ISSUE: whether the hospital is vicariously liable for the defendant(s)

negligence.
3 requirements: A. There must be a wrongful tortious act committed by the defendant (D1 and/or
D2)
B. There must be special relationship between employee-employer (subject to
direction & control)
C. The tort must occur within the course of employment (acting within the interest
of the employer or within job function; within the hospital premises, not outside)

A. Wrongful tortious act (onus / burden of proof on plaintiff)

If there is tortious act, consequently, VL comes in. Since it was proven that
D1 was at all material times the agent/ servant, D2 is held vicariously liable.
(^ referred to judgment of the case:FOO FIO NA v. DR SOO FOOK MUN & ANOR [2007] 1 CLJ
229 (FC)

* Presumably question(s) that may be asked:

Was the risk well informed to the plaintiff and the deceaseds mother?
(a) did the parents consent to the risk of the surgery? (consent from)

B. Defining the relationship: WHETHER THE DEFENDANT(S) (D1 and/or D2) IS

SERVANT/AGENT OF THE HOSPITAL (D3) AT ALL MATERIAL TIMES?

ROE v. MINISTER OF HEALTH [1954] 2 QB 66 where Lord Denning stated:

The hospital authorities are responsible for the whole of their staff and not
only for the nurses and doctors, but also for anaesthetists and surgeons. It
does not matter whether they are permanent or temporary, resident or
visiting, whole time or part time. The hospital authorities as responsible for
all of them. The reason is because even if they are not servants, they are
agents of the hospital to give treatment.

^ cited in case : CHUNG CHU YIN & YANG LAIN IWN.

DR.JIMMY TANG SEK CHEONG & SATU [2012] 5 CLJ 86.

CASSIDY v. MINISTRY OF HEALTH [1951] 1 All ER 574

the organisational / integration test (particularly for skilled, professional
person)

1. What are the terms of the contract between the doctor and the principal,
including any provisions that specify whether the physician is an employee or
independent contractor?
o

whether the defendant(s) are independent contractors or otherwise:(a) is there an express clause in contract that clearly states that D1
or/and D2 is an independent practitioner?
DENNIS LEE THIAN POH & ORS v. DR MICHAEL SAMY &
ANOR [2012] 10 CLJ [note: this case was dismissed,
referred to judgment]

Was the patient informed on the relationship between the hospital and
the defendants before he was given treatment?
{The plaintiff is third party, not a privy to the contract, hence not
bound to the contract between the D1 and/or D2 and the management
(D3). (long shot)}
CHAI BENG HOCK v. SABAH MEDICAL CENTRE SDN BHD &
ORS [2011] 1 LNS 33

Does the hospital (D3) have a hospital licence?

If YES: It is a hospital, subjected to doctrine of non-delegable

duty. Not necessary to decide whether D1 and/or D2 was a
servant or independent contractor.
LIAU MUI MUI V DR R KRISHNAN 1999 1 CLJ

2. Does the principal have (shared) power (ie to select and discharge the
doctor?
If YES : D3 is the employer, D1/D2 not independent contractor
o

Does the hospital have any control over D1 and D2, thus creating a
special relationship?
(a) practice ; (b) fees structure ; duty
If YES: not possible to rely on the contractual relationship and
ignore other the operative clauses as stated in the contract.
CHAI BENG HOCK v. SABAH MEDICAL CENTRE SDN BHD &
ORS [2011] 1 LNS 33

Was D1 and/or D2 in full control of the deceased alone (refer to the

contract) not subject to any control by D3?
If YES: D1 and/or D2 is independent contractor
GURMIT KAUR JASWANT SINGH v. TUNG SHIN HOSPITAL &
ANOR [2013] 1 CLJ 699

3. Does the doctor practice only at one entity or at or for several entities?
If only one entity : D1/D2 is independent contractor
o

Did the hospital assign D1 and/or D2 to treat the deceased?

If YES: D1/D2 not independent contractor

FOO FIO NA V ASSUNTA [1999] 8 CLJ

Did the deceased specifically request for D1 and/or D2 for treatment

(surgery & admission of anesthesia)? @
Did the deceased (patient) specifically choose the D1 and/or D2 as his
doctors?

If YES: D1/D2 is independent contractor

FOO FIO NA V ASSUNTA [1999] 8 CLJ
DENNIS LEE THIAN POH & ORS v. DR MICHAEL SAMY &
ANOR [2012] 10 CLJ [note: this case was dismissed,
referred to judgment]

(a) was D1 and/or D2 known to the deceased or in other words, was

the consultation pre-arranged (private)?

If YES, D1 and/or D2 is an independent contractor. falls into the

exception set out in:
Farraj and Another v. Kings Healthcare NHS Trust and Another
[2009]

4. Does the principal provide the doctor with a salary and benefits, which are
commonly provided in an employer-employee relationship?
If YES: D3 is the employer, D1/D2 not independent contractor
Was the payment made to the hospital instead of D1 and/or D2
personally @ Whether the defendant(s) are salaried employee under
the hospital ?
FOO FIO NA V ASSUNTA [1999] 8 CLJ
GURMIT KAUR JASWANT SINGH v. TUNG SHIN HOSPITAL &
ANOR [2013] 1 CLJ 699

DENNIS LEE THIAN POH & ORS v. DR MICHAEL SAMY &

ANOR [2012] 10 CLJ [note: this case was dismissed,
referred to judgment]

5. Does the healthcare entity handle and collect the doctors patient billings
through its system and in its name, with the power to determine the rates
charged?
If YES: D3 is the employer, D1/D2 not independent contractor
o

Did the hospital (D3) accept the patient for treatment?

If YES: under non-delegable duty which could not be discharged

to a consultant under a contract for service
LIM ZI HONG v. PENGARAH HOSPITAL SELAYANG & ORS

Was the deceased a personal patient of the defendant(s) ? :(a) Was the payment made to the hospital or the defendant?
(b) If hospital, does the defendant receive any share of the profits or a
fixed payment (salary)?
LIAU MUI MUI V DR R KRISHNAN 1999 1 CLJ

6. Are the equipment, supplies, and/or support staff utilized by the doctors
supplied by the entity?
If YES: contract of services, D1/D2 not independent contractor
o

whether worker provides his own equipment?

If YES: independent contractor

Economic reality test:- MARKET INVESTIGATIONS v
MINISTER OF SOCIAL SECURITY ((1969) 2 QB 173)

Were the other medical staffs (nurses, etc) in the hospital instructed to
assist and take instructions from D1 and/or D2?
LIAU MUI MUI V DR R KRISHNAN 1999 1 CLJ

Was there any technical error/ system failure at the material time(s) in
the hospital?
LIM ZI HONG v. PENGARAH HOSPITAL SELAYANG & ORS

Was there an appropriate attention provided by the emergency

station?
(in this case, was the absence of IV Na Dentrolene reasonable?)

(as the possible reaction towards anesthesia should be known to D2

who is an expertise, the failure to provide IV sodium Dentrolene, was it
reasonable? )
PENGARAH HOSPITAL SELAYANG & ORS v. AHMAD AZIZI
ABDULLAH JAMES & ORS [2013] 3 CLJ 833 (CA)
^ cited on para [18] : Negligent system of medical care
DOMINIC PUTHUCHEARY & ORS v. DR. GOON SIEW FONG
& ANOR [2007] 5 CLJ 38; [2007] 5 MLJ 552, CA, at p. 556.
o

Were the other employees and/or workers and/or agents (I.e. medical
nurses) negligent?
TAN ENG SIEW & ANOR V JAGJIT SIDHU & ANOR [note: in
this case, it was decided that the employees did not
commit tort, hence not negligent]

c. course and scope of employment: WHETHER THE ACT OCCURRED WITHIN THE
PREMISE OF THE HOPSITAL DURING MATERIAL TIMES
o

Does the hospital provide medical treatment and advice to the public
on payment of fees at the premises known (locality of the particular
hospital)?
LIM ZI HONG v. PENGARAH HOSPITAL SELAYANG & ORS