘culture only’ was unusual and was in contradistinction to the more usual instructions from KCH to CSL which were for culture and karyotyping. The latter is a procedure by which the chromosomes in the sample are identified.

[17]The objective of sending a sample for culture is to ensure that enough foetal cells are eventually available for DNA testing. There is a real possibility that the original sample will comprise a mixture of foetal and maternal tissue or even maternal tissue alone. If all the maternal tissue is not discarded before culturing takes place, the cultured product will comprise an unknown proportion of maternal cells. If the cells eventually tested are maternal cells rather than foetal cells the result will obviously be useless. If the cells eventually tested comprise a mixture of foetal and maternal cells, the result will be unreliable and the risk of the result being wrong could be anything up to 100%. So, the task of the cytogenetic technician is to clean and sort the sample so as to exclude blood and all maternal tissue and to culture only foetal tissue. If only foetal tissue is cultured, the result of the DNA analysis will be reliable, subject only to a background risk assessed by the experts at less than 0.5%.

[18]Foetal tissue has a different structure from maternal tissue and its appearance under the microscope is different; apparently it looks rather like seaweed. However, sometimes, it is not easy to distinguish between maternal and foetal tissue, particularly if the sample is small and/or in poor condition. For that reason and because of the risk of an unreliable result if the cultured sample contains maternal cells, it is important that the analytical laboratory should be aware of any doubts as to the nature of the sample entertained by the cytogenetics laboratory.

[19]Karyotyping (which identifies chromosomes) can be used to ascertain the gender of the source of tissue. If karyotyping shows that the cells come from a male, they must be foetal and the sample can be cultured with confidence. If the cells are from a female, that test is unhelpful; they might be maternal or foetal. So, karyotyping can be useful for excluding maternal contamination in some cases. However, there is no suggestion in the present case that KCH had been negligent not to instruct CSL to perform it.

[20]On 18 May, Dr Layton wrote to Dr Batayneh asking for confirmation of the identity of the samples received and also warning that the sample might not be adequate. He said:

“Unfortunately, the chorion villus samples from both these families reached us unnamed. There is, from our point of view, no way of ensuring the correct identity of the samples. The CVS were too small to attempt direct DNA analysis and blood stained, which raises concerns about the potential for diagnostic error due to maternal contamination. As an interim measure we are attempting to culture both CVS but I am not optimistic about the chance of success. Providing you can verify the identity of the samples we would be prepared to proceed with genetic testing once the parental B-thalassaemia mutations have been identified, if sufficient cells grow. ….. I shall contact you as soon as the position is clear.”

[21]Dr Batayneh confirmed the identity of the samples in a fax dated 29 May. In response to that information, KCH examined the blood samples of Mr and Mrs Farraj and Rawan and ascertained what strain or mutation of BTM they were looking for.

[22]Dr Bataynehalso wrote to Dr Layton by a fax dated 6 June but not sent until 11 June. In that second fax, he offered a second sample if the first sample proved ‘not informative due to maternal contamination’ and asked whether Dr Layton would prefer a second CVS sample or one of amniotic fluid. A sample of amniotic fluid could be used for DNA analysis, is easier to take and is less prone to maternal contamination. However, it cannot be taken until the pregnancy has reached at least 16 weeks; some doctors say 17 weeks.

[23]Dr Layton did not respond to the fax of 11 June because, on 12 June, the cultured sample was received back from CSL. There was no covering note or report. The evidence of Dr Layton was that, where the instructions had been for culture only, no report would be sent. Of course, if karyotyping had been asked for, CSL would provide a written report of those results.

[24]The cultured sample was sent for DNA analysis. The cells analysed carried the beta-thalassaemia gene (as expected) but showed no evidence of BTM. On 16 June, the cells were subjected to an additional test which was designed to exclude maternal contamination. The test is sometimes known as VNTR testing and sometimes as testing for von Willebrand’s factor. There is no need to burden this judgment with an explanation of this test. The test was unhelpful in that it did not exclude maternal contamination but Dr Layton did not consider that this undermined the reliability of the DNA analysis and he wrote to Dr Batayneh as follows:

“It is a pleasure to report that analysis of cultured trophoblast cells shows this pregnancy is not affected by B-thalassaemia major. Studies with a highly polymorphic tandem repeat marker within the von Willebrand’s factor gene are consistent with (though do not prove) the correct identity of the CVS sample which you remember caused us some concern as it arrived unlabelled. Our anxieties about the possibility of maternal contamination leading to an error in fetal diagnosis are less likely to apply where cultured trophoblast cells are used for DNA analysis. I enclose the details of the molecular genetics studies on this family.”

[25]The reference to trophoblast cells is simply a reference to cultured cells. Dr Layton was saying that using cultured cells gave a more reliable result because of the reduced possibility of maternal contamination. Although it was alleged that Dr Layton had been negligent to write that ‘all-clear’ report in the light of the information available to him, including the unhelpful results of the von Willebrand test, the judge rejected that allegation and I need say no more about it.

[26]As I have already said, the DNA testing resulted in misdiagnosis. What must have happened was that the cells tested were maternal rather than foetal cells. So the result, that the gene was present but not the disease, was that which applied to the mother and not necessarily to the foetus. In the event, the foetus had both the gene and the disease.

The case against CSL

[27]Before considering the negligence of KCH which is in issue in this appeal, it is necessary to understand the judge’s findings in relation to CSL. When Mrs Wilcock cleaned, sorted and examined the sample received from KCH, she made some notes on Lisa Thompson’s letter of instruction. The meaning of these notes was not clear and was disputed. The note strongly suggested that Mrs Wilcock had been in doubt as to whether the sample contained any foetal tissue. Mrs Wilcock did not accept that she had been in any doubt by the time she had finished the cleaning and sorting; she was satisfied that she had identified some foetal tissue and that was what she cultured. There was no need for her to tell anyone of any concerns. The judge held that the notes indicated that Mrs Wilcock was at all times doubtful whether there was any foetal tissue there and remained in doubt when she commenced the culturing process. It was not disputed that, if Mrs Wilcock had those doubts, they should have been conveyed to KCH. Proper practice for a cytogenetics laboratory (as set out in an authoritative textbook by D.E. Rooney and B.H Czepulkowski) suggested that, if there was any doubt about the identity of a piece of tissue, it should not be used for culture. However, if the sample was a ‘precious one’ which it was not desirable to discard (because of the difficulty or impossibility of obtaining another) it would be acceptable for a sample of doubtful nature to be cultured, so long as everyone involved was aware of the doubts and of the consequent risk of error.

[28]CSL accepted that it had not communicated any doubts to KCH at the time the culture was started. However, its alternative defence was that, when returning the cultured sample, it had conveyed its concerns by sending to KCH a copy of Lisa Thompson’s original letter of instruction on which Mrs Wilcock’s notes were to be seen. CSL accepted that this was not an ideal way of conveying its concerns but contended that the message was clear enough to put KCH on notice. The judge found that Mrs Wilcock’s notes had not been sent. The sample had been returned without any covering report.

[29]Having made those two findings of fact, the judge did not find it necessary to go into any further detail as to what had gone wrong within CSL. He made no findings as to whether Mrs Wilcock had been inadequately supervised; nor did he investigate the methods of communication within CSL. For his finding of liability against CSL, there was no need to. On the facts, CSL had failed, before culturing, to comply with its acknowledged duty to draw to KCH’s attention its doubts about whether the tissue cultured was foetal tissue. It had also failed to warn KCH of its doubts when returning the cultured sample.

[30]It is important in the context of this appeal to note that Mr Meredith always accepted that CSL was under those duties of communication. At all times, he acknowledged that, from its naked eye examination, KCH could not be expected to know whether or not the sample contained some foetal tissue which would be suitable for culturing. That was a matter wholly within the expertise of CSL and it was for CSL to tell KCH if it had any doubts as to its ability to isolate foetal tissue suitable for culturing.

The case against KCH

[31]The only allegation against KCH which the judge found proved was that it had been responsible for a failure of communication between itself and CSL. Dr Layton had relied on CSL to inform him if there was any problem about the sample or culturing. It was said against KCH that Dr Layton should have been proactive and should have positively asked CSL to say whether the sample was going to be fit for the purpose of providing cultured foetal cells for DNA analysis. Also, it was said that, before Dr Layton could have properly written his ‘all clear’ report, he should have expressly satisfied himself that CSL had indeed separated out foetal tissue and had cultured that and that alone.

[32]KCH’s defence to these allegations was that Dr Layton had a longstanding arrangement with CSL. There was no formal protocol covering their dealings with each other but there was a well-established practice understood by both sides. The practice followed on this occasion was the normal practice. KCH had sent a letter of instruction to CSL which told Mr Meredith everything he needed to know in order for CSL to carry out its functions. It was not disputed that CSL knew of the importance of excluding maternal tissue and culturing only foetal tissue. There was no need for KCH to tell CSL that, or to ask for a report on the condition of the sample. It was clearly understood between the two laboratories that, if there were doubts about whether foetal tissue could be identified or whether foetal cells could be cultured, CSL would inform KCH. If CSL did not get in touch, KCH could properly assume that suitable foetal tissue had been identified and that culture was being attempted. If culture did not proceed satisfactorily, CSL would tell KCH. If KCH heard nothing, it could assume all was going well. The usual practice was for the cultured cells to be returned without a report, unless some further tests such as karyotyping had been requested, in which case a report would be enclosed. But for culture alone, it was usual for there to be no report. In the absence of any communication of concern about the returned sample, KCH was entitled to assume that the cultured cells were foetal cells suitable for DNA analysis.

[33]Notwithstanding that, as I shall demonstrate, the judge expressly accepted much of KCH’s evidential case and did not expressly reject any of it, he held that there was a positive duty on KCH to seek information from CSL about the quality of the sample. In so doing he relied heavily on the evidence given by the three cytogenetics expert witnesses, who he said, were of the view that responsibility for communication lay with the referring laboratory (KCH). He also held, by implication, that, had KCH positively sought information, it would have discovered that Mrs Wilcock had doubts about whether the sample contained any foetal tissue. A second sample would have been called for.

[34]In the appeal, Mr Martin Spencer QC for KCH submitted that the judge’s conclusion was wrong. That was so partly because he had preferred the expert evidence of the cytogeneticists to that of the molecular geneticists. They had not been critical of KCH’s reliance on CSL’s duty to communicate any doubts about the sample. Mr Spencer submitted that the judge should have relied on their evidence because they were the experts best qualified to pass judgment on the conduct of a molecular genetics laboratory such as KCH. He also submitted that the judge’s holding in relation to KCH was a counsel of perfection made in the light of the hindsight knowledge that the DNA test result had been wrong. He contended that the judge had failed to consider when the duty to ask for information had arisen and that this failure had contributed to his failure adequately to deal with the issue of causation. In particular, the judge had failed to consider what KCH would have been told if, at any stage, it had asked for information about the sample.

[35]It seems to me that, although several separate grounds of appeal were identified in the written submissions, during the hearing Mr Spencer’s submissions on duty and breach amounted to the single argument that the judge’s conclusions were logically flawed.

[36]Mr Andrew Prynne QC for CSL submitted that the judge’s conclusion was correct in all respects. Mr Harry Trusted for the claimants agreed with Mr Prynne that, in respect of the holding that KCH was in breach of its own duty to the claimants, the judge’s findings should be upheld. He challenged only the judge’s holding that KCH’s duty to the claimants was delegable. Mr Prynne has not sought, in reliance on the judge’s decision and in alliance with Mr Trusted’s attack on it, to increase KCH’s share of the blame. The issue of whether KCH had a non-delegable duty is the subject of the cross appeal. Discussion

[37]In order to consider the validity of the judge’s conclusions in respect of KCH’s liability, I must examine his reasoning in some detail.

[38]Although the judge did not expressly set out the nature of KCH’s duty towards the claimants, there is no dispute as to what that legal duty was. It was a duty in tort, there being no contractual relationship between the claimants and KCH. The duty on KCH was to take reasonable care in all the circumstances to provide the claimants with reliable information as to the BTM status of the child Mrs Farraj was carrying. That would include the duty to advise the claimants whether it was going to be possible to provide reliable information about the child’s BTM status from the sample which had been submitted. It was not argued, at least by the end of the hearing, that KCH’s decision to sub-contract the cleaning, sorting and culturing of the sample to CSL was unreasonable or amounted to a breach of duty, given that it had no in-house cytogenetics facility. It was accepted that CSL was a suitable laboratory to carry out those aspects of the work. The holding we are concerned with in this appeal is that KCH was negligent in failing to find out from CSL that there were real doubts as to whether the sample contained foetal tissue suitable for culturing. It was said that, to fulfil its duty to the claimants, KCH had to make a positive enquiry of CSL. It was not sufficient for KCH to rely on CSL’s admitted duty to inform KCH if it entertained any such doubts.

[39]In paragraph 32 above, I have set out KCH’s defence to the allegation that its duty towards the claimants entailed a positive duty to make enquiry of CSL. In the course of oral evidence, in particular cross-examination by Mr Prynne for CSL and Mr Gerard McDermott QC for the claimants, Dr Layton gave evidence covering each aspect of that defence. He explained why, given the differing expertise of the two laboratories, the nature of the relationship between them and the practice they normally followed, he considered it was reasonable for him to rely on CSL to tell him if there were any concerns about the sample. The cross-examination from Mr Prynne on these issues was investigatory rather than challenging. Mr McDermott put it to Dr Layton that, in view of KCH’s realisation that the sample was small and blood stained, he should have drawn this to CSL’s attention and could have asked for CSL’s opinion. Dr Layton replied that the staff at KCH could not have known from their naked eye examination whether the sample would yield some good foetal material. The fact that it was small and bloodstained did not preclude that. It was CSL who had the facility and expertise to clean, sort and examine the sample under the microscope and to reach a decision as to whether there was foetal tissue suitable for culture. If any doubts existed, CSL would tell KCH. In those circumstances, there was no need for him specifically to ask CSL for their opinion; it was their professional duty to tell him.

[40]When referring to Dr Layton’s evidence generally, the judge described him as a careful and reliable witness and did not at any stage reject as untruthful or unreliable any aspect of his evidence.

[41]Mr Meredith said nothing to contradict Dr Layton’s evidence of the usual working relationship between the two. In so far as he discussed it, his evidence was in accordance with Dr Layton’s. Also, as I have said, Mr Meredith accepted that CSL was under an obligation to communicate its doubts or concerns to KCH. Notwithstanding that evidence, the claimants pursued their argument that KCH was also culpably responsible for the failure of communication.

[42]There was a good deal of evidence from experts about the responsibility for communication between laboratories. Each party had instructed and called a cytogeneticist and a molecular geneticist. No doubt those experts gave valuable evidence about a number of scientific issues which arose during the trial but which are not germane to this appeal. However, as the judge recognised, the issue of who was responsible for good communication was not a scientific matter at all. Nonetheless, all the experts were asked to express their opinions on it. As the judge recognised, their opinions would have been more valuable if any of them had had experience of a commercial working relationship between a molecular genetics laboratory such as KCH and a cytogenetics laboratory such as CSL. But they did not. Each of them worked for an NHS trust which had both types of laboratory ‘in-house’. In most cases, both laboratories were on the same site or even in the same building; in one case, the two laboratories were on different sites about 2 miles apart. In each case, the experts said that there was frequent informal contact between the two laboratories and it was almost inconceivable to them that a sample should be sent for culture and cultured cells be received back without there having been some oral communication between the two. They were of the view that, in their hospitals, given this easy and regular communication, the kind of error which had occurred in this case would not happen.

[43]Given their lack of direct experience, any view which these experts might express about who was responsible for good communication between two laboratories which were physically and commercially separate was hypothetical. The judge recognised that but nonetheless regarded their opinions as relevant and helpful.

[44]At paragraph 78 of the judgment, the judge began his assessment of the expert evidence relating to the issue of communication. He noted that all the experts agreed that good communication was vital. That hardly needed expert evidence. He noted that there were no formal arrangements for communication between KCH and CSL. He said:

“Informal arrangements are not in themselves inappropriate if they work. They will work if, despite their informality, all those concerned have a clear and common understanding of what is expected of them.”

He did not at that stage (or indeed at any stage) say whether, at the material time, KCH and CSL had a common understanding of what was expected of them. As I shall later explain, had he made a finding on that issue, he would have been bound to find that they had a common understanding as to their respective roles and responsibilities. The evidence was all one way.

[45]Instead, the judge went on to discuss the expert evidence on the issue of communication, dealing first with the evidence of the cytogeneticists. There had been attempts to get the experts to meet and to reach agreement. On communication, he recited a passage from an interim joint report which was taken as reflecting the joint view of Dr John Wolstenholme for the claimants and Dr Tony Parkin for KCH. It said:

“… for any arrangement transferring samples between laboratories, both laboratories have the equivalent responsibility for their respective standards of work, including communication. However, the ultimate responsibility for ensuring ‘joined-up’ working arrangements must always remain with the referring laboratory (in this case KCH).”

On the face of it, that sounded as though the two cytogeneticists were placing the responsibility for communication on KCH. However, it is important to see the context in which this statement was made. The experts had been asked to consider an allegation that ‘KCH had failed to institute a protocol of communication and/or failed to communicate between staff at KCH and CSL’. After expressing the view that responsibility for ‘joined-up working’ lay with the referring laboratory, the two experts said that they agreed that written protocols were not an absolute requirement and that many other laboratories operated effectively at that time (1995), relying on less formal verbal agreements, backed-up by established ongoing working arrangements. That statement of opinion accorded with the observation made by the judge himself in his paragraph 78 which I have mentioned above. It seems to me that, taking this section of the interim report as a whole, the experts were saying that, in the absence of an express protocol or an informal agreement backed-up by established ongoing arrangements, responsibility for communication rested with the referring laboratory. As regards the third cytogenetic expert, Dr Rodney Howell, instructed by CSL, the judge recorded that he had not expressed any disagreement with the other two on this issue.

[46]The judge then turned to consider the opinions of the molecular geneticist experts on the issue of communication. These experts were Dr Ann Curtis for the claimants, Dr John Old for KCH and Professor Ian Peake for CSL. They too had made a joint statement which dealt with the allegation that KCH had failed to institute a protocol or proper communication. They were agreed that communication between KCH and CSL should have been better than it was but they were not prepared to attach blame. In the context of the question, that meant that they were not prepared to attach blame to KCH. They volunteered that CSL should have reported back to KCH any potential problems that had been identified.

[47]Then at paragraph 81 of the judgment came an important passage which I must set out in full. “81. The molecular geneticists considered the need for good communication from the point of view of KCH. Their evidence was in a collective sense less clear cut than that of their cytogenetic colleagues. It needs to be seen against the background of the approach of KCH to this question. KCH provided CSL with all the information which CSL required to enable it to culture the sample. That was by way of Lisa Thompson’s letter and the telephone call to Mr Meredith. Professor Peake and Dr Howell (who were both instructed on behalf of CSL) accepted as much. Furthermore, those same experts accepted that the ordinary practice of a cytogenetics laboratory would have been to follow the practice for preparation of a CVS set out at pages 76-80 of “Human Cytogenetics Vol 1 Constitutional Analysis – A Practical Approach by D.E Rooney and B.H Czepulkowski”. That includes an indication that “if there is any doubt about the identity of a piece of tissue avoid using it for culture”. The understanding and knowledge of the cytogenetic literature in Dr Layton’s laboratory was poor so it is unlikely that he or others there knew of the content of that work. Nonetheless, the general point being made by these experts was that if a cytogenetic laboratory had serious doubts about a sample they should not culture it. That was subject to an important caveat, namely that if a sample of this nature were to be cultured, the cytogenetics laboratory should inform those who had submitted it of the problems. Thus Dr Howell and Dr (sic) Peake accepted that KCH might expect that, if CSL encountered problems, they would be told. Dr Old, Dr Curtis and Dr Wolstenholme all agreed with that proposition, as had Mr Meredith.” Pausing there, I observe that the judge’s reference to lack of knowledge of Dr Rooney’s textbook was, with respect, irrelevant, as I think he himself recognised. Whether or not Dr Layton and his staff knew of that particular textbook was beside the point. It was a fundamental part of KCH’s case that they were entitled to assume that CSL would not culture the sample if they were in doubt about whether they had identified foetal tissue. So whether Dr Layton and his staff knew about the textbook did not matter. They had the same understanding of good cytogenetics practice as Dr Rooney.

[48]It is apparent from the passage I have quoted from paragraph 81 of the judgment that there was agreement between the experts (and Mr Meredith) that Dr Layton had been entitled to expect that, if staff at CSL were in doubt about the identity of the sample, they would not culture it. If it was cultured notwithstanding those doubts, Dr Layton was entitled to expect to be told of the doubts. In short, Dr Layton’s main contentions were accepted by all the experts. This was a matter on which the experts were not speaking hypothetically as they were when speaking about systems of communication. At this stage they were expressing their unanimous views as to the different roles, expertise and responsibilities of cytogenetists and molecular geneticists, in respect of which, as it seems to me, they had real expertise and actual experience. The judge did not consider whether those unanimous opinions led to the conclusion that KCH was not liable because Dr Layton had acted reasonably in assuming that he would be told. Instead, he went on:

“That, however, does not dispose of the potential criticism of KCH for failing positively to request that they be provided with information about the sample.”

[49]The judge then considered the evidence of the molecular geneticist experts as to whether any fault should be attached to KCH in respect of communication. As he had already recorded, they were not prepared to criticise KCH. The high point of the expert evidence against KCH on this issue came from Dr Curtis who said that ‘it would have been very good practice for KCH to have asked the advice of the perceived experts who are the cytogeneticists about the chances of obtaining foetal cells after the culture’. However, the judge recorded that in cross-examination, Dr Curtis had agreed with Mr Spencer for KCH, that KCH, having indicated its concerns about the sample to CSL, was entitled to rely on CSL to provide information about deficiencies. She said that a request for information might have been desirable but KCH’s failure to ask positively for a report on the sample was not negligent. That, it should be noted, was the view of the claimants’ expert. (The judge later referred to the evidence of Dr Old and Professor Peake neither of whom were prepared to criticise KCH for any failure of communication.) The judge ended this passage of his judgment by recording that, in answer to a question from Mr Prynne, Dr Curtis had ‘agreed with the proposition that responsibility for ensuring good lines of communication rested with the analytical laboratory, namely KCH’. That, he said, accorded with the views of the cytogeneticists. That opinion, it should be noted, was an expression of general opinion and was not related to the particular facts and circumstances of this case.

[50]At paragraph 82A of his judgment,

the judge summarised the expert evidence as follows:

“I am faced therefore, with clear evidence from the cytogenetics experts that in circumstances where a molecular genetics laboratory sub-contracts the culturing of a sample, it is incumbent on the molecular genetics laboratory to state what information they require on the quality of the sample, irrespective of the duty on the cytogeneticists to report on any problems. The molecular geneticist experts did not take that view, although Dr Curtis did recognise the responsibility of the analytical laboratory to ensure good lines of communication.”

[51]It seems to me that, in that passage, the judge misapprehended the true effect of the cytogeneticist expert evidence. They had not said that it was always incumbent on the referring laboratory to state what information it required. They had said that responsibility for ‘joined-up working’ lay with the referring laboratory but they had qualified that statement by saying that a clearly understood informal arrangement was acceptable. It was for the judge and not for the experts to decide whether, in this case, there was a clearly understood informal arrangement. As I have said, the judge made no finding on that important point.

[52]Then, after a paragraph in which he discussed the importance to KCH of knowing whether the risk of maternal contamination was the very low background level or a higher and uncertain level, the judge reached his conclusion that KCH had been negligent. At paragraph 84 he said:

“In the result, and despite the reluctance of the molecular geneticist experts to criticise KCH for doing nothing in seeking information about the quality of the sample, my conclusion is that there was a duty to do so. I accept the approach of the cytogenetics experts on this topic, supported as they were to an extent by Dr Curtis. This is not an area in which any of these experts had direct experience of similar arrangements as existed between CSL and KCH. None was able to say that they followed the practice of KCH in 1995 although, as I have said, Dr Old came close. They were all to an extent speaking hypothetically. Whilst their views inevitably command respect, I conclude that Dr Curtis was correct to recognise that the laboratory in the position of KCH had responsibility for ensuring there were good lines of communication.”

[53]In my judgment, in reaching this conclusion the judge has fallen into error. First, he has failed to make any finding as to whether there was a clearly understood arrangement between KCH and CSL as to their respective roles and responsibilities, including responsibility for passing information about the suitability of a sample for culturing. The evidence of Dr Layton and Mr Meredith was to the effect that there was a clear understanding that, if CSL had doubts about the suitability of the sample, it would tell KCH. The judge never rejected any part of Dr Layton’s evidence and, although he expressed dissatisfaction with some parts of Mr Meredith’s testimony, he did not reject these aspects of it. Thus, the only finding of fact open to the judge was that there was indeed a clearly understood arrangement as between KCH and CSL. It may not have been an ideal arrangement; in the light of this case, one could clearly devise a better one. However, it was a working arrangement under which both parties knew what they had to do. Under that arrangement, KCH was entitled to assume, unless it heard from CSL to the contrary, that the sample had provided some foetal material suitable for culture and that, when the cultured cells were returned to KCH, they could be relied on as comprising foetal cells.

[54]In my view, the judge could, quite properly, have reached a conclusion based on that material alone. However, he chose to rely on the expert evidence, while recognising that some of the opinions expressed were not based on actual experience and were therefore hypothetical.

[55]In my view, the judge’s second error was to over-state the effect of the cytogenetic expert evidence. The experts did not say that the referring laboratory had a duty to ask for information about any sample it was sending for culture. They said that, if there was no protocol or clearly understood working arrangement, the responsibility for ‘joined-up working’ lay with the referring laboratory. By implication, if there was a clearly understood working arrangement, that would operate.

[56]In addition to overstating the effect of the cytogenetists’s evidence, the judge failed to take account of the evidence upon which all the experts, both cytogeneticists and molecular geneticists, were agreed. This was the passage in paragraph 81 of the judgment which I have quoted in paragraph 47 above. They all agreed that it was normal practice for a cytogenetic laboratory to communicate any doubts about the suitability of the sample to the referring laboratory and that, in the absence of such communication from CSL, KCH was entitled to assume that all was well. That unanimous view of the respective roles and responsibilities of the two laboratories reflected the informal working arrangement between KCH and CSL. It supported the stance taken by Dr Layton.

[57]It follows that I would conclude that, in an otherwise careful and well- constructed judgment, the judge has fallen into error. The only conclusion open to him on the evidence was that KCH and CSL had a clearly understood arrangement by which KCH was entitled to assume that the sample was satisfactory unless CSL informed it to the contrary. It had not been negligent. On that ground alone, I would allow the appeal.

[58]In view of that conclusion, it is not strictly necessary for me to deal with Mr Spencer’s second main complaint, which was that the judge had not dealt adequately with the issue of causation. However, I will deal with it briefly.

[59]In the section of the judgment dealing with causation, the judge dealt only with the issues of whether, if Mrs Wilcock’s concerns about the sample had been conveyed to Dr Layton and in turn to Dr Batayneh, the outcome would have been the sending of another sample (either of CVS or amniotic fluid) from which it would have been discovered that the foetus had BTM and second whether, that having been discovered, the pregnancy would have been terminated. The judge held that that would probably have been the outcome.

[60]The judge did not deal with the issues of causation in respect of KCH’s failure of communication, save very briefly, at paragraph 96 of the judgment, which dealt with apportionment, where he observed, almost in passing, that, if KCH had asked for information about the quality of the cultured sample, Mrs Wilcock’s doubts would have emerged. Mr Spencer’s point was that the judge had found KCH negligent for not seeking information about the sample at the time it was first sent or soon afterwards, not when the cultured sample was returned. There was no finding in relation to causation in respect of the failure to ask for information soon after the sample had been sent to CSL.

[61]It seems to me that the judge has assumed that, if a member of KCH staff (say Lisa Thompson) had asked for a formal report on the status of the sample, Emma Wilcock’s doubts would have been communicated. However, as Mr Spencer showed us, there was evidence from Mr Meredith from which the natural inference would have been that, if a telephone enquiry had been made to him, he would simply have reassured the caller that, if there was a problem with the sample, CSL would let them know.

[62]It appears to me that the issue of causation in relation to KCH’s alleged breach of duty to make positive enquiry of CSL was overlooked. There does not appear to have been any direct evidence at all about how CSL would have responded to a request for information about the sample before culture. Who would have dealt with the request? What internal enquiries would have been made at CSL? What were the arrangements for the management and supervision of Mrs Wilcock’s work? We do not know. If, as seems likely, the letter would have been received by Mr Meredith, we do not know what enquiries he would have made before replying.

[63]I would conclude therefore that the holding of liability against KCH was also flawed on the ground that the judge did not make a reasoned finding to support the conclusion that, if KCH had enquired of CSL, Mrs Wilcock’s doubts would have been communicated.

Cross-appeal

[64]I have read in draft the judgments of Sedley and Dyson LJJ on the cross-appeal. I agree with them and have nothing to add.

Conclusions

[65]In view of the above conclusions on the liability of KCH, the issue of apportionment falls away. CSL is liable for 100% of the damages. It must also be solely liable to pay the claimants’ costs of the action.

[66]I agree that KCH’s appeal should be allowed for the reasons given by Smith LJ. In this judgment, I shall deal with the claimants’ cross-appeal. The facts have already been sufficiently stated by Smith LJ.

Introduction

[67]It is the claimants’ case that KCH owed them a personal non-delegable duty of care and that KCH is liable for the negligence of CSL, despite the fact that KCH is not criticised for having delegated the task of cleaning and culturing the sample or having delegated that task to CSL. Thus, it is said, KCH is liable to the claimants for the shortcomings in CSL’s performance even though CSL was reputable and experienced and ran a laboratory which was apparently competent to undertake the task entrusted to it by KCH. The judge rejected this case at paras 44 and 45 of his judgment.

[68]In his seminal article “Liability for Independent Contractors” (1956) CLJ 180, 183 Professor Glanville Williams wrote:

“The law is now settled that where a person who is under a duty of care entrusts the performance of the duty to an apparently competent contractor, he is not generally (so far as his own duty of care goes) under a duty to check the contractor’s work, being entitled to rely upon its proper performance. This is particularly obvious where the propriety of the work can only be ascertained by an expert, for otherwise the duty to employ experts would be one of infinite regress.”

[69]What I shall call “the general rule” was expressed in these terms by Lord Bridge in D & F Estates v Church Commissioners 1989 1 AC 177, 208E:

“It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work. To this general rule there are certain well-established exceptions or apparent exceptions. Without enumerating them it is sufficient to say that it was accepted by Mr. Fernyhough on behalf of the present appellants that the instant case could not be accommodated within any of the recognised and established categories by which the exceptions are classified. But it has been rightly said that the so-called exceptions “are not true exceptions (at least so far as the theoretical nature of the employer's liability is concerned) for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff. The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of a master for his servant:" see Clerk & Lindsell on Torts, 15th ed. (1982), para. 3-37, p. 185.” “are not true exceptions (at least so far as the theoretical nature of the employer's liability is concerned) for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff. The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of a master for his servant:" see Clerk & Lindsell on Torts, 15th ed. (1982), para. 3-37, p. 185.”

[70]The question raised by the cross-appeal is whether the circumstances of the present case justify or require a departure from this general rule. Professor Glanville Williams makes the point at pp 183-184 of his article that the cases offer no criteria distinguishing those duties which are non-delegable from those which are not.

The authorities

[71]It is well established that the general rule does not apply in relation to the duty of care owed by an employer to his employees. In Wilsons & Clyde Coal Co Ltd v English

[1938] AC 57

, the employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all reasonable care in entrusting the job to a competent employee, nor could it have been held liable vicariously since common employment would have been a defence. The basis of the House of Lords’ decision was that the employer was liable for breach of a personal duty to see that care was taken by the person whom it appointed to organise the system of work. The employer’s failure to provide a safe system of work was held to constitute a failure by it to discharge the personal non-delegable duty to provide a safe system.

[72]Although the House of Lords did not articulate the reason for deciding that this duty was non-delegable, it would seem that it was based on the fact that(i) by reason of the doctrine of common employment, the employer was not vicariously liable for the negligence of the employee who was entrusted with the task and

(ii) it was undesirable to leave an employee to pursue his claim for compensation against a fellow employee, a remedy of doubtful value. At p 78, Lord Wright said that the obligation owed by an employer to his employee was not discharged by entrusting its fulfilment to employees, even though selected with due care and skill. The (non-delegable) obligation was threefold:

“the provision of a competent staff of men, adequate material and a proper system and effective supervision”

. At p 79, he said:

“What the Court of Appeal have said amounts to reducing the three heads of duty to one only – that is, to engage competent employees of the higher grades and then everything else may be left to them. If that is done, the employers, it seems, will be free from further responsibility. Those whom they have engaged, if chosen with due care and skill, may appoint any other employee, may deal with the provision of paint and material, may determine the system of work. However negligently they may act and however dangerous the results of what they do may be to the workpeople, the employers on this view will be free from liability. The employee will have no remedy against the employer. His only remedy will be against his fellow-employee, which will be difficult to establish and in all probability worthless.”

[73]It is true that Wilsons’ case involved a system of work that had been devised by an employee, not by an independent contractor, and the reasoning and comments of Lord Wright at pp 78-79 might suggest that the principle that he was enunciating was limited to negligence on the part of an employee. But I agree with the comment of Mason J in Kondis v State Transport Authority

(1984) 154 CLR 672

at [21], that the concept of the personal duty which Lord Wright expounded makes it impossible to draw a convincing distinction between the delegation of performance of the employer’s duty to an employee and delegation to an independent contractor. As Mason J said: “On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor”.

[74]Although not articulated as such, it seems to me that the decision in Wilsons’ case was based on policy considerations. The problem created by the doctrine of common employment and the undesirability of leaving employee A who is injured by the negligence of employee B to pursue his remedy against B could only be solved by making the employer personally liable. It is immaterial for present purposes that, although the doctrine of common employment has been abolished, the common law enunciated in Wilsons’ case has not changed.

[75]There has been much judicial debate both here and abroad, as well as in the text books, as to the extent to which the general rule has application in hospital cases. It is necessary to make some reference to these since Mr Trusted relies on them to support his submission that KCH had a non-delegable duty to ensure that CSL performed its task with due skill and care. His basic submission is that a hospital owes a non-delegable duty of care to any patient who is treated in it by any person who is engaged to perform functions on its behalf, whether he or she is an employee or an independent contractor, and that this principle should be applied to the facts of the present case.

[76]I do not find it necessary to rehearse in detail the well known trilogy of cases: Gold v Essex County Council

[1942] 2 KB 293

, Cassidy v Ministry of Health

[1951] 2 KB 343

and Roe v Ministry of Health

[1954] 2 QB 66

. It is sufficient to say that these cases show that there were two schools of thought as to whether a hospital owes a personal non-delegable duty to provide its patients with skilful treatment and as to whether it is liable for the negligent acts and omissions of those who provide treatment, whether they are employees of the hospital or engaged by it as independent contractors. The majority view was that the hospital was liable because it is vicariously liable for the negligence of its employees. But Lord Greene MR in Gold and Denning LJ in Cassidy and again in Roe founded liability on the wider basis that the hospital is liable for the negligence of those who administer treatment in its hospital, regardless of their employment status.

[77]The minority view has been gaining ground, although its precise scope is still being developed. Thus, in Wilsher v Essex Area Health Authority

[1987] QB 730

, both Sir Nicolas Browne-Wilkinson VC (at p 778A to C) and Glidewell LJ (at p 775B to C) said, obiter, that in some circumstances, an action would lie against the hospital for breach of its own direct and non-delegable duty to the patient in respect of negligent conduct occurring in its operations. In X (Minors) v Bedfordshire County Council

[1995] 2 AC 633

, 740, Lord Browne-Wilkinson said:

“The position can be illustrated by reference to the hospital cases. It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of the staff is himself in breach of a separate duty of care owed by him to the plaintiff: Gold v Essex County Council [1942] 2 K. B. 293, 301, per Lord Greene; Cassidy v Ministry of Health [1951] 2 K. B. 343, per Denning L.J.; Roe v Minister of Health [1954] 2 Q.B. 66; see also Wilsons & Clyde Coal Co. Ltd. v English [1938] A.C. 57; McDermid v Nash Dredging & Reclamation Co. Ltd. [1987] A.C. 906. Therefore in the cases under appeal, even where there is no allegation of a separate duty of care owed by a servant of the authority to the plaintiff, the negligent acts of that servant are capable of constituting a breach of the duty of care (if any) owed directly by the authority to the plaintiff.”

[78]In Robertson v Nottingham Health Authority [1987] 8 Med LR 1, Brooke LJ said at p 13:

“Although it is customary to say that a health authority is vicariously liable for breach of duty if its responsible servants or agents fail to set up a safe system of operation in relation to what are essentially management as opposed to clinical matters, this formulation may tend to cloud the fact that in any event it has a non-delegable duty to establish a proper system of care just as much as it has a duty to engage competent staff and a duty to provide proper and safe equipment and safe premises (compare Wilsher v Essex AHA [1987] QB 747 per Sir Nicolas Browne-Wilkinson at p 778 A-D and Glidewell LJ, agreeing on this point, at p775 B-C). A health authority owes its patient a duty to provide her with a reasonable regime of care at its hospital (Gold v Essex County Council [1942] 2 KB 293 per Lord Greene MR at pp 302 and 304; and per Goddard LJ at p 309; Roe v Minister of Health [1954] 2 QB 66 per Denning LJ at p72, applying what he said in Cassidy v Ministry of Health [1951] 2 KB 343 at pp 359-365, and per Morris LJ at pp 88-89). For examples of analogous cases within a master-servant relationship where an employer was held liable for a systems failure see McDermid v North Dredging and Reclamation Company Ltd [1987] AC 906, per Lord Hailsham of St Marylebone at pp 910F-G and 911F-G and per Lord Brandon at pp 918G-H and 919B-D; and Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 per Lord Wright at pp 81-84. By a reasonable regime of care we mean a regime of a standard that can reasonably be expected of a hospital of the size and type in question – in the present case a large teaching centre of excellence.”

[79]It seems to me that the observations of Brooke LJ were obiter, since he expressed the ratio of his decision later on p 13 in the following terms: “the only rule that this court has to apply in the present case is that if a patient is injured by reason of a negligent breakdown in the systems for communicating material information to the clinicians responsible for her care, she is not to be denied redress merely because no identifiable person or persons are to blame…”.

[80]The editors of Clerk & Lindsell (19th edition) at para 10-85 seem to be of the opinion that the minority view had prevailed, since they say that the hospital cases show that a health authority is under a non-delegable duty to ensure that care is taken in the provision of treatment:

“Thirdly, it now seems clear, following suggestions by Denning L.J. in Cassidy v Ministry of Health and a subsequent decision by the High Court of Australia, that health authorities are under a personal, non-delegable duty to see that care is taken in providing treatment, analogous to the non-delegable duty owed by an employer to his employees. Brooke L.J. said as much in Robertson v Nottingham A.H.A., and it has since been decided, in accordance with this principle, that a health authority which contracts out services to an independent contractor is liable for any fault exhibited by the latter. However, the limits of this principle should be noted. It does not apply where an authority enters into a private arrangement to supply services by contract: nor, it is submitted, does it apply to negligence on the part of a consultant or surgeon specifically chosen by the patient.”

[81]The final English authority to which I should refer is A (A Child) v Ministry of Defence

[2004] EWCA Civ 641

[2005] QB 183

. The wife of a British Army soldier serving in Germany was delivered of a premature baby, ‘A’, by a German obstetrician in a German hospital. A suffered brain damage at birth as a result of the obstetrician’s negligence. A claim was made against the Ministry of Defence (“MoD”) and the English NHS Trust (“the Trust”) which had contracted with the MoD to arrange for designated German hospital providers to provide health care for servicemen and their dependents. It was contended that the MoD and the Trust had a non-delegable duty of care to ensure that ‘A’ and his mother were provided with medical treatment that was administered with due skill and care.

[82]Lord Phillips MR reviewed the hospital cases and at [52] disapproved the decision in M v Calderdale and Kirklees Health Authority

[1998] Lloyd’s Rep Med 157

on a number of grounds including the fact that it was based on the observations of Lord Greene MR in Gold v Essex County Council and Denning LJ in Cassidy v Ministry of Health, “although in neither instance did these represent the reasons for the decision of the majority of the court.”

[83]Lord Phillips did not, however, go on to express a preference for the majority views over those of Lord Greene and Denning LJ. He said at [53] that “in each of these cases the court was concerned with the duty of the hospital that was actually carrying out the treatment of the patient”. He then explained why he rejected the submission that on policy grounds the non-delegable duty of care should be extended beyond cases where the hospital was actually carrying out the treatment. A further argument advanced on behalf of ‘A’ was based on the position of the MoD before it ceased running its own hospitals. Lord Phillips said:

“62. The starting point of Mr Tattersall’s argument was that, when the MoD was running its own hospitals in Germany, it owed service personnel and their dependents a non-delegable duty of care in relation to the secondary medical treatment that they received. The second stage in the argument was that, because the duty was non-delegable, it remained binding upon the MoD after the transfer in 1996 of the provision of secondary health care from the military hospitals to the DGPs. 63. As to the first limb of the argument, I was attracted by the Australian jurisprudence on which Mr Tattersall has relied. It seems to me that there are strong arguments of policy for holding that a hospital, which offers treatment to a patient, accepts responsibility for the care with which that treatment is administered, regardless of the status of the person employed or engaged to deliver the treatment. Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 proceeded on the premise that this is established English law. 64. I am, however, unable to accept the second limb of Mr Tattersall’s argument. We put to him in argument the possibility that, in England, the MoD might abolish all military hospitals and leave service personnel to seek hospital treatment under the NHS. Even in that situation he contended that the non-delegable duty undertaken by the MoD before 1996 would persist. 65. The answer to Mr Tattersall’s argument, as Mr Lloyd Jones submitted, is that the basis of the duty asserted by Mr Tattersall, assuming such duty to be made out, was the fact that the MoD itself undertook the hospital care of its personnel and their dependants. Only while it continued to do so would the duty persist.”

[84]Thus it was not necessary in A’s case to decide whether the approach adopted by Lord Greene and Denning LJ was correct. On any view, the MoD did not owe a non-delegable duty to ‘A’ to ensure that due skill and care was taken by those carrying out the treatment in the German hospital. But Lord Phillips said that there were strong arguments of policy for holding that a hospital which offers treatment to a patient should owe a non-delegable duty to ensure that the treatment is carried out with due skill and care, regardless of whether the person carrying out the care is employed by the hospital or engaged as an independent contractor.

[85]Lord Phillips supported this opinion by reference to the Australian jurisprudence. Kondis is an employer/employee case. Mason J provided a valuable insight into the rationale for the imposition of a non-delegable duty of care. He said:

“32. The principal objection to the concept of personal duty is that it departs from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. The failure in Wilson’s Case to acknowledge this departure and to advance a convincing reason for fixing the employer with a more stringent duty made the reasoning in Wilson’s Case vulnerable to criticism. However, when we look to the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. As I said in Introvigne (at p. 755) “…the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others…”

. That statement should be expanded by adding a reference to safeguarding or protecting the property of other persons, a matter which did not present itself for consideration in Introvigne. 33. The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v. Easton the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant’s property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety in circumstances where the person affected might reasonably expect that due care will be exercised. As we have seen, the personal duty which has been recognised in the other cases which I have discussed, such as Dalton v. Angus, may rest on rather different foundations which have no relevance for the present case.” “…the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others…”.

[86]InEllis v Wallsend District Hospital [1990] 2 Med LR 103, in his dissenting judgment Kirby J referred to Kondis and the statement that in some relationships a “special duty” arises and at p 112 said that “the relationship of a hospital to patients is one such relationship, as is that of a school authority to children accepted into its care. He applied the reasoning in Kondis, supported as it was “by reasons of policy and practicality in the modern circumstances of Australian hospitals” and a little later, said:

“As the intensely technological nature of modern hospitals necessitates the occasional invitation of visiting experts (who are not in the strict sense employers or even honorary staff members of the hospital) it is highly desirable that the law should make plain the protection of patients who suffer as a result of the professional expert’s mistakes. So far as the patient is concerned he or she is in the hospital. He or she should be able to look to the hospital to ensure (by insurance or otherwise) that proved wrongs by health care staff occurring at the hospital or arising out of its activities are compensated in full degree. ”

[87]The majority opinion in Ellis was given by Samuels JA. At p 130, he said that proof of the relationship of hospital and patient “will generate a special duty of some kind, closer scrutiny of the facts….is necessary in order to establish its scope. It is a question of what medical services the hospital has undertaken to supply.” In a passage relied on by Mr Trusted, Samuels JA then said:

“It is true that while considerations of loss distribution may have been potent in developing the principle in the area of relations between employer and employee where small independent contractors were at one time notoriously likely to be uninsured against public risk., they are no longer of the same importance, as Whippy points out (op cit at 202). There is no reason to suppose that surgeons are significantly less protected by the embrace of underwriters than hospitals are. The basis of the duty is, more persuasively, the satisfaction of expectations about where liability ought to be sheeted home.”

Discussion

[88]I am prepared to assume (without deciding) that the editors of Clerk & Lindsell are right and that English law has now reached the stage that the approach advocated by Lord Greene and Denning LJ should be adopted. It is true that the extent to which a hospital owes a non-delegable duty to ensure that its patients are treated with due skill and care will depend on the facts of the particular case. But I shall assume that a hospital generally owes a non-delegable duty to its patients to ensure that they are treated with skill and care regardless of the employment status of the person who is treating them. As explained in Kondis, the rationale for this is that the hospital undertakes the care, supervision and control of its patients who are in special need of care. Patients are a vulnerable class of persons who place themselves in the care and under the control of a hospital and, as a result, the hospital assumes a particular responsibility for their well-being and safety. To use the language of Caparo Industries plc v Dickman

[1990] 2 AC 605

, 618Ait is therefore fair just and reasonable that a hospital should owe such a duty of care to its patients in these circumstances. The claim in A’s case failed inter alia because ‘A’s mother was not admitted to an MoD hospital and this court was not willing to extend the non-delegable duty of care to a duty to ensure that the treatment in a hospital over which the MoD had no control was carried out with due skill and care.

[89]As I have said, Mr Trusted relies on the hospital cases. He also relies on the statement by Samuels JA that the basis of the duty is “the satisfaction of expectations about where liability should be sheeted home” and submits that, in the present case, as in the hospital cases, the expectations of the patient or (in this case) the claimant parents were that the hospital to which the patient was admitted or, (in this case) to which the sample was sent, should be fixed with a non-delegable duty of care.

[90]I cannot accept that the expectations of the claimant are relevant to the question whether the hospital owes a non-delegable duty of care. There is no suggestion in the employment cases that the expectations of the injured employee have any relevance in determining the nature or scope of the duty owed to him by his employer. Most employees do not think about such things until they are injured, if at all. The decision in Wilsons’ casewas not based on the expectations of the plaintiff employee. As I have said, although it was not articulated as such, it seems to me that the decision in that case was based on the policy considerations to which I have referred. So too with the hospital cases. I do not think that Samuels JA was referring to the subjective expectations of individual employees or patients. That would be an unacceptably uncertain and unprincipled basis for determining whether a non-delegable duty of care existed. Expectations would vary from patient to patient. In my judgment, the existence and scope of a duty of care cannot depend on the caprice of subjective expectations. I think it is likely that Samuels JA was making a general statement about the expectations of the reasonable person.

[91]But in any event, to ask what the expectations of the claimant (whether reasonable or otherwise) would have been does not provide the answer to the question whether the hospital owes a non-delegable duty of care. I think that it is better to acknowledge that the question whether an employer owes a non-delegable duty of care to his employees to provide a safe system and whether a hospital generally owes a non-delegable duty to its patients is one of policy for the courts to determine by reference to what is fair, just and reasonable. There is no indication that the satisfaction of expectations was the rationale for the views expressed by Lord Greene and Denning LJ or those who have since adopted their views.

[92]Even on the assumption that I have made as to the effect of the hospital cases, I do not consider that they justify the conclusion that, on the facts of this case, KCH owed the claimants a non-delegable duty to ensure that CSL carried out the task entrusted to it with due skill and care. I do not accept that it follows from the fact that KCH is a hospital that the jurisprudence to be found in the hospital cases should be applied. The claimants were not admitted to KCH for treatment. KCH has at all material times provided diagnostic and interpretative services for chorionic villus sampling. But there is no reason to suppose that these services could not have been provided by a specialist laboratory or testing house rather than a hospital. In my judgment, there is a significant difference between treating a patient who is admitted to hospital for that purpose and carrying out tests on samples which are provided by a person who is a patient. Such tests are not necessarily carried out in a hospital. The special duty that exists between a patient and a hospital arises because the hospital undertakes the care, supervision and control of persons who, as patients, are in special need of care. I accept that, if a patient who is admitted to hospital for treatment has tests carried out in the hospital, then the non-delegable duty of care, which for present purposes I am assuming to exist, would extend to the carrying out of the tests. But that is because the conducting of the tests is part of the treatment that the patient is receiving in the hospital.

[93]The general rule is an important feature of our law of negligence. It recognises that the duty to take reasonable care may be discharged by entrusting the performance of a task to an apparently competent independent contractor. As Mason J pointed out in Kondis, the concept of a personal non-delegable duty is a departure from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, namely a duty to ensure that reasonable care is taken. In my view, any departure from the general rule must be justified on policy grounds. If the position were to be otherwise, there is a danger that the general rule would become the exception rather than the rule. As I understand it, that is not our law.

[94]There is no basis for finding that a special duty was owed by KCH to the claimants in this case. There are no policy reasons for departing from the general rule here. The claimants were not being treated by KCH. Mrs Farraj was receiving treatment from the King Hussein Medical Centre in Amman. There is not even any evidence that the claimants were aware that Dr Batayneh was sending or had sent the sample to KCH. KCH did not undertake any special responsibilities to the claimants (such as those undertaken by employers to their employees, hospitals to the patients whom they treat and schools to the children who are placed in their care).

[95]It is perhaps helpful to consider three cases. In case A, a developer sends a piece of concrete to a specialist laboratory for testing of its chemical composition. In case B, a car manufacturer sends a piece of steel to a specialist laboratory for testing of its tensile strength. Case C is the present case. In each case, the specialist is an independent contractor who has an excellent reputation. Suppose that in each case the specialist is negligent with disastrous consequences. In case A, the building that the developer is constructing collapses because the concrete is wholly unsuitable for its purpose as its chemical composition is materially weaker than that which was reported by the specialist. In case B, cars manufactured with the steel bend because its tensile strength is substantially weaker than was reported by the specialist. I do not think that there can be any doubt that, if the developer or the car manufacturer were sued in negligence on the basis that they had a personal and non-delegable duty of care, such a claim would fail. A defence based on the general rule would succeed. If the position were otherwise, it is difficult to see what the content of the general rule could be.

[96]In my judgment, by parity of reasoning the claim made against KCH must also fail. In support of his argument that KCH’s duty was non-delegable in this case, Mr Trusted relies on two particular points. First, he relies on the claimants’ expectations. I have already said why I do not consider that expectations are relevant. I would add that, even if the claimants knew that the sample had been sent to KCH, it is difficult see why their expectations that liability should rest with KCH should count for any more than the expectations of the claimant in cases A and B that liability should rest respectively with the developer and the manufacturer. Whatever expectations the claimant in case A and B might have, his claim would fail.

[97]Mr Trusted’s second point is that the consequences of error in this case could be (and tragically have been proved to be) disastrous for the claimants. But that cannot be a basis for finding a personal non-delegable duty. The consequences of the building collapsing and the cars being manufactured with unsuitable steel in case A and B could be disastrous too. But that is not a sufficient reason for holding that the claimant in case A and B would succeed.

[98]To summarise, there are no good reasons for departing from the general rule in this case. It follows that I would dismiss the cross-appeal.

[99]I agree with Lord Justice Dyson that the duty of care which KCH undertook was lawfully delegated to CSL, and with Lady Justice Smith that on the facts of this case KCH were in breach of no residual duty of care which they owed to Mr and Mrs Farraj. The sole responsibility for the error and its compensable consequences rests upon CSL.

[100]The notion of a non-delegable duty of care, on which Mr Trusted has built his argument, has to be seen and appraised in its historical context. It was in the ground-breaking personal injuries case of Priestley v Fowler (1837) 3 M&W 1 that the doctrine of common employment emerged. Priestley was a butcher’s man who was injured when a van overloaded by fellow employees collapsed, injuring him. His lawsuit was founded on the principle of a master’s vicarious liability for his servant’s negligence, to be found as far back as Mitchil v Alestree (1676) 1 Vent. 295, but until Priestley’s case deployed only by injured third parties. Priestley’s claim, based on parity of reasoning, against his employer for damages for a fellow servant’s negligence is the first such claim on record, and it was met by an instant judicial response that this was taking vicarious liability too far. In a reserved judgment of the Court of Exchequer, Lord Abinger CB held not only that the overloading should have been apparent to the plaintiff, his contributory negligence thereby depriving him of any remedy, but that by accepting employment he had implicitly consented to run the risk of injury by negligent fellow-employees. The latter, while not fully spelt out in Priestley v Fowler, was put beyond doubt in Bartonshill Coal Co v Reid (1858) 3 Macqu. 265 by the House of Lords (who took the opportunity to silence the dissenting views of the Scottish courts on the ground – per Lord Cranworth - that “it would be most inexpedient to sanction a different rule to the north of the Tweed”). Lone dissents south of the Tweed, for example that of Martin B in Smith v Howard (1870) 22 LTNS 130, went unheeded. The decision of Byles J in Clark v Holmes (1862) 7 H&N 937 that a mine manager was the owner’s delegate rather than a fellow servant was rapidly overset by the House of Lords in Wilson v Merry and Cunningham (1868) LR 1 HL (Sc.) 326.

[101]This, parenthetically, was not the only escape devised by the courts from the implications of vicarious liability. For several decades the doctrine of identification was used (in England – the Scots would have none of it) to deny compensation to members of the public who were injured by the dual negligence of their own carrier (typically a bus driver) and another: by identifying the passenger with the driver, the latter’s partial negligence was attributed to the passenger so as to deny him any redress against the other driver’s employers. As Maule J put it in Thorogood v Bryan

(1849) 8 QB 115

, 132, “the passenger … chose his own conveyance and must take the consequences of any default of the driver whom he thought to trust”.

[102]It is unsurprising that, trapped by the illogical and unjust doctrine of common employment, the courts began to look around for a means of escape. In Smith v Baker

[1891] AC 325

the House of Lords sounded a muted retreat from the doctrine of implied consent. But it was in Wilsons and Clyde Coal Co v English

[1938] AC 57

that a different escape was found in the concept of the non-delegable duty. This was a concept which had survived the doctrine of common employment in relation to such basic obligations – “paramount duties” they were called in Bain v Fife Coal Co 1935 SC 681, 693 - as the duty to institute a safe system of working, to provide safe plant and to employ competent supervisors. The House of Lords in English was able to import into England and Wales the view taken by the Scottish courts that such duties were non-delegable.

[103]Bearing in mind, then, the peculiar considerations of policy and law which for over a century drove the law of master and servant to and fro, caution is needed in importing the palliative concept of the non-delegable duty into other legal relationships. While, as Lord Justice Dyson has explained, there is now persuasive authority for doing so in relation to public hospitals, the present case, because of its facts, is not a suitable vehicle for a definitive decision. This is because the facts do not fit the paradigm of patient and healthcare provider. They concern the provision of analytical and diagnostic laboratory services. So seen, there is no arguable principle of law which prevents their entire or partial delegation (absent some express prohibition) to a competent and reputable specialist. Indeed, there might have been a legitimate complaint against KCL had they not gone to a laboratory such as CSL to have the sample cultured. CSL’s laboratory is where the mistake occurred, and that is where the damages should come from.

Farraj & Anor v King's Healthcare NHS Trust (KCH) & Ors [2009] EWCA Civ 1203

The appeal – the relevant facts in greater detail

The case against CSL

The case against KCH

the judge summarised the expert evidence as follows:

Cross-appeal

Conclusions

Introduction

The authorities

Discussion

Cited in 2 later judgments