Private hospitals in Malaysia may not be held vicariously liable for the negligent acts of independent contractors under certain conditions.

[1] The present appeals arose from a claim in medical negligence brought by Soo Cheng Lin against Sunway Medical Centre Berhad, the owner and operator of a private hospital known as Sunway Medical Centre, and Dr Kok Choong Seng, a Consultant Orthopaedic Surgeon. In these appeals, Soo Cheng Lin will be referred to as the plaintiff, Dr Kok Choong Seng, the surgeon as Dr Kok, and Sunway Medical Centre Berhad as the Hospital.

[2] These two appeals were against the decision of the Court of Appeal given on 31 May 2016. The Hospital appealed against the Court of Appeal's decision on liability ("the appeal on liability"), whereas the Hospital and Dr Kok brought an appeal against the decision on quantum ("the appeal on quantum").

[3] Leave to appeal was granted by this Court on 8 August 2016. In Civil Appeal No: 02(f)-59-08-2016(B) (the appeal on liability), there were four questions of law posed:

(i) Whether the doctrine of non-delegable duty of care expounded in Woodland v. Swimming Teachers Association and Others [2014] AC 537 applies in Malaysia?

(ii) If the doctrine of non-delegable duty of care as expounded in Woodland v. Swimming Teachers Association and Others [2014] AC 537 is applicable in Malaysia, whether the doctrine can or should apply to private hospitals such that those hospitals would be held liable for the tortious conduct or clinical negligence of medical doctors vis-à-vis their patients while practising there as independent contractors?

(iii) Whether the criteria for imposing vicarious liability set out by Lord Phillips in the decision of the Supreme Court of UK in Various Claimants v. Catholic Child Welfare Society and Others [2013] 2 AC 1 and as further explained and elaborated by the Supreme Court of UK in Cox v. Ministry of Justice [2016] AC 660 and Mohamud v. WM Morrison Supermarkets plc [2016] AC 677 applies in Malaysia?

(iv) Whether private hospitals in Malaysia such as the appellant hospital can or should be held vicariously liable for the tortious conduct or clinical negligence of medical doctors vis-a-vis their patients while practising at such private hospitals as independent contractors?

[4] In Civil Appeal No: 02(f)-58-08-2016(B) (the appeal on quantum), the question of law posed reads:

Whether, in the light of s 28A(1)(a) of the Civil Law Act 1956 , a plaintiff who has suffered personal injuries by reason of a defendant's act or omission, may be awarded, as part of damages, medical expenses incurred in respect of his personal injuries, but which medical expenses were borne and paid by an insurer?

[5] We heard these two appeals together on 17 April 2017, and adjourned the matter for our decision. We now give our decision and the reasons for the same.

Material Facts

[6] The plaintiff had a lump in his left forearm and consulted Dr Kok at the latter's clinic in Taman Desa on 9 September 2004. Dr Kok advised the plaintiff to undergo an operation to remove the lump. On 13 September 2004, Dr Kok wrote to the Hospital for the plaintiff to be admitted thereto. On 14 September 2004, Dr Kok performed the operation on the plaintiff's forearm at the Hospital and the plaintiff was discharged on the same day.

[7] On several occasions after the operation on 16 September 2004, 20 September 2004 and 23 September 2004, the plaintiff complained to Dr Kok of pain and numbness at the area of his forearm which was operated upon. Dr Kok referred the plaintiff to Dr Ranjit Singh, a hand and microsur