A private hospital does not owe a non-delegable duty of care to patients for the acts of independent contractors unless an antecedent relationship exists, which was absent in this case.

Mary Lim Thiam Suan FCJ (Majority):

[1] This is the majority decision of the Court. My learned brothers, Mohamad Zabidin bin Mohd Diah, CJM and Abdul Rahman bin Sebli, CJSS, and my learned sister Hasnah binti Mohammed Hashim, FCJ have read this judgment in draft and have agreed with the said draft.

[2] The appellant instituted a claim through his wife as he had suffered severe brain damage as a result of treatment rendered by the 1st and 2nd defendants, medical specialists who practised at a hospital managed or operated by the respondent, the 3rd defendant at the High Court. After a full trial, the claim against the 2nd defendant was allowed while the claims against the 1st and 3rd defendants were dismissed. That decision on liability was sustained on appeal although appeal on quantum was allowed and the amount was varied to some extent by the Court of Appeal. Being dissatisfied, the appellant sought leave to appeal.

[3] On 14 February 2023, leave was granted on the following seven questions of law:

1. Whether the owner and manager of a hospital is in law a provider of healthcare and owes a non-delegable duty of care to patients as stated by the English Court of Appeal in the post Dr Kok Choong Seng & Anor v. Soo Cheng Lin & Another Appeal, 2017 MarsdenLR 1804 case of Hughes v. Rattan [2022] EWCA Civ 107 ?

2. Whether the judgment of the Federal Court in Dr Kok Choong Seng regarding the tort of negligence in a private hospital applies where the owner and manager of the hospital owes separately duties of care in contract and by statute?

3. Whether the owner and manager of a private hospital is liable to patients under a non-delegable duty of care when a doctor practising in the hospital as an independent contractor has insufficient professional indemnity for malpractice?

4. If the answer is yes, whether the owner and manager, as a provider of healthcare, may escape liability for a breach of such duty of care committed by a doctor because the doctor is an independent contractor who has been engaged to practise in the hospital?

5. Whether there is a statutory duty of care, independent of a duty in negligence or contract, owed by the owner and manager of a private hospital under the Private Healthcare Facilities and Services Act 1998 and the subsidiary legislation made thereunder

6. Whether the fees received by a director of a company from the company are 'earnings by his own labour or other gainful activity'under s 28A(2)(c)(i) of the Civil Law Act 1956 ?

7. In light of the post Dr Kok Choong Seng case of Armes v. Nottinghamshire Country Council [2018] 1 All ER 1 decided by the Supreme Court of the United Kingdom, whether after applying the 5-feature test in Woodland v. Essex County Council [2014] 1 All ER 482, a Court must additionally apply the test of whether it is fair, just and reasonable to impose a non-delegable duty of care in the circumstances of the case?

[4] Following the grant of leave, the appellant filed a Notice of Appeal appealing against the decision dismissing the claim against the respondent, and in respect of quantum, for having failed to take into consideration the fee earned as director.

[5] The focus in this appeal is in respect of the liability of the respondent; the other defendants at the High Court are not parties to this appeal. Aside from Question 6 which deals with the calculation of damages, all the other questions pertain to the issue of whether a private hospital may be liable for the tort of a medical practitioner who is said to be an independent contractor. In short, whether such an entity itself owes an independent duty which is non-delegable, regardless to whom it may have delegated that duty to, irrespective who may have performed the act or omission complained of, whether under a contract for service or due to the patient's own choice.

[6] This question was substantially addressed in Dr Kok Choong Seng & Anor v. Soo Cheng Lin & Another Appeal, 2017 MarsdenLR 1804 . However, due to certain