Farraj v Kings Healthcare Trust and Another [2009] EWCA Civ 1203
Martin Spencer QC and Jane Mishcon successfully represented Kings Healthcare NHS Trust (KCH) in its appeal to the Court of Appeal against the finding by Burnett J that KCH was one-third liable to the Claimants. The Court of Appeal found that KCH was blameless, and that the co-Defendant, Cytogenetic Services Limited ("CSL"), was wholly liable to the Claimants. Judgment was handed down on 13 November 2009.
The case arose out of the testing of a sample of chorionic villus sent from Jordan, and involved a claim for "wrongful birth", the Claimants' son having been born with a rare blood disease, Beta Thalassaemia. Whilst the result of the appeal turned on the facts, an important point of law was raised by the Claimants' allegation that KCH owed them a non-delegable duty whereby KCH was liable for CSL's negligence.
In rejecting this argument, again on the facts, the Court of Appeal expressed views on hospital liability which are of general and important application. Dyson LJ, with whom the other members of the Court agreed, stated that he was prepared to assume that
"a hospital generally owes a non-delegable duty to its patients to ensure that they are treated with skill and care regardless of the employment status of the person who is treating them. As explained in Kondis, the rationale for this is that the hospital undertakes the care, supervision and control of its patients who are in special need of care. Patients are a vulnerable class of persons who place themselves in the care and under the control of a hospital and, as a result, the hospital assumes a particular responsibility for their well-being and safety. To use the language of Caparo Industries plc v Dickman [1990] 2 AC 605, 618A it is therefore fair just and reasonable that a hospital should owe such a duty of care to its patients in these circumstances."
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