A private hospital owes a non-delegable duty of care to patients, thus liable for the negligence of independent contractors under its employ, emphasizing consent and informed treatment choices.

A. Introduction

[1] This judgment discusses, among others, the 4-1 majority judgment of the Federal Court delivered by Mary Lim Thiam Suan FCJ in Siow Ching Yee v. Columbia Asia Sdn Bhd 2024 MarsdenLR 421 ; [2024] 3 MLJ 66; [2024] 4 CLJ 173; [2024] 3 AMR 485 [Majority Judgment (Siow Ching Yee)] regarding the effect of the Private Healthcare Facilities and Services Act 1998 (PHFSA) and Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 (PHFSR) on the question of whether a "private hospital" (defined in s 2 PHFSA) owed a non-delegable duty of care to the private hospital's patients (notwithstanding the fact that the patients were only treated by medical consultants at the private hospital who were its independent contractors and not its employees or agents).

[2] A draft of this judgment (Draft) had been forwarded to Supang Lian and Faizah Jamaludin JJCA. Both my learned sisters had expressed their concurrence with the Draft.

B. Background

[3] These two appeals (2 Appeals) were heard together by us because the 2 Appeals emanated from the same trial in the High Court (Trial).

[4] We shall refer to the parties as they were in the High Court.

[5] The 2nd defendant (2nd Defendant) owns and manages a private hospital of the same name (Hospital).

[6] By virtue of a Consultancy Agreement dated 26 September 2012 (CA), the 1st defendant (1st Defendant) was an independent contractor of the 2nd Defendant and carried out his medical practice as an Ear, Nose and Throat (ENT) Consultant in the Hospital at the material time.

[7] Mr Gan Hong Heng, the brother of the deceased person, Mr Gan Hong Wee (Deceased), was initially the administrator of the Deceased's estate [1st Administrator (Deceased's Estate)]. Before we could deliver our decision for these 2 Appeals on 10 February 2025, unfortunately, the 1st Administrator (Deceased's Estate) passed away on 23 January 2025. The Deceased's Estate then obtained an order of the Court of Appeal on 30 April 2025 for Ms Gan See Joe, the Deceased's niece, to be the 1st respondent in these 2 Appeals.

[8] On 27 March 2014-

(1) at about 11.00 am, the Deceased was brought to the Hospital's Accident and Emergency Department by the 1st Administrator (Deceased's Estate) and the Deceased's mother, Madam Ng Geok Hoon (Madam Ng);

(2) according to the 1st Administrator (Deceased's Estate)-

(a) for the past two days-

(i) there was confused behavior on the part of the Deceased; and

(ii) the Deceased had right lower limb weakness for the past two days; and

(b) on 26 March 2014-

(i) the Deceased suffered blurred vision in both of his eyes;

(ii) the Deceased vomited blood; and

(iii) the Deceased had an episode of fits;

(3) the Deceased was admitted to the Hospital and was attended to by Dr Kalaiselvan Munisamy (Dr Kalaiselvan);

(4) Dr Kalaiselvan-

(a) sent the Deceased for a CT (computed topography) scan of his brain; and

(b) took the Deceased's blood samples;

(5) the CT scan of the Deceased's brain showed that all his sinuses were almost completely filled with retained secretions. Consequently, Dr Kalaiselvan referred the Deceased to Datuk Dr Raihanah Abdul Khalid, a consultant neurologist (Dr Raihanah);

(6) at about 6.00 pm, Dr Raihanah physically examined the Deceased [1st Examination (Dr Raihanah)]. Based on the blood test of the Deceased and the 1st Examination (Dr Raihanah)-

(a) the Deceased was completely blind in both eyes; and

(b) Dr Raihanah diagnosed him with pansinusitis (infection of all the four paranasal sinuses in the head) with possible meningitis [infection of the meninges (the tissue surrounding the lining of the brain)], optic neuritis (inflammation of optic nerves) and seizures [Dr Raihanah's Diagnosis (27.3.2014)].

Dr Raihanah then administered t