[2009] CSOH 97
















in the cause

















Pursuers:  Dunlop, Q.C. ;  Messrs Allan McDougall

Defenders:  Crawford, Q.C.;  CLO, NHS Scotland 


1st July 2009

[1]        This is an action for damages in respect of loss, injury and damage which the pursuer claims to have suffered due to negligence in her ante-natal care in 1994. 

[2]        I heard a procedure roll debate.  Miss Dunlop for the pursuer tendered a minute of amendment which sought to delete the second pursuer (who had already abandoned his case) and to delete Lothian Primary Care NHS Trust as a defender.  The minute of amendment thereby left Lothian Health Board as the defenders.  I understood this was required as a result of changes in the organisation of the Health Service.  There was no objection on behalf of the defender.  I allowed the record to be amended and found no expenses due or by either party in respect of it.


[3]        The pursuer gave birth to her son on 6 February 1995.  He suffers from cystic fibrosis. Had she been told that the foetus had cystic fibrosis, she would have terminated the pregnancy.  She was not so advised and seeks reparation in respect of negligence which she alleges on the part of those attending to her ante-natal care.  There are difficult questions about damages in this situation.  It was agreed by both parties that these questions be left over and the procedure roll before me was a discussion of the duties which the defenders owe or do not owe to the pursuer. 

[4]        In July 1994, the pursuer, being pregnant, was referred by her GP to Dr Farquharson, Consultant Obstetrician at the Eastern General Hospital, Edinburgh.  In common with other women so referred, she was sent a leaflet prior to her attendance headed “Cystic Fibrosis Carrier Testing for Couples.”  This leaflet is referred to on record and was produced by Miss Dunlop on the day of the debate.  There was no objection and I allowed it to be lodged.  The leaflet has no indications on it of its authorship.  It sets out a number of questions and answers beginning by explaining what cystic fibrosis is.  It goes on to explain that in Britain one person in twenty five has a single cystic fibrosis gene, which is harmless.  If a man and woman each carry such a gene, there is a one in four chance that any baby they have will have cystic fibrosis.  It is said that this happens to one in six hundred couples.  The next two questions and answers are in the following terms:-

“What do I do if I would like to be tested?

We can test to see if you and your partner are cystic fibrosis carriers.  At the Ante-Natal Clinic we will take a mouthwash sample from you.  With your appointment literature, you will find one specimen container.  This is for your partner’s mouthwash sample.  Please ask him to write his name and date of birth clearly on the container.  To give a mouthwash sample, half fill the container with tap water, swill the water several times around the mouth, and spit back into the container.  Please bring your partner’s mouthwash sample with you to the Clinic.

            At the laboratory, the female sample will be tested first.  If this is negative (you do not carry a cystic fibrosis gene), the male sample will not be tested.  The result will be recorded as COUPLE NEGATIVE.  If the female sample is found to be positive (you do carry a cystic fibrosis gene), the male sample is then tested.  If this is found to be negative, the result is then recorded as COUPLE NEGATIVE.  If however both female and male samples are found to be positive, the result will be recorded as COUPLE POSITIVE.

            This test can identify 85% of cystic fibrosis carriers and we can then give you a negative or a positive result.  If the result is positive we will contact you within 10 days.

What happens next?

If you and your partner are both found to carry a single cystic fibrosis gene, you will be offered genetic counselling which will give you much more information about the disease.  You will be offered amniocentesis or chorionic villus sampling which can tell for certain if the baby has cystic fibrosis.  If the result does show that the baby is going to have the disease, you may wish to consider termination of pregnancy.”

[5]        Thus it can be seen that the leaflet was sent to the pursuer before she went for her first appointment at the hospital (the booking appointment) and that it invited her to bring her partner’s mouthwash sample with her if she wanted to be tested.  The leaflet explained that in the case of a positive result, she would be offered genetic counselling and further testing with a view to finding out for certain if the foetus had cystic fibrosis.  In that event, it is stated that she may wish to consider the termination of the pregnancy.  There is nothing in the leaflet about who will carry out the analysis of the mouthwash sample.

[6]        The pursuer attended for her appointment and gave her own mouthwash sample.  It was sent to the Western General Hospital, Edinburgh for testing.  She was advised that it was negative.  The pregnancy proceeded and her son was born, suffering from cystic fibrosis.  His CF genotype is D508/DF508.  She carried the cystic fibrosis mutation DF508 on one chromosome, as did her partner.  That being so, there was a significant risk that a child born to them would develop cystic fibrosis.  The sample she gave demonstrated a positive result;  it was a poor quality sample, however, and should have been repeated.

[7]        The defenders admit that the pursuer was referred to the Eastern General Hospital, Edinburgh and that a mouthwash sample was taken at the booking appointment.  They admit that it was reported to her as negative;  that the pregnancy continued and that a boy was born who suffers from cystic fibrosis.  The geno-type and the cystic fibrosis mutation are admitted.  The leaflet is referred to for its terms.  The pursuer’s view on termination is not known and not admitted.  There follows a general denial.  The defenders then aver that the cystic fibrosis screening test was carried out as part of a research study by the Human Genetics Unit of the University of Edinburgh, led by Professor Brock.  The study was carried out on samples obtained by the Eastern General Hospital.  The screening was not funded by the Health Board nor by the NHS Trust then responsible for the Eastern General Hospital.  It was carried out by an employee of the University of Edinburgh, one Richard Axton.  Mr Axton was employed by the University of Edinburgh.  The Human Genetics Unit was geographically located in premises at the Western General Hospital.  In reply to averments about certain employees, the defenders aver that their employees, including Dr Warner and Annette Gilfillan were prevented by Professor Brock from having involvement in the study.  Annette Gilfillan carried out research testing of samples obtained at the Simpson Memorial Maternity Pavilion.  Those tests were not part of the Eastern General Hospital study.  The result of any screening test carried out on patients at the Eastern General Hospital were sent by the Human Genetics Unit to the Eastern General Hospital for onward transmission to those participating in the screening test. 

[8]        The pursuer avers that her loss, injury and damage was caused or materially contributed to by the fault of the scientist or scientists who analysed her saliva sample, in the course of their employment.  She avers that it was their duty to show the standard of care of scientists of ordinary competence acting with ordinary care and skills.  It was their duty to reject any sample of insufficient quality to be reported and separately it was their duty to note the appearance of a faint positive result.  It was their duty to conduct a repeat sample.  It was their duty not to report that the sample she gave was negative.  In these duties they failed. 

[9]        The defenders’ reply to those averments is that there are certain duties of care incumbent upon the scientist or scientists who analysed the pursuer’s saliva sample.  They aver however that they, the defenders, are not responsible for any acts or omissions on the part of the scientist or scientists under the explanation that they, the defenders, did not employ the scientist or scientists.  They were not responsible for the study.

[10]      The pursuer goes on to aver that the defenders had a duty to provide the pursuer with ante-natal care, including testing, of the standard of ordinarily competent doctors and scientists, acting with ordinary skill and care.  She avers that in the respect set out above she did not receive care of such a standard and thus the defenders are liable to her.  The defenders deny these averments. 

[11]      The factual averments made by the pursuer in response to the defenders averments about Mr Axton are to the effect that in July 1994 the research study referred to was finished.  The testing was continuing because obstetricians in Edinburgh, employed by the NHS by the various hospitals where ante-natal care was provided, had requested that it be carried on in view of its usefulness.  The pursuer avers that between 1993 and 1997, Professor Brock was head of the department where the pursuer’s sample was tested.  Within that department at the Western General Hospital there was a team comprising employees of the defender, headed by Dr Warner and including Annette Gilfillan.  This team conducted diagnostic testing, not ante-natal testing.  There was also a research team, headed by Professor Brock, carrying out ante-natal testing work.  This team included Richard Axton, a clinical research scientist.  Annette Gilfillan had worked for Edinburgh University, and for Professor Brock, until 31 March 1993.  She then transferred to the employment of the defenders and continued to carry out cystic fibrosis ante-natal testing for Professor Brock on samples from women who had attended the Simpson Memorial Maternity Pavilion.  From 1998 the ante-natal testing service was carried out by University of Edinburgh employees. 

[12]      It can be seen from the pleadings therefore that the issue between the parties is whether the defenders owed a duty of care to the pursuer in respect of the laboratory analysis of the sample taken for the purpose of testing for cystic fibrosis and what the scope of any such duty was.

Defender’s submissions
[13]      Miss Crawford moved me to sustain the defenders’ first plea in law, and dismiss the action.  She submitted that there was no averment that the analysis of the sample was carried out by an employee for whose actings and omissions the defenders were responsible.  The test was done as part of a research study which was not funded by the Health Board and was not carried out by an employee of the defenders.  The defenders were not responsible for the research study.  The defenders aver that they had no responsibility for the funding of the tests and this is not disputed by the pursuer.  The pursuer avers that the defenders had a duty to provide ante-natal care including testing at the standard of a competent doctor or scientist.  Thus they are claiming that the basis on which the defenders are liable to the pursuer is that they have a direct duty to the pursuer, not simply to take care in ante-natal care, including testing, but a duty to ensure that care is in fact taken.  The proposition for the pursuer is that the defenders are personally and directly responsible for care, including testing.  Thus the pursuer must argue that the defender is directly responsible for ensuring that an independent scientist exercises reasonable skill and care in analysing the sample.  The case of fault goes far further than saying, for example, that the defender is under a duty to take care that the scientists it uses are reasonably skilled.  On the contrary, the pursuer claims that the duty extends to ensuring that the scientist does exercise reasonable skill.  Miss Crawford submitted that such a duty is not relevant.  It is not relevant to aver that the defenders have responsibility for fault of an independent professional person carrying out analysis.  In essence the pursuer is seeking to prove that the defenders were under a non-delegable duty of care, or had a direct duty of care to the pursuer, that duty being a duty to analyse the sample with reasonable care and skill.  The person who carried out the analysis was not someone whom the defenders had employed to do so either under a contract of service or under a contract for services.  If the defenders are wrong in their submission that such a duty does not exist as a matter of law, then Miss Crawford submitted that there are not enough averments to enable the court to hold that such a duty relevantly arises in these circumstances.  She argued that the cases to which I refer below show no binding authority that the duty does extend in this way. 

[14]      Miss Crawford argued that in general the defenders, as employers, are not liable for the acts and omissions of an independent contractor in carrying out work instructed by the employer.  She accepted that there are exceptions to this and that in certain situations an employer may be subject to a primary liability for acts or omissions of an independent contractor.  A familiar example arises where there is liability on the employer because he owes a non-delegable duty to his employees to take care regarding a safe system of work and premises.  She made reference to the text book Clerk & Lindsell at paragraphs 6-52 and 6-53.  She argued that liability under a non-delegable duty was not the same as vicarious liability for the acts of an employee.  A non-delegable duty could be described as a personal duty on the employer.  Miss Crawford referred to the case of McDermid v Nash Dredging & Reclamation Co Ltd [1987] 1 AC 906.  In that case the plaintiff was employed by the defendants as a deckhand working on board a tug owned by a Dutch Company and under the control of a Dutch Captain employed by them.  The plaintiff was injured as a result of an accident caused by the Captain failing to adhere to a pre-arranged system.  It was held by the House of Lords that the defendants owed the plaintiff a duty of care to devise a safe system of work for him and to see that the system was operated.  The Captain’s negligence in not operating the system had been central to the operation of the system;  the defendants duty of care was non-delegable in the sense that they were personally liable for its performance and could not escape their liability if it was delegated and not properly performed.  In the speech of Lord Brandon of Oakbrook at page 919 he set out the essential characteristic of a non-delegable duty in the following way:-

“The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it.  Despite such delegation, the employer is liable for the non-performance of the duty.”

The question in this case is whether the defenders had such a duty to the pursuer in the carrying out of the analysis in testing for cystic fibrosis.

[15]      Miss Crawford submitted that the argument against the defenders may be that they accepted primary responsibility for the pursuer in her ante-natal care.  If the pursuer were to seek to argue by analogy from the decision in the case of McDermid v Nash then Miss Crawford would argue that the responsibilities accepted by the defenders in the present case do not include the responsibility to ensure that the samples were analysed with reasonable care and skill.  Miss Crawford submitted that the decision as to whether a duty exists at common law depends on the facts and circumstance of each case.  She accepted that the categories of non-delegable duty are not closed.  She noted, as an example,  the case of Rodgers v Knight Riders [1983] RTR 324 in which the Court of Appeal found that the defendants, who operated a mini-cab service, were liable for the negligence of one of their drivers despite the fact that the driver was an independent contractor.  This was so because the defendants had held themselves out to the general public as a mini-cab firm and had undertaken to provide a mini-cab for the claimant.  Thus in the current case, whilst she made no concession, Miss Crawford submitted that there may have been a non-delegable duty to take reasonable care in the organisation of a regime for its patients. 

[16]      In the case of Farraj v Kings Healthcare Trust and another [2008] EWHC 2468 (QB) a similar situation arose.  The claimants were parents of a child born suffering from an inherited blood disorder known as BTM.  The family lived in Jordan, where the birth took place.  The first defendant ‘KCH’ undertook genetic testing of a sample provided from Jordan and the second defendant, ‘CSL’ cultured the sample.  The testing by KCH was done pursuant to a contract with the Jordanian government.  CSL contracted with KCH to undertake the culturing.  Due to a lack of communication between the defendants a report was provided by KCH to the effect that the foetus would not suffer BTM.  That was wrong.  Proceedings were served on KCH who in defence averred that the culturing of cells was the responsibility of CSL, for whom KCH had no legal responsibility.  The claimants then averred that the duty owed to them by KCH was non delegable so that in so far as failure might rest with CSL, KCH was nonetheless liable for it.  The argument for the claimants is set out in paragraphs 44 and 45.  The starting point was the observation of Lord Browne Wilkinson in X v Bedfordshire County Council [1995] 2 AC 633 at 740:

‘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 staff is himself in breach of a separate duty of care owed by him to the plaintiff…’.

It was argued that there is no difference in tort when a laboratory is offering clinical services and subcontracts part of the work to a separate organisation.  Counsel sought to find support in the analysis by Lord Phillips M. R. in A v Ministry of Defence [2005] QB 183.  However the court in the Farraj case noted that the court in A v Ministry of Defence rejected that argument because the Ministry had no control over what occurred in the hospital which had care of the patient.  The decision in Farraj was that the claimants had not established the existence of a non delegable duty on KCH.  CSL were independent subcontractors, and KCH were entitled to rely on their expertise.  This was an application of the ordinary principles governing independent sub contractors.  Miss Crawford argued that the present case was on all fours with Farraj.

[17]      Counsel then addressed the case of A v The Ministry of Defence [2005] QB183.  This case related to negligence in childbirth.  The mother was the wife of a serving soldier, living in Germany.  The baby was delivered by a German obstetrician in a German hospital.  The baby was born in 1998.  Before 1996 the Ministry of Defence had provided servicemen and their dependants living in Germany with hospital treatment in British Military Hospitals staffed by Ministry employees.  After 1996 the Ministry closed its hospitals and contracted with an English NHS Trust for that Trust to arrange for designated German hospital providers to provide secondary healthcare for servicemen and their dependants in German hospitals.  It was accepted at trial that the defendants, the Ministry of Defence, were not vicariously responsible for the negligent acts or omissions of the doctors in the German hospitals.  The question before the court was whether the Ministry of Defence had a personal duty to exercise reasonable care in provision of medical services, which duty it could not delegate.  The court found that in the circumstances in 1998, the Ministry had no control over the environment in which the child suffered injury at birth and it therefore did not owe a non-delegable duty at common law to ensure that mother and child were provided with medical treatment that was administered with proper skill and care.  Thus, the mother would be obliged to raise any action against the German hospital.  Miss Crawford made reference to the opinion of Lord Phillips, M.R. at paragraph 29, in which his Lordship set out the general rule that a defendant will be liable for the negligent act of a servant committed in the course of his employment but not for the negligent act of an independent contractor.  He recognised that there are cases in which an obligation may be imposed on a person to ensure that an act is done and done carefully in which case that person cannot rely on the fact that the work is done by an independent contractor as a defence.  The difficulty is to identify the circumstances in which such a duty is imposed.  At paragraph 32 he said:

“Those responsible for the operation of a hospital offer a medical service to those whom they accept for treatment.  Some of the authorities recognised that this acceptance for treatment carries with it personal positive duties to the patient which cannot be discharged by delegation.  It is important at the outset to distinguish between four types of duties. 

(1) a duty to use reasonable care to provide access to hospital care. 

(2)  a duty to use reasonable care to ensure that the hospital staff, facilities and organisation provided are those appropriate to provide a safe and satisfactory medical service for the patient.  This is an organisational duty. 

(3)  a duty to ensure that the treatment administered by the hospital to the patient is administered with a reasonable skill and care.  This duty will be broken if one of the hospital staff, however competent, commits an isolated act of negligence in the treatment of the hospital. 

(4)  a duty to ensure that the patient comes to no harm while in the hospital.  This is a duty that amounts to a guarantee that the patient will receive the appropriate treatment.  It will be broken if there is as failure to administer the appropriate treatment, even if this does not involve negligence on the part of anyone”.

[18]      The court found that there was no non delegable duty in the circumstances of the case.  Miss Crawford argued that this was persuasive in deciding the present case.  [19]    Miss Crawford then considered a trilogy of cases starting with Gold v Essex County Council [1942] 2 KB 293, moving to Cassidy v The Ministry of Health [1951] 2 KB 343 and ending with Roe v Ministry of Health [1954] 2 QB 66.  In these three cases, which span the introduction of the National Health Service in 1948, the position of doctors in providing health care was considered.  The history of changing conditions in the provision of health care can be seen.  In Gold, decided in 1942, it was established that a local authority carrying on a public hospital owes a patient a duty to nurse and treat him properly and is liable for negligence, even though the negligence arises from a servant who is engaged on work involving the exercise of professional skills.  The authority was found liable to the plaintiff for the negligent act of a radiographer who was a full-time employee.  Lord Greene M. R. analysed the law of England as it then stood and could find no reason why the authority responsible for running a hospital would not be liable for negligence on the part of skilled persons such as a radiographer employed there full-time.  The context of his judgment was that of its time, when consultant physicians and surgeons were not regarded as employees of hospital boards (many of which were charities) and therefore were not persons for whom the boards had vicarious liability;  nor were their activities carried out by them on behalf of the boards in any sense.  In his judgment however, Lord Greene M.R. found the full-time employed radiographer to be in a different position.  Goddard L J found the authority liable for those properly described as its servants, which included many and varied professional people such as nurses, radiographers, accountants and engineers.  Doctors were at that time still in a different category.  The case of Cassidy v Ministry of Health was decided in 1951.  The plaintiff suffered loss injury and damage due to the negligence of a house surgeon and other medical staff all of whom were employed under contracts of service.  The Ministry was found liable.  Somervell L.J. found that the doctors who had treated the plaintiff were employed under contracts of service, notwithstanding that they were skilfully qualified persons.  Singleton L.J. agreed.  Denning L.J. said:

“In my opinion, authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the self same duty as the humblest doctors; whenever they accept a patient for treatment they must use reasonable care and skill to cure him of his ailment.  The hospital cannot of course do it by themselves.  They have no ears to listen through the stethoscope and no hands to hold the surgeon’s knives.  They must do it by the staff which they employ;  and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him…the reason why the employers are liable in such cases is not because they can control the way in which the work is done – they often have not sufficient knowledge to do so – but because they employ the staff and have chosen them for the task and have in their hands the ultimate sanction for good conduct, the power of dismissal.”

[20]      Thus it can be seen that Denning L.J. did not hold that liability depended on whether the work was carried out under a contract of service or a contract for services.  He said:

“I take it to be clear law, as well as good sense, that where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.” 

Of the particular plaintiff in the case his Lordship said:

“The plaintiff knew nothing of the terms in which they employed their staff; all he knew was that he was treated in the hospital by people whom the hospital authorities had appointed.”

[21]      In the case of Roe, decided in 1954, the authority running the hospital was found liable for the negligence of an anaesthetist.  Denning L.J. held that authorities would be responsible for doctors who worked at the hospital unless the doctor was engaged by the patient himself. 

[22]      Miss Crawford argued that these cases were not authority for the proposition that the hospital authority was liable for all independent contractors.  She made reference to the case of X v Bedfordshire County Council [1995] 3 WLR 152 and to the full quotation from the speech of Lord Browne-Wilkinson at pages 740 as follows:-

“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 owed by him to the plaintiff; Gold v Essex County Council, Cassidy v Ministry of Health, Rowe v Ministry of Health; also Wilsons and Clyde Coal Co Ltd v English [1938] AC 57, McDermid v Nash.  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 duty of care (if any) owed directly by the authority to the plaintiff.”

[23]      Recognising that the cases of Gold, Cassidy, and Roe were approved in X v Bedfordshire, and that the speech of Lord Browne-Wilkinson could be read as approval, albeit obiter, of the existence of a direct duty to see that care is taken, Miss Crawford submitted that the three cases referred to staff employed by the hospital, and that Lord Browne-Wilkinson also referred to staff.  In the present case, the scientist could not be seen as “staff”.

[24]      Miss Crawford addressed the case of Ellis v Wallsend District Hospital [1989] 17 NSW LR 553 and submitted that while it contains an interesting discussion of the way in which liability in this area of the law has developed, it was difficult to know what the ratio of the case is.  In any event it was clear that the doctor in that case said to have been negligent was part of the organisation of the hospital in the sense that he carried out his duties there; but the question of the existence and scope of any duty of care was dependent on the facts. 

[25]      Miss Crawford argued that the case of A v Ministry of Defence gave no support to the existence of a non-delegable duty of care in the present case.  She argued that it was not fair, just and reasonable to put that duty onto the Health Board because the analysis was done by outside contractors.  The extent of assumption of responsibility in accepting the pursuer for ante-natal treatment was to take care in the provision of the treatment which could include taking care in having offered screening by arranging who will do the analysis but that assumption of responsibility did not extend to ensuring that the samples would in fact be tested with reasonable care and skill.  While it might seem attractive to argue that the defenders had a responsibility to ensure that independent scientists would take reasonable care and would exercise reasonable skill, the argument is not supported by authority.  There is no question of the pursuer as being left without a remedy as she could sue the employers of the scientists, the University of Edinburgh.

[26]      Miss Crawford moved the court to sustain the first plea in law for the defenders and dismiss the case as irrelevant. 


The pursuer’s submissions
[27]      Miss Dunlop recognised that the pursuer argues that the defenders are liable in negligence even though the individual said to have been negligent was not an employee of the defenders.  She pointed out that the pursuer had no way of knowing who exactly was doing the analysis.  On the facts averred in this case there appears to be a very close relationship between the scientist and the hospitals because if the pursuer had gone to the Simpson Memorial Maternity Pavilion she would have had her sample analysed by Annette Gilfillan who was an NHS employee.  Because she went to the Eastern General Hospital her analysis was done by Mr Axton who is said not to be an employee.  That illustrates the difficulty for the pursuer.  She simply attended hospital as told to do by her GP and had no way of knowing what would happen thereafter.  Miss Dunlop referred to the text book Winfield & Jolowicz at page 880 and 888.  The authors there raised the difficulty which has arisen in the present case.  They state at page 889 as follows:-

“Alternatively if A is at fault but is not a servant, it may well be the case now that, having accepted responsibility for treatment, the hospital owes a non-delegable duty to ensure that proper care is taken.  Modern developments in the organisation of healthcare may, however, produce more complex problems.  For example, a public health agency may send a patient into the private sector or even abroad for treatment.  Of course the actual provider of the treatment may incur liability for any damage resulting therefrom, but what is the position of the Health Trust which “sends” the patient?  In A v Ministry of Defence, the Ministry cease to provide direct hospital care for British Forces in Germany and their families and entered into an arrangement whereby an English NHS Trust was to procure it from local hospitals.  When the claimant suffered brain damage at birth, the Court of Appeal held that the Ministry was not liable for the fault of the doctor in the German hospital.  It was the case that the Ministry was bound to take care to ensure that proper facilities were available in Germany but no non-delegable duty making it liable for individual acts of negligence arose because it was not providing treatment itself.  This case is not quite on all fours of the standard arrangement whereby an NHS Trust having been approached by a patient in England procures treatment abroad and the decision is not perhaps decisive on that issue.”

[28]      Miss Dunlop referred to the case of Macdonald v The Board of Management for Glasgow Western Hospitals 1954 SC 453.  Two actions were heard together in which Boards of Management pleaded that they were not liable for the negligence of their resident medical officers.  Proof before answer, limited to the question of the relationship between the boards and the medical officers and the extent of the direction and control exercisable by the Boards over them was allowed and thereafter the Inner House reversed the judgment of the Outer House and held that the Boards of Management were responsible for any negligence established on the part of their resident medical officers.  Opinions were reserved as to the position of visiting consultants.  In the opinion of the Lord President (Cooper) at page 478 he said:

“Under the new Act and regulations the obligation on the state is, in my view, to treat the patient and not merely to make arrangements for his treatment by and at the sole responsibility of independent contractors.  We are not here concerned with the visiting consultants called in for a special purpose (if such persons still exist and are entitled to the description applied to them in some of the cases of ‘honorary’ consultants), but with members of the permanent staff and organisation of the hospital, who, on the evidence in this case I am prepared to regard as servants of the Board for the purposes of the rule of respondeat superior, at least as the agents to whom the Board have delegated their performance of part of the duties which are imposed by statute on the Board.”

[29]      Miss Dunlop argued that the case of Macdonald had not been overruled and while it does not appear to have been often cited, is not to be disregarded.  While it is expressed in the language of vicarious liability, it can be read as to indicate that the hospital management are responsible for ordinary standard treatment provided to patients.  In the present case, Miss Dunlop argued that Miss S went for ordinary standard ante-natal care and that she was entitled to rely on the hospital having a duty to take reasonable care to provide it.  Miss Dunlop argued that the idea of vicarious liability depends on the relationship between the defender and the wrong doer.  The employer is fixed with liability for his employees’ actions because he is the employer and because the wrong doer is acting in the course of his employment.  The non-delegable duty, in contrast, depends on the relationship between the defender and the pursuer.  The defender is fixed with liability because he has assumed responsibility for the well being of the pursuer. 

[30]      Miss Dunlop addressed me on the case of A v Ministry of Defence.  She argued that the trilogy of older English cases (Gold, Cassidy, and Roe), go further than Lord Phillips M.R. appeared to recognise, and that in any event his Lordship was correct in stating that there is a strong argument 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.  The facts of that case were of course different from the present one in that there was another layer of authority, it being the Ministry of Defence, not a hospital board, on which the plaintiff sought to fix responsibility.  The position had been accepted by Lord Browne-Wilkinson in X v Bedfordshire County Council.

[31]      Miss Dunlop summed up her position by stating that Macdonald was Inner House authority for the proposition that the obligation of an NHS Hospital Board goes beyond arranging treatment to the provision of treatment itself so that liability for negligence in that treatment cannot be avoided by sheltering behind the appointment of a competent person.  There are obiter dicta of a very high authority that a hospital owes a direct duty to a patient in the case of X v Bedfordshire.  In A v The Ministry of Defence there is obiter dicta of high authority that there are strong policy reasons 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.  She argued that the trilogy of English cases do provide authority for the proposition that a hospital has a direct duty to a patient and that the scope of that duty includes the work of the scientist in carrying out the analysis in this case.  The more recent case of A v Ministry of Defence provided persuasive reasoning.  Miss Dunlop also referred to Albrighton v Royal Prince Alfred Hospital [1980] 2 NSW LR 542, which is referred to in Ellis.  She argued in Australia it has been held that a hospital owes a non-delegable duty of care to a patient accepted for treatment.

[32]      Miss Dunlop’s position was that the case should proceed to a proof before answer.


Reply for the defenders
[33]      In reply, Miss Crawford argued that the ratio of Macdonald is not that of the existence of a non-delegable duty but rather is that the duty lies on an authority where they have an employed doctor.  Therefore any dicta in the case about non-delegable duties are obiter.  She argued that the ratio does not extend to the situation where the hospital contracts with another institution, such as the University, to provide testing in a laboratory.  Miss Crawford argued that if Miss Dunlop was correct, then if a patient were to be admitted to hospital and examined by doctors there who decided that another specialism was needed and so transferred the patient to another hospital then the first hospital would still be liable for anything done by the second one.  She argued that the cases from Australia were not particularly helpful. 

[34]        At the heart of vicarious liability is the relationship between defender and wrong doer whereas in non-delegable duties the focus is on the relationship between defender and pursuer.  She argued that in this case there is nothing in the averments about that relationship to allow the court to infer that there was a non-delegable duty. 


[35]      In my opinion there is sufficient in the pursuer’s pleading to allow a proof before answer.  The pursuer attended hospital because she was referred by her GP for standard ante-natal care.  She received the leaflet relating to cystic fibrosis from the hospital, and accepted the invitation contained in it to have testing.  There is nothing in the leaflet which indicates that the analysis would be carried out by anybody other than the hospital.  It is plain from the leaflet that should the test prove positive, the hospital would then arrange for further testing and information to be given to the patient.  The matter is plainly very important as it is noted in the leaflet that a positive test may, after further testing, result in the patient being offered a termination.  It would in my opinion be open to a patient to think that the hospital, in offering a test, was offering to analyse any samples given.  There is nothing in the leaflet, nor is there anything in the pleading to indicate that the offer of the test was in any way unusual or some type of “extra” not normally offered in maternity care at the time.  It is apparent from the pleadings that other expectant mothers in Edinburgh were offered the same test and that they had the analysis carried out by a person employed by the defenders.  Thus there may be circumstances both relating subjectively to the pursuer’s perception and objectively to the whole circumstances which affect the question of whether the defenders have assumed responsibility and whether it would be fair, just and reasonable to fix them with a duty as argued by the pursuer.  

[36]      I accept that Miss Crawford is correct to say that none of the cases discussed in terms address the situation which arises in this case.  The hospital cases deal with  situations in which the duties incumbent upon hospital authorities were evolving over a period and were changing from the set up which had been common in the first part of the 20th Century when hospitals were run by Charity Boards as places at which independent consultants arranged to treat their patients.  After the inception of the Health Service in 1948 the status of consultants did not change immediately but it is plain that hospitals employed house staff and that even before the inception of the National Health Service, in the case of Gold, it is plain that English law regarded the hospital authorities as liable for radiographers who, while not doctors, are certainly skilled staff.  In the present case the negligence which is claimed to have happened, happened at the hand of a scientist rather than of a doctor.  I appreciate that the defenders did not have control over the work carried out by that scientist but it seems to me that the control test was disapproved in this situation by Lord Denning in 1951 in the case of Cassidy at least in so far as relating to doctors.  It does seem to me that the test rather is whether or not the hospital assumed responsibility for the well being of the patient.  I do not find the case of X v Bedfordshire particularly helpful as Lord Browne- Wilkinson does not discuss the scope of the duties.  Similarly I do not find the case of A v Ministry of Defence particularly helpful as it seems to me that the ratio of that case is that the Ministry of Defence was not liable to the plaintiff because the Ministry of Defence is not in the business of providing healthcare.  The defenders in the present case are.  I did not find the case of Farraj helpful.  It was decided at proof and there is no meaningful analysis of the basis of liability.

[37]      Counsel also referred to the case of Robertson v Nottingham Health Authority [1997] 8 Med LR1, which in my view was essentially concerned with the proposition that a health authority has a non delegable duty to establish a proper system of care, which is not as I understand it in dispute.  The case of M v Calderdale & Kirklees Health Authority [1998] Lloyd’s Law reports 157 was also produced.  Both counsel took the view that it should be produced, but neither placed any reliance on it, it having been effectively disapproved in A v Ministry of Defence.  I agree with them. 

[38]      Counsel for the pursuer submitted under reference to Jamieson v Jamieson 1952 SC (HL) 44 that the case should not be dismissed at procedure roll unless it was clear that it must fail.  I took the view that the pleadings, while sparse, were sufficient to allow inquiry.  It seemed to me necessary to ascertain the facts in order to decide on the scope of any duty owed by the defenders to the pursuer. 

[39]      Consequently I will appoint this case to proof before answer, leaving the defenders first plea in law standing.