Elliott v Bickerstaff

[1999] NSWCA 453

Reported Decision: 48 NSWLR 214

New South Wales

Court of Appeal

CITATION:	Elliott v Bickerstaff [1999] NSWCA 453
FILE NUMBER(S):	CA 40205/98
HEARING DATE(S):	30 March 1999 and 5 November 1999
JUDGMENT DATE:	16 December 1999
PARTIES :	Appellant - Peter Elliott Respondent - Maree Elizabeth Bickerstaff
JUDGMENT OF:	Handley JA at 1; Stein JA at 2; Giles JA at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 70095/94
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:	Appellant - D J Higgs SC Respondent - A R W Fennell
SOLICITORS:	Appellant - Minter Ellison, Sydney Respondent - Brennan Blair & Tipple, Gosford
CATCHWORDS:	NEGLIGENCE - medical practitioner - swab left in patient - theatre staff keeping count - surgeon not personally negligent - res ipsa loquitur inapplicable - whether surgeon responsible for default of theatre staff because owed non-delegable duty of care - no, because extent of surgeon's duty of care entitled him to rely on theatre staff.
DECISION:	(1) Appeal allowed and cross-appeal dismissed; (2) Verdict and judgment for the plaintiff and order that defendant pay the plaintiff's costs set aside, and in lieu thereof verdict for the defendant and order that the plaintiff pay the defendant's costs; (3) Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act if qualified.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40205/98
DC 70095/94
HANDLEY JA
STEIN JA
GILES JA

Thursday 16 December 1999

ELLIOTT v BICKERSTAFF

JUDGMENT

1    HANDLEY JA: I agree with Giles JA.

2    STEIN JA: I have had the privilege of reading the draft judgment of Giles JA. I agree with it and with the orders his Honour proposes.

3    GILES JA: The appellant was a specialist obstetrician and gynaecologist. The respondent had been his patient for many years. In 1991 the respondent consulted the appellant in relation to abnormal menstruation and symptoms diagnosed as stress incontinence. Following advice by the appellant, the respondent decided to undergo a hysterectomy and colposuspension. The appellant arranged for the respondent’s admission to a hospital, where the surgery was carried out by the appellant on 13 June 1991. A surgical sponge was left in the respondent’s abdominal cavity during the surgery. Physical problems afflicting the respondent led to discovery of the sponge, and it was necessary for the respondent to undergo further surgery for removal of the sponge about six weeks later. She was left with a disfiguring scar from the second operation and ongoing physical and psychiatric problems.

4    The respondent brought proceedings claiming damages from the appellant. Patten DCJ held the appellant liable to the respondent and assessed damages at $167,108.15. His Honour found that no negligence had been established against the appellant personally, but that he should be held liable for the negligent act of leaving the sponge in the respondent’s abdominal cavity during the course of the surgery because the relationship with the respondent was such as to create a particular responsibility for the respondent’s safety which was not capable of delegation. The damages included general damages of $150,000, but his Honour was not persuaded that the respondent’s capacity to earn income had been reduced and the damages did not include any amount for diminished earning capacity.

5    The appellant appealed, as to liability on the ground that his Honour was incorrect in characterising the duty of care owed by the appellant to the respondent as non-delegable and as to damages on the ground that the general damages were excessive. Apart from resisting the appeal, the respondent sought by a notice of contention to uphold the finding of liability in effect on the ground of personal negligence, and she cross-appealed on the ground that an allowance should have been made by way of cushion or buffer to compensate her for interference with her earning capacity. The respondent’s resistance to the appeal and her notice of contention included the ground that a report of Professor G D Tracy material to the appellant’s personal negligence should not have been allowed into evidence.

The trial judge’s reasons

6    In her statement of claim the respondent alleged that the sponge was “left inside the Plaintiff as a result of the negligence of the Defendant”, particularising the negligence -

“(a) Res ipsa loquitur.
(b) Failing to keep a check on or count of surgical sponges.
(c) Failing to remove the sponge.
(d) Failing to keep a proper lookout.
(e) Failing to warn the Plaintiff of the possibility of a sponge being left inside the Plaintiff.
(f) Failing to warn the Plaintiff of the existence of the sponge after it had been left in the Plaintiff.”

7    The allegation and particulars appeared to address personal negligence, but liability for breach of a non-delegable duty of care in the absence of personal negligence was argued without objection at the trial. The particulars were of negligence in carrying out the surgery (paras (a)-(d)), negligence by failing to warn prior to the surgery (para (e)), and negligence by failing to warn after the surgery (para (f)).

8    It is appropriate to set out a lengthy passage in which his Honour dealt with the question of negligence -

“The Defendant whilst frankly conceding that he has no independent recollection of the hysterectomy performed on the 13 June 1991 gave evidence as to the invariable procedures followed and insisted upon by him during the course of his surgical career. He said that a record is made of instruments, swabs and surgical sponges available prior to the commencement of any surgery. The responsibility for recording the relevant details rests upon the Theatre Sister who is, of course, an employee of the hospital not of the Defendant. After completing the surgical procedure and before closing the peritoneum the Defendant’s practice was to remove the retractors used in the operation manually explore the abdominal cavity for any swab or surgical sponge and require confirmation by the Theatre Sister that all instruments, swabs and sponges were accounted for. After closing the peritoneum and before closing the patient’s skin the Defendant said that his practice was again to require the Theatre Sister to confirm that instruments, swabs and sponges had been accounted for. There is no reason to suppose that the Defendant failed on the 13 June 1991 to follow his normal procedures. It is, however, to be inferred that there was a miscount or error by the Theatre Sister or a nurse subservient to her which resulted in unfounded assurances being given to the Defendant.
In the Defendant’s case on liability there was admitted into evidence over the objection of Mr Fennell, Counsel for the Defendant [sic: Plaintiff] because of late service, the report of Professor G D Tracy Emeritus Professor of Surgery University of New South Wales. Professor Tracy explained the risk in these terms -
‘Leaving a sponge within the abdominal cavity is a notorious inadvertent result from an abdominal operation, and seems inexplicable to anyone but a surgeon who performs procedures within the abdominal cavity.
The reason for this potential hazard is that the abdominal cavity is occupied by large solid organs like the liver, spleen and uterus, as well as about 20-30 feet of small and large intestine, together with a large apron of abdominal fat called the omentum, which hangs down from the lower border of the stomach and traverse colon like a large fatty curtain over most of the intestine. Because most incisions are designed to minimise injury to the abdominal wall, they are relatively small in relation to the capacious abdominal cavity and it is quite easy for a sponge to work its way into a hidden recess within the abdominal cavity, where it is extremely difficult to palpate and is out of sight.’
After explaining the ‘elaborate ritual’ established ‘to reduce to absolute minimum’ the possibility of leaving a sponge in the abdominal cavity, in a way which in substance, accords with the Defendant’s evidence, Professor Tracy concluded -
‘For all the reasons given above I do not consider that Dr Elliott has been negligent in leaving a surgical sponge in the abdominal cavity, if before closing the wound he carefully checked the abdominal cavity and was informed by the nurse who is charge responsible for the sponge count that his sponge count was complete and correct.’
In the above circumstances Mr Kennedy, Counsel for the Defendant, submitted that a verdict should be entered in his favour, no negligence having been established against him. Mr Fennell on the other hand submitted that the plaintiff was entitled to succeed on any one of several bases, namely, the Defendant’s failure to locate the surgical sponge prior to closing the peritoneum his failure to warn of the hazard, res ispa loquitur, and the Defendant’s duty to ensure that a sponge was not left in the abdominal cavity was not delegable. None of the first three of these bases is, in my view, sound. It seems to me clear from the Defendant’s own evidence and from the report of Professor Tracy that a skilled surgeon could without negligence fail to locate by inspection and palpatation a sponge left in the abdominal cavity. That is the very reason for the elaborate procedures referred to by Professor Tracy and by the Defendant.
The doctrine of res ipsa loquitur does not, in my view, assist the Plaintiff because, whilst the fact that the surgical sponge was left in the Plaintiff’s abdominal cavity may well constitute evidence of negligence, it is not necessarily evidence of negligence by the Defendant who has given an explanation consistent with there being no negligence on his part. (See for instance Morris v Winsbury-White (1973) 4 All ER 494 and other cases referred to by Professor Fleming, The Law of Torts, 8th Edition, at page 318).
In my opinion the possibility that, through negligence, a surgical sponge might be left in the Plaintiff’s abdominal cavity was not, in the circumstances, a hazard of the surgery of which the Defendant was required to give warning. Indeed, although the Plaintiff in the course of her evidence said that if she had been so warned she would not have consented to the operation, she was not asked what her attitude would have been if the warning had not be couched in bald terms but accompanied by details of the procedures adopted in order to ensure that the hazard did not occur. I do not accept that if an explanation in those terms had been proffered, the Plaintiff would have been dissuaded from undergoing the surgery. Although, as Mr Fennell pointed out, she was not suffering a life threatening condition it is plain that nonetheless the symptoms about which she complained to the Defendant were increasing in magnitude and were significantly affecting the quality of her life.
The recent decision of the High Court in Northern Sandblasting Pty Ltd v Harris (1997) 71 ALJR 1428 discusses the circumstances in which a non-delegable duty may arise in tort. The Court approved, as did the majority in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, the statement of Mason J taken from Kondis v State Transport Authority (1984) 154 CLR 672 at 687 -
‘In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety in circumstances where the person affected might reasonably expect that due care will be exercised.’
In my opinion the relationship between the Plaintiff and the Defendant was such as to create within the principle stated by Mason J in Kondis a particular responsibility for the Plaintiff’s safety which was not capable of delegation. In the result, whilst I am of the opinion that no negligence was established against the Defendant personally he must be held liable for the negligent act of leaving a surgical sponge in the Plaintiff’s abdominal cavity during the course of surgery which he was performing.”

9    The reasons dealt with negligence in carrying out the surgery and negligence by failure to warn prior to the surgery. Negligence by failure to warn after the surgery (particulars para (f)), seems to have been abandoned. It was not raised in the appeal.

Admission of the report of Professor Tracy

10    It can be seen from his Honour’s reasons that the report of Professor Tracy was relied on for the conclusion that the appellant had not been personally negligent, although his Honour relied also on the appellant’s evidence when coming to his conclusion.

11    The proceedings were listed for hearing in a running list to commence on 2 March 1998. Any expert’s reports had to be served at least 28 days before the trial (District Court Rules Pt 28 r 8(3)). Except with the leave of the court or by consent, oral evidence in chief of an expert was not admissible unless covered by an expert’s report so served, nor was an expert’s report admissible unless so served (Pt 28 r 8(6)). The respondent did not serve an expert’s report in accordance with the rules, or at all. The appellant served Professor Tracy’s report, which was dated 28 January 1998, under cover of a letter dated 25 February 1998.

12    The hearing began on 3 March 1998. Counsel for the appellant informed his Honour that the appellant proposed to call the appellant and Professor Tracy, handing up the report of Professor Tracy and acknowledging that it had been served late. He said that the report was “of sufficient moment … for the defendant to press the tender of the document or to seek an adjournment if it’s going to be rejected”; and that the appellant’s solicitors had been waiting for expert evidence from the respondent’s side and “the reason for the delay is because of the plaintiff not having served a document along those lines which would otherwise be expected in those circumstances …”.

13    Counsel for the respondent made plain that he opposed the implicit application for leave in relation to evidence from Professor Tracy and admissibility of his report. He referred to the respondent having had two doctors on call until earlier that day, something which was not otherwise explained or the subject of elaboration. He said that the report was “severely prejudicial to the plaintiff”, and that if it were admitted “it might result in the plaintiff wanting to add a defendant and she is now of course out of time from [sic] doing so”. It was common ground that this referred to the fact that the respondent had brought proceedings only against the appellant, and not against the hospital at which the surgery was carried out and which employed the theatre staff. He indicated that the respondent had not served expert evidence because “if ever there was a res ipsa situation … this is one”, and he said that “by getting that report only last week we are precluded from getting any evidence on it”.

14    His Honour then enquired further of counsel for the respondent, asking how the report of Professor Tracy prejudiced the respondent and saying, “I would have thought what he says is probably fairly obvious anyway. The question of whether it is negligence or not is a matter for me”. Counsel for the respondent acknowledged that negligence was a matter for his Honour, and said that he was nonetheless “to some degree prejudiced by the report going in … we feel that we may be prejudiced”. He repeated that the respondent was out of time to join the hospital, to which his Honour said “You have got that problem anyway …”. After a brief further exchange, including reference to the fact that the appellant himself could give evidence of what happened and it would then be for his Honour to find negligence or no negligence (with which the respondent’s counsel agreed), the ruling was then given -

“HIS HONOUR: My present view is that it doesn’t take the matter very far. If it looms larger in the context of this case as it proceeds and you are subject to some particular prejudice, I would deal with it then --
FENNELL: Very well your Honour.
HIS HONOUR: -- but for the moment I would propose to exercise a discretion and admit that.”

15    The respondent gave evidence, followed by her husband. No expert medical evidence going to the performance of the surgery was called in the respondent’s case, but there was tendered in her case a letter from the appellant to the Medical Defence Union of New South Wales dated 12 August 1991 in which he reported that “two sponge counts - the first before closure of the peritoneal cavity and the second before closure of the skin - were pronounced correct”. The hospital records were also tendered in her case. They included the nurse’s report for the surgery on 13 June 1991 showing use of fifteen swabs and ten sponges and all accounted for. When the letter became known to the respondent’s solicitors was not clear - we received conflicting information from counsel, and the question was not pursued. The hospital records must have been known to the respondent’s solicitor some time before the hearing.

16    The respondent’s case was closed. The report of Professor Tracy was tendered as the first step in the appellant’s case and, according to the transcript, “admitted following objection”. It does not seem that counsel for the respondent said any more in support of the objection, or submitted that as the case had proceeded he was subject to a particular prejudice; the objection was a formal reminder of the earlier opposition.

17    The appellant then gave evidence, describing from standard practice how the theatre sister and sponge sister counted and documented the instruments and sponges before the operation and as used; from his own practice how he explored the abdominal cavity; and from his own practice how he asked the theatre sister whether the count was correct before closing the peritoneum, and again before closing the skin. The appellant’s evidence included that he would rely first on his own exploration to be sure he could not feel any sponges and secondly on the counts of the sister in charge.

18    In cross-examination the appellant said -

“Q. You see it follows doesn’t it doctor you’ve told the court that your practice is to remove the protractors and the sponges and explore the abdominal cavity that’s looking for any sponges, and on this occasion you accept that you must have overlooked a sponge.
A. That’s correct.

HIS HONOUR: Q. that doesn’t necessarily involve any criticism of the doctor, it is just a statement of fact?
FENNELL: Yes.
Q. Indeed there’s no other way the sponge could have been in her abdomen except for the fact that it was overlooked by you as you were removing the protractors and exploring the abdominal cavity?
A. The reason that it may have been there was that the count was obviously incorrect.
Q. Well after you removed the protractors and you explore the abdominal cavity and stop the bleeding you then ask the sister to count the sponges don’t you?
A. That’s correct.
Q. And of course that is in effect for greater caution, it is effectively a back up in case you have missed one that has been left in?
A. That’s the routine yes.”

19    In re-examination the appellant referred to the difficulty of feeling a sponge “once the bowel wraps around it … Because it might be a foot away from you, you are operating on the pelvis and if it is up into the diaphragm it is … “ [answer not completed].

20    Professor Tracy was not required for cross-examination. After some brief further evidence from the respondent about future medical expenses and the tender of some documents, counsel embarked on addresses. Counsel for the respondent did not return to the admission of the report of Professor Tracy, or seek an adjournment so that he could “get evidence on it”. The reference to the two doctors on call remained unexplained and unelaborated.

21    His Honour was required to exercise a discretion under Pt 28 r 8(6) of the Rules. He did so, in the light of the submissions put to him. In this appeal it is necessary that the respondent establish error in the exercise of the discretion in accordance with the established principles described in House v The King (1936) 55 CLR 499 at 504-5 -

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

22    The respondent did not really address these principles. Her submission was that his Honour should not have admitted the report of Professor Tracy because, by reason of the late service, the respondent was not in a position to meet a case that the sponge was left in through the fault of the theatre staff rather than the appellant.

23    The unstated premise in this was that, quite apart from the report of Professor Tracy, the respondent should not have been in a position to address such a case. I do not think the premise should be accepted. The respondent was the claimant in the proceedings, with the burden of establishing negligence on the part of the appellant. Even passing familiarity with the cases would have suggested that it was unwise to treat the claim as “a res ipsa situation”. The different parts played by surgeon and theatre staff, and specifically that an instrument, swab or sponge could be left in a patient without negligence on the part of the surgeon and with the fault being that of the theatre staff in keeping count, were chronicled in the cases, see in particular Mahon v Osborne (1939) 2 KB 14, McDonald v Pottinger (1953) NZLR 196, Karderas v Clow (1972) 32 DLR (3d) 304, and Van Wyk v Lewis (1924) App D (S Af) 438 from four separate legal systems: they are considered later in these reasons. Putting aside the letter of 12 August 1991, the hospital records clearly flagged that the appellant was likely to point to fault of the theatre staff in keeping count.

24    The respondent chose not to lead expert evidence in her case, but could and should have expected evidence from the appellant of the kind he in fact gave, by which the issue of personal negligence or negligence by the theatre staff would be squarely raised. Any disadvantage to the respondent from late service of the report of Professor Tracy should not have been because the issue was unforeseen, or because her counsel was unprepared to meet the issue upon the evidence of the appellant.

25    Even disregarding the reference to the two doctors on call, the assertion that the respondent was “precluded from getting any evidence on it” (referring to the report of Professor Tracy) was therefore not of great weight in the exercise of his Honour’s discretion. Such weight as it had came from the addition of Professor Tracy’s evidence to the issue, but even as to that it is not self-evident that the respondent did not have, or could not have obtained in the course of the available four or five days, her own evidence or material for cross-examination. His Honour was entitled to regard what Professor Tracy said as “fairly obvious anyway”, in that it went to the appellant’s side of an issue which already arose, and the respondent should and could have been equipped to deal with the obvious.

26    But his Honour did not shut the respondent out. It is plain from his ruling that his Honour would have entertained an application for an adjournment if the respondent’s counsel, in the light of the evidence of the appellant or on further consideration of the respondent’s position following the grant of leave, had truly been placed in difficulties. The appellant’s evidence did squarely raise the issue of personal negligence or negligence by the theatre staff, an issue the respondent had already brought into the proceedings by the tender of the letter of 12 August 1991 and the hospital records. The appellant did not seek an adjournment, or to have Professor Tracy made available for cross-examination. No doubt for good reason as then perceived, perhaps the view that the cross-examination earlier set out put the respondent’s case in the best position she could hope for, the respondent’s counsel chose to continue without expert evidence directed to resting the negligence on the appellant as distinct from the theatre staff, and without taking up directly with the appellant or with Professor Tracy the issue of personal negligence or negligence by the theatre staff. No application was made.

27    I do not think the course taken by his Honour involved error. His grant of leave permitting admission of the report of Professor Tracy, while reserving to the respondent the raising of “some particular prejudice” as the case proceeded, was a discretionary decision which was well open to him, and it is not appellable within the principles earlier described.

Personal negligence

28    The respondent submitted that his Honour should have found the appellant personally negligent in carrying out the surgery and in failing to warn prior to the surgery. The submission fell into three parts.

(a) Res ipsa loquitur

29    First, it was said that the fact that the sponge was left in the respondent of itself meant that the appellant, as the surgeon carrying out the operation, should have been found personally negligent: res ipsa loquitur.

30    Even without the report of Professor Tracy, this would have been a difficult submission. With the report, it is untenable.

31    In Morris v Winsbury-White (1937) 4 All ER 499, to which his Honour referred, the plaintiff was found to have a portion of tube in his bladder. A case of res ipsa loquitur against the surgeon who operated on him was rejected, because the tube could have been left in the plaintiff in the course of other treatment by nursing staff and not in the course of the operation (at 499) -

“Here you have the plaintiff, it is quite true, under the control, you may call it, of the defendant, or in his power during the operations of November 27 and December 18, and, if the whole controversy in question in the case had been what happened at those operations, it may be that there might be something in Mr Eddy’s observations and submissions with regard to that. But that is not this case, because the whole case, as presented by the plaintiff, is that this tube got in, I do not know how, between November 27 and February 10, during the time when he was at the hospital, and while he was being dealt with and treated by numerous nurses and sisters, and two resident medical officers and being visited occasionally by the defendant. He was by no manner of means in the control or charge or power of the defendant throughout the whole period, and I think, the doctrine of res ipsa loquitur is quite inapplicable to the facts in this case. I think that it is the plaintiff’s duty in the ordinary way, before he can succeed in his action, to establish by evidence, either out of the mouths of the witnesses that he has himself called or by the witnesses called for the defendant, that the defendant had been guilty of some act of negligence, personally guilty of some act of negligence, which resulted in the presence of this tube in the plaintiff’s bladder.”

32    Morris v Winsbury-White was a case of responsibility divided in time, but there can also be responsibility divided in function. If there is responsibility divided in function, the surgeon may not be liable where the relevant responsibility was that of the theatre staff, so that reasoning according to the maxim res ipsa loquitur is not available. Because of the complexity of modern surgery, the court may not be able to say, depending on the surgery and the happening, that what befell the patient would not have happened without negligence. But even if that can be said, where there is or may be divided responsibility the happening of something which would not have happened without the negligence of either the surgeon or the theatre staff does not mean that there is evidence that it was the negligence of the surgeon.

33    It is convenient at this point to go to a number of cases in which the courts have considered the different parts played by surgeon and theatre staff, including cases in which it has been held that an instrument, swab or sponge was left in a patient without negligence on the part of the surgeon and with the fault being that of the theatre staff in keeping count. The cases illustrate what I have called responsibility divided in function, in the circumstances found in the present case. Some differing views are stated in relation to res ipsa loquitur, but overall in such circumstances reasoning according to the maxim is not available.

34    The cases are relevant also to negligence in the conduct of the surgery and to a non-delegable duty of care, and I will include material citations now and return to them in those connections.

35    In Van Wyk v Lewis, decided in 1924, a swab was left in the plaintiff. She sued the surgeon, relevantly alleging that he was negligent in failing to ascertain that every swab had been accounted for before he closed up the wound. There was evidence that the operation was conducted in accordance with the prevailing practice whereby the theatre sister kept a record of the swabs and, when the surgeon had removed from the abdominal cavity all that he could find, informed him whether the number taken out was correct, and that the surgeon had removed all he could find and left the counting to the theatre sister. The trial judge’s finding that the surgeon had not been negligent was upheld.

36    Innes CJ referred to the plaintiff’s reliance on the maxim res ipsa loquitur, which he described (at 445) as the question whether “the nature of the occurrence is such that the jury or the court would be justified in inferring negligence from the mere fact that the accident happened”. He said that the plaintiff’s allegation of lack of reasonable care and skill could only be determined on consideration of all the facts, of which the nature of the occurrence was an important element but to be considered along with the other evidence in the case: One reason for the negative answer to the question was (at 445) that -

“… it is impossible to appreciate the position, and to vizualize, even imperfectly, the circumstances attending an abdominal operation of this nature without studying the mass of medical evidence placed before the Court”.

37    After describing the medical evidence and emphasising that the question was one of reasonable care in the circumstances, his Honour said (at 449) -

“In connection with this part of the case regard must be had to the conditions under which operations are performed in a modern hospital. These may be gathered from the medical evidence. The surgeon is assisted by an anaesthetist who is a qualified specialist surgeon and who within the limits of his task undertakes a personal responsibility. The theatre sister, though her work is largely mechanical also has important duties to discharge. She sees to the preparation of the theatre, the sterilising of the instruments, the laying out of the swabs and other details. She stands ready to anticipate or to supply the needs of the operator, and she undertakes the counting and checking of the swabs. She is, as a rule - and she was in this instance - not only a duly certified but a highly experienced nurse, upon whom during the period of her instruction and training the importance of keeping a correct tally has been authoritatively impressed. In a general sense she is under the orders of the surgeon, but she also has independent duties to discharge, and checking the swabs is one of the most important. I am unable to say that a surgeon who leaves that task to a competent sister, under such conditions as prevailed at the Frontier Hospital is on that account guilty of negligence.”

38    After dealing with another matter his Honour said (at 450) -

“Finally it was urged that the respondent was answerable for the negligence of the sister. I do not propose in a case to which Miss Ware is not a party to express any opinion as to her liability. It is not necessary to decide exactly how this unfortunate accident came about. But assuming (without determining) that she was negligent in her check, it does not follow that the surgeon is liable for the consequences. The contention is in effect disposed of by the opinion already expressed as to the independent part in the operation played by the sister, and as to the reasonableness of relying upon her count. She was not the servant of the respondent; she was under his general control during the operation, but she was also a collaborator to whom as already pointed out it was reasonable to entrust the work of counting and checking the swabs. It was urged that the respondent contracted to do the work which required special skill, and that he could not, without the consent of the patient, devolve that work on any third person. That argument would make the surgeon liable for every default of the anaesthetist also. But the real position is that the respondent undertook an operation in the performance of which he was bound to exercise all reasonable care and skill. And if it was consistent with the exercise of such care to rely upon the sister to check the swabs – thus setting himself free to devote all his energies to the surgical details of the operation, then he is not liable for her negligence, provided he made all search reasonably possible under the circumstances.”

39    Kotzé JA did think that the maxim res ipsa loquitur applied, such that leaving a swab in the plaintiff raised a prima facie case of negligence against the surgeon; but where the surgeon had gone into evidence, the question of negligence had to be ascertained from consideration of all the facts viewed as a whole (at 451-3). He agreed that the surgeon had established that there was no negligence on his part. He said (at 454) that it was not necessary to enter fully into the question of the surgeon’s liability for any negligence or omission on the part of the theatre sister. In his Honour’s view, while an operating surgeon no doubt had control of the operating theatre and in some circumstances could become liable for the acts of the sister or nurse in attendance, the surgeon could not be held responsible for the failure of the theatre sister to keep a correct count of the swabs: “Her duty in counting and checking the swabs is quite independent of the operating surgeon”.

40    Wessels JA said (at 462) that, where the question was one of reasonable care in the circumstances and the operation was performed in a hospital and with qualified nurses in attendance, the maxim res ipsa loquitur did not apply, because negligence -

“ … depends upon something not absolute but relative. As soon as all the surrounding circumstances are to be taken into consideration there is no room for the maxim”.

41    Although he did not say so expressly, it seems his Honour had in mind his earlier observations about the conditions in which surgery was conducted. He had said (at 457) that the general method or system of operating in a modern hospital was an important factor in judging whether a surgeon operating in a hospital has exhibited “a reasonable degree of skill, care and judgment”, and had continued (at 458-9) -

“The relation of a hospital sister or nurse in a public hospital to a surgeon operating in that hospital is not that of master and servant nor is it analogous to such a relationship. The sister or nurse is an independent assistant of the surgeon though under his control in respect of the operation. In the opinion of the medical profession as disclosed in the evidence, the hospital sister is regarded as an important assistant. She has to prepare the operating theatre to see that the instruments are sterilised and that everything is made ready for the operation. She has her nurses under her and sees that they do what is required of them. She receives her diploma from the State and is employed not by the operating surgeon but by the hospital authorities. The surgeon has no power to appoint her and she receives from him no fees. He has no right to dismiss her. Before and after the operation the doctor has no active control over her. It has been decided in several cases that the doctor is in no way liable for what she does after the operation to a patient in the ordinary course of those duties which are usually entrusted to nurses ( Perionowski v Freeman 4 F & F 977).
It is true that during the actual operation it is the duty of the hospital sister or nurse to do what the doctor requires of her in the same way as it is the duty of an assistant surgeon to act under the principal surgeon’s instructions but it cannot be contended that such an assistant surgeon is the servant of the operating surgeon. The truth is that hospital sisters and nurses form a distinct branch of the hospital. They are members of an allied profession and have duties of their own to perform. They are subordinate to the surgeons but they are in no way their servants. The surgeon is not responsible for what the nurse does in the sense that a master is responsible for the acts of his servant. The surgeon does not insure that he will be responsible for every misfeasance of the nurse. To make him so would make his position intolerable.”

42    His Honour had also said (at 460) -

“In determining whether a surgeon conducting an abdominal operation in a hospital is entitled to place reliance on the counting of the swabs by a qualified and competent hospital sister and whether by so doing he has exercised a reasonable degree of skill, care and judgment, we must consider the prevailing practice of the profession and all the circumstances surrounding the operation. The Court can only refuse to admit such a universal practice if in its opinion it is so unreasonable and so dangerous that it would be contrary to public policy to admit it. In determining whether such a practice is reasonable or not the court must take into consideration the advance of medical science and modern practice. This in the present aseptic treatment of patients it is difficult for the surgeon to do all the work alone: all possible germs must be destroyed which may be deleterious to the patient: the rooms, the instruments and all the other appliances must be rendered aseptic as far as possible. If the doctor were required to do all these things personally it would not be for the benefit of patients generally but to their detriment. Important and necessary work preliminary to an operation and upon which the success or failure of the operation may depend must necessarily be left to the hospital sister and her nurses. We must therefore admit that in operations some team work, as it has been called by several witnesses, is essential. The work has become specialised so as to enable the surgeon to devote all his energy and attention to the highly skilled and difficult work of isolation, dissection and purification. To what extent the doctor should or should not rely upon the team work of the hospital assistants depends entirely on the nature of the particular case.”

43    On the basis of the evidence of practice, his Honour considered that the surgeon was not negligent in leaving the counting of the swabs to the theatre sister, and that negligence in failing to remove the swab had not been established. Acknowledging that it was the surgeon’s duty to use reasonable skill and care to remove all swabs, he referred to evidence to the effect that swabs can be overlooked consistently with due skill and care and said that if the surgeon has used due care in endeavouring to extract all swabs and is told by the nurse that they are all out he is justified in placing reliance on the nurse’s count (at 470-471).

44    In Ingram v Fitzgerald (1936) NZLR 905 the surgeon advised the plaintiff to have two operations at a named private hospital. The plaintiff made the arrangements with the hospital. The surgeon carried out the operations one after the other. In preparation for the second operation a theatre sister applied an incorrect substance to the plaintiff, who was burned. The plaintiff sued the surgeon. It was admitted that the surgeon was not personally negligent, so there was no reliance on the maxim res ipsa loquitur. The question was whether the surgeon was responsible for the negligence of the theatre sister.

45    Speaking for the Court of Appeal, Kennedy J posed the question (at 913) -

“What in the circumstances did the defendant really undertake to do and what was it that was negligently done? Was the negligent act done by some person put into the surgeon’s place to do an act which he had intended to have done as for himself, or was the negligent act done by an independent collaborator upon whom he was entitled to rely?”

46    His Honour answered the question (at 913-4) -

“Under the conditions of modern surgery it is impossible for a surgeon himself to do the whole work involved in an abdominal operation, and he is consulting not his own convenience but the interests of the patient in following the usual course of having the work done by what is termed a team. The operating surgeon in truth can only do part of the work and, if an operation is to be completed quickly, the surgeon must be able to rely upon certain work being done by others and such is the well established practice. Thus, the preliminary painting, the preparation in the theatre and sterilising of the instruments, and the final painting are generally performed by the nurses. The theatre sister and the assistant nurses are supplied by the private hospital where the operation is performed, and they have thus independent duties to perform. In the circumstances of this case, we think the proper inference is that the defendant did not undertake personally to do all the work necessarily involved in the operation. He must rather have undertaken to perform the operation in the hospital selected, and with the appliances there available, and with the assistance and co-operation of qualified, competent, and experienced nurses attached thereto. It is true that he was in supreme control, and that he had the right and the duty to intervene and could do so. But those subject to that control were skilled collaborators with independent duties, and he did not find it necessary, nor would he expect to find it necessary to intervene to direct the manner in which they discharged those duties. They were not his delegates in the sense that they were there to do work which he had contracted to do or to have done. They were, for general purposes the servants of the hospital, but in the theatre they were subject to his directions. In no sense, then, is it a proper inference from the facts that the doctor undertook personally to carry out that part of an operation which, in practice, falls to the nurses. There was no delegation, then, in the ordinary sense; for he did not intend and could not be taken to have assumed, to do their work or to have it done. He undertook to do his part in the operation with reasonable care and skill, and it is consistent with the explicit admission made that, fulfilling his duty of care, he might leave the duty of painting and preparation to the nurses supplied by the hospital for that and other purposes. The nurse, therefore, discharging the duty of painting, was not his servant nor in a position analogous to that of a servant doing work as his servant or agent, and he is, accordingly, not vicariously liable for her negligence.”

47    The court then noted (at 914) that it had long been recognised that certain work could be left to nurses without responsibility necessarily attaching to the surgeon for their acts, citing in particular from Van Wyk v Lewis.

48    A swab was left in the patient in Mahon v Osborne, decided in 1939, leading to his death. His mother sued the surgeon and the head theatre nurse. The trial judge directed the jury that there was a general rule of law which required a surgeon to make sure that no swabs were left in the patient, and the jury found against the surgeon; it found that the head theatre nurse had not been negligent. By majority (Scott and MacKinnon LJJ, Goddard LJ dissenting) it was held that the direction was wrong, and a new trial was ordered.

49    Scott LJ said as to res ipsa loquitur (at 21-2) -

“It is difficult to see how the principle of res ipsa loquitur can apply generally to actions of negligence against a surgeon for leaving a swab in a patient, even if in certain circumstances the presumption may arise. If it applied generally, plaintiff’s counsel having by a couple of answers to interrogatories proved that the defendant performed the operation and that a swab was left in, would be entitled to ask for judgment, unless evidence describing the operation was given by the defendant. Some positive evidence of neglect of duty is surely needed. It may be that a full description of the actual operation will disclose facts sufficiently indicative of want of skill or care to entitle a jury to find neglect of duty to the patient. It may be that expert evidence in addition will be requisite. But to treat the maxim as applying in every case where a swab is left in the patient seems to me an error of law. The very essence of the rule when applied to an action for negligence is that on the mere fact of the event happening, for example, an injury to the plaintiff, there arise two presumptions of fact: (1) that the event was caused by a breach by somebody of the duty of care towards the plaintiff, and (2) that the defendant was that somebody. The presumption of fact only arises because it is an inference which the reasonable man knowing the facts would naturally draw, and that is in most cases for two reasons: (1) because the control over the happening of such an event rested solely with the defendant, and (2) that in the ordinary experience of mankind such an event does not happen unless the person in control has failed to exercise due care. The nature even of abdominal operations varies widely, and many considerations enter it - the degree of urgency, the state of the patient’s inside, the complication of his disorder or injury, the condition of his heart, the effects of the anaesthetic, the degree and kind of help which the surgeon has (for example, whether he is assisted by another surgeon), the efficiency of the theatre team of nurses, the extent of the surgeon’s experience, the limits of wise discretion in the particular circumstances (for example, the complications arising out of the operation itself, and the fear of the patient’s collapse). In the present case, all the above considerations combined together to present a state of things of which the ordinary experience of mankind knows nothing, and therefore to make it unsafe to beg the question of proof. I cannot see how it can be said that the first essentials of the rule, if it can be called a rule apply.”

50    Still in relation to res ipsa loquitur, after reference to earlier cases his Lordship said (at 23-24) -

“How can the ordinary judge have sufficient knowledge of surgical operations to draw such an inference, or, to apply the phrase in the judgment in Scott v London and St Katherine Docks Co [(1865) 3 H & C 596], what does he know of ‘the ordinary course of ‘things’ in a complicated abdominal operation? And if he does not know, is expert evidence admissible to supply the judicial lack of knowledge? But, even if the rule can apply in more surgical cases than I think, there is an additional reason why it cannot apply in the present case. The action was brought not only against the surgeon, but also against the nurse, and a hospital operation depends on the joint efforts of surgeon and nursing staff. Against which defendant, surgeon or theatre sister, did the presumption arise? There is a further point, also. In the present case counsel for the plaintiff put in the defendant surgeon’s answers to interrogatories, and in so far as they described the operation the plaintiff made the description part of her case. How can it be said that the rule continued to apply after that?”

51    After a detailed discussion of the evidence and the direction to the jury, his Lordship said that he did not think that the jury was properly directed as to what the real issue was, the real issue being whether the surgeon had exercised such care as a normally skilful member of his profession might reasonably be expected to exercise in the actual circumstances of the case in question. He concluded (at 37-8) -

“The only other matter on which I desire to say anything is on the relevance to the surgeon’s duty with regard to the removal of packing swabs of any count by the nurses. His duty is undoubtedly to exercise care in the removal of the swabs, giving proper weight to the rare, but not impossible, risk of a swab having lost its Spencer-Wells clip. This risk, it is worth remembering, is one which depends not on the surgeon but on the nurses. It is their duty to see that each Spencer-Wells clip is in good order and that its safety catch is made well fast when the swab to which it is fastened is placed in the surgeon’s hands. So, too, the check afforded by the count depends on the nurses. Those two risks are wholly external, both to the surgeon and to the patient. If an error has been committed, the surgeon cannot either control it or know it. None the less, I do not doubt that over and above all the many signs of danger to the patient which are forcing themselves on his attention, the surgeon has to keep in his mind those two risks of error by the nurses. On the other hand, I do not think the surgeon should be deprived of all support from the count. In a difficult case, where he is anxious for the patient’s sake to close the operation at the earliest possible moment, the fact that he is about to receive a check from the head sister, whom he knows to be careful, is one of the imponderable factors which he may properly have in mind, and indeed to have regard to it may sometimes save a patient’s life. Remembering always that want of care is a matter of degree, and that the jury can only find negligence if, in the light of all the circumstances, they are satisfied that the surgeon has fallen short of the standard of a reasonably careful surgeon in those circumstances, can it be said that the learned judge gave them a sufficient direction? I do not think so. There must be a new trial.”

52    MacKinnon LJ said (at 38) that five persons were concerned in the operation, the surgeon, the anaesthetist, and three nurses, and that the plaintiff “having no means of knowing what happened in the theatre, was in the position of being able to rely on the maxim res ipsa loquitur so as to say that some one or more of these five must have been negligent …”. Noting that the plaintiff had sued only two of the five, and without going into the question of “one or more”, his Lordship said that whether the surgeon had been negligent “involves matters of fact as to which neither the Court nor the jury had knowledge”, and went to the evidence without further reference to res ipsa loquitur.

53    His Lordship’s reasoning (at 43-4) in relation to reliance on the count of the head theatre nurse was slightly different from that of Scott LJ, although also inconsistent with a necessary obligation on the surgeon himself to keep count. He referred to the surgeon’s evidence that he took out all the swabs which he could see or of which he was aware, noting expert evidence that it was “not desirable for the surgeon to grope within with his hands more than is essential”. The surgeon was told by the head theatre nurse that all swabs were accounted for, which must have been incorrect: his Lordship observed that the jury nonetheless found “with a conspicuous lack of logic” that the nurse had not been negligent. In his Lordship’s view, having removed all the swabs which he could see or of which he was aware and received the appropriate answer from the theatre nurse, in accordance with the practice, the surgeon could not be held negligent unless it was also his duty to search for swabs by feel. It depended on the evidence of practice in relation to feeling for swabs. There was what was described as “distorted” evidence about feeling for swabs, which the directions to the jury encouraged them to disregard. A new trial was necessary.

54    Goddard LJ observed (at 50) that “the doctrine of res ipsa loquitur does apply in such a case as this, at least to the extent I mention below”. That extent was (also at 50) -

“The surgeon is in command of the operation, it is for him to decide what instruments, swabs and the like are to be used, and it is he who uses them. The patient, or, if he dies, his representatives, can know nothing about this matter. There can be no possible question but that neither swabs nor instruments are ordinarily left in the patient’s body, and no one would venture to say that it is proper, although in particular circumstances it may be excusable, so to leave them. If, therefore, a swab is left in the patient’s body, it seems to me clear that the surgeon is called on for an explanation, that is, he is called on to show not necessarily why he missed it but that he exercised due care to prevent it being left there.”

55    His Lordship had earlier referred to the evidence to the effect that the surgeon was entitled to rely on the nurse’s count, and had said (at 47) -

“But is that a true statement of his position and the respective responsibilities of surgeon and nurse? I would not for a moment attempt to define in vacuo the extent of a surgeon’s duty in an operation beyond saying that he must use reasonable care, nor can I imagine anything more disastrous to the community than to leave it to a jury or to a judge, if sitting alone, to lay down what it is proper to do in any particular case without the guidance of witnesses who are qualified to speak on the subject. But this much can, I think, be said with certainty. As it is the task of the surgeon to put swabs in, so it is his task to take them out, and in that task he must use that degree of care which is reasonable in the circumstances and that must depend on the evidence. If, on the whole of the evidence, it is shown that he did not use that standard of care, he cannot absolve himself if a mistake be made, by saying ‘I relied on the nurse’.”

56    After reviews of the evidence and the directions to the jury, his Lordship held that there was evidence on which the jury could find that the surgeon had not made such search as on the evidence was required, and that on reading the directions to the jury as a whole it had not been conveyed that the surgeon was bound in all events to remove every swab. It can fairly be said that, although his Lordship was in dissent, his reasoning also did not involve a necessary obligation on the surgeon himself to keep count, and accepted that a surgeon could be found to have taken due care even if a swab had been left in the patient.

57    McFadyen v Harvie (1941) 2 DLR 633, a decision of the Supreme Court of Ontario, was not a swab or sponge case. The surgeon’s assistant sterilised the site of the operation by the application of alcohol. At the commencement of the operation the surgeon cauterised an ulcerated area. There was a flash of flame, and the plaintiff suffered a burn. The trial judge thought that excess alcohol had been ignited, although on appeal this was described as no more than a guess. The plaintiff sued the surgeon and the hospital. She failed against both, and appealed in relation to the claim against the surgeon.

58    In the judgment of Robertson CJO, with which Henderson and Gillanders JJA agreed, it was said (at 666-667) -

“The appellants claim that they are entitled to succeed without establishing how the burn was caused. They say the patient was in Dr Harvie’s care and rely upon the maxim res ipsa loquitur. Before that maxim can be applied, however, it is necessary to establish the extent of Dr Harvie’s responsibility, for he was not the only person engaged. That he was bound to exercise care and skill on his own part no one disputes. But to what extent was he responsible for the acts or negligence of the others who were present, and particularly of Dr Hipwell? The statement of claim alleges that there was negligence on the part of Dr Harvie or of his servants or agents, and by particulars delivered, these servants or agents are named as Dr Baillie and Dr Hipwell. There is nothing to suggest that Dr Baillie, the anaesthetist, had the least connection with the events that on any theory could have caused the burn, and the question is whether and to what extent Dr Harvie is liable for negligence, if there was any, on the part of Dr Hipwell.
I do not think it can be said wholly as a matter of law that at every operation the chief surgeon is responsible for whatever may occur there, or even that in every case he is liable for negligence on the part of an assistant. Something may depend upon the character of the operation, and there may be established rules and customs among surgeons that must be taken into account. The Court has no knowledge of operating-room procedure or practices, nor can it say, without evidence, when an assistant is reasonably required nor for what purposes he may be used. So long as the presence and participation of an assistant are proper, and the assistant is a duly qualified surgeon with the skill and experience necessary for the work properly entrusted to him, I do not see how, purely as a matter of law and without evidence, the Court can find the chief surgeon responsible for negligence of the assistant. There is nothing in this case upon which the Court can say that it was not proper that Dr Hipwell should be present to assist, or the sterilising process be left to him to carry out. Dr Hipwell was a practitioner of sixteen years standing, and was familiar with the kind of operation to be performed, and had himself performed a number of them when a cautery was used. He had examined the patient before the operation, and had advised it and made the arrangements for it. In the absence of any evidence establishing some definite reason why Dr Harvie should have performed the operation unassisted, it is impossible for the Court to say that it was not proper that Dr Hipwell should assist to the extent he did. Neither can Dr Harvie be held liable for negligence on the part of his assistant unless from the circumstances disclosed in evidence, or evidence of the established custom or rule among surgeons, or something of the kind, it can be said that Dr Harvie’s duty as the surgeon in charge extended that far. There is no such evidence here.
…
I am of the opinion that the respondent was not, therefore, either upon the evidence in the case, nor as a matter of law apart from evidence, in such a position of responsibility on this occasion that he was liable for whatever might occur, nor even for negligence of his assistant alone, and I think the principle res ipsa loquitur does not apply. I have not overlooked the point taken by counsel for the respondent that in a case of this character the plaintiff must definitely prove negligence, nor have I overlooked the observations by Tindall CJ in Hancke v Hopper [7 Car & P 81 at 84] that a surgeon does not become an insurer and that ‘If from some accident, or some variation in the frame of a particular individual, an injury happens, it is not a fault in the medical man’. If it not necessary to discuss these matters in view of the opinion I have expressed that for other reasons res ipsa loquitur does not apply here.”

59    In separate additional remarks Gillanders JA said that there was reason to think that something was negligently done or omitted, but (at 670) -

“The difficulty, however, is whether or not the evidence establishes liability against the defendant. Even if one should infer that the burning was the result of the improper use or drying of the alcohol wash, it is not shown by the evidence that the defendant did not, as he was entitled to do, rely on the assumption that others, properly qualified, had completed the preparations with care and that all was in order for him to proceed as he did.”

60    An appeal to the Supreme Court of Canada was dismissed (McFadyen v Harvie (1942) 4 DLR 647). The reasons of the Chief Justice of Ontario were adopted.

61    In MacDonald v Pottinger, decided in 1953, forceps were left in the plaintiff. He sued the surgeon. It was common ground that it was not necessary to use the forceps inside the abdominal cavity, and that their presence in the abdominal cavity was accidental. It was the duty of the theatre sister to count the instruments, and according to established practice the surgeon himself did not do so. The theatre sister failed to keep track of the instruments and, as North J observed, “the question of legal responsibility for the mishap lay among the defendant, the assistant surgeon and the theatre sister”.

62    The case against the surgeon was of negligence in relation to the operation and, separately, negligence in failing to appreciate after the operation that the plaintiff’s complaints were caused by the forceps. As to the first limb of the case, the plaintiff submitted that the jury should have been directed in accordance with the doctrine of res ipsa loquitur. North J said (at 203-4) -

“I would be disposed to agree that proof that a pair of forceps was found in a patient’s body after an operation of itself raises an inference of negligence against someone, though even this may not be entirely free from doubt, for Scott LJ, in Mahon v Osborne [(1939) 2 KB 14; (1939) 1 All ER 535] said: ‘How can the ordinary Judge have sufficient knowledge of surgical operations to draw such an inference, or, to apply the phrase in the judgment in Scott v London and St Katherine Docks Co [(1865) 3 H & C 596], what does he know of ‘the ordinary course of things’ in a complicated abdominal operation? [ibid., 23; 541, 542]. Moreover, the evidence in the present case given by the experienced surgeon called for the plaintiff included this passage:
Can you imagine circumstances under which a pair of forceps could slip into the abdominal cavity without lack of ordinary care or skill on the part of the surgeon? - Yes, I can imagine such an accident happening.
The truth is that so little is known by laymen of the conduct of a complicated operation - the need for speed, the weighing of risk against risk, and the degree of necessary dependence of the surgeon on the care he is entitled to expect will be exercised by other members of the team - that it may be difficult to apply the maxim in the case of a complicated surgical operation. However, assuming in the plaintiff’s favour that the maxim applies in a general way in the case of a surgical operation such as this - and it would seem that MacKinnon LJ, and Goddard LJ, in the same case thought it did apply - I fail to see how that can help the plaintiff in the present case. The furthest MacKinnon LJ would go was this: ‘Five person[s] were concerned in the operation on 4 March: Mr Osborne (the surgeon), the anaesthetist, Nurse Ashburner (as chief, or theatre, nurse), Nurse Edmunds, and Nurse Callaghan. The plaintiff, having no means of knowing what happened in the theatre, was in the position of being able to rely on the maxim res ipsa loquitur so as to say that some one or more of these five must have been negligent, since the swab was beyond question left in the abdomen of the deceased. In fact, she sued Mr Osborne, the surgeon, and Miss Ashburner, the chief nurse, alleging that one or other of them, or perhaps both, must have been negligent. But it was for the plaintiff to establish her case against either or both’ [ibid, 38: 553]. The same situation applies in the present case, though, indeed, it is a stronger case because there was an assistant surgeon as well. Surely if the plaintiff elects, as he has elected, to sue only the surgeon, he must undertake the responsibility of establishing that the person he has sued was negligent.” (footnote references added)

63    After referring to a number of cases, including Ingram v Fitzgerald and Van Wyk v Lewis, his Honour said (at 205) -

“The essential facts in Ingram v Fitzgerald were similar to the facts in the present case, and I conclude, therefore, that it must be accepted in this Court, at all events, that the defendant was not vicariously responsible for the negligence of the assistant surgeon or the theatre sister. How, then is it possible to infer from the presence of the forceps in the plaintiff’s body that the defendant was the person responsible?”

64    His Honour went on to hold, in relation to the second limb of the case, that there was evidence before the jury entitling it to find that the surgeon had been negligent in failing to ascertain from the plaintiff’s complaints after the operation that the forceps were present in his abdominal cavity.

65    In Karderas v Clow, decided in 1972, the surgeon left the theatre while his assistant closed the abdomen. A nurse whose duty it was to count sponges reported to the assistant that the sponge count was correct, and the assistant closed the abdomen. A sponge was left in the abdominal cavity. The plaintiff sued the surgeon and the hospital. It was found that the surgeon was “in command of the operative procedures”, with “a responsibility for the resident assisting him” (at 309), but that in accordance with the then accepted procedures he was not negligent in allowing a competent resident to close the plaintiff’s abdomen in his absence. The resident did not give evidence, and so it was not known what he had done in regard to looking or feeling for sponges. It was held that the resident had been negligent. The nurses charged with the duty of counting the sponges were also found to have been negligent. The resident and the nurses were employees of the hospital, and the hospital was liable for their negligence. After reference to McFadyen v Harvie, it was held that there was “no vicarious liability on” the surgeon.

66    Confining attention for the present to res ipsa loquitur, these cases cast doubt on whether the maxim can be invoked at all in relation to negligence in carrying out surgery of the present kind, (specifically Scott LJ in Mahon v Osborne; MacDonald v Pottinger; probably Innes CJ and Wessels JA in Van Wyk v Lewis and MacKinnon LJ in Mahon v Osborne): perhaps it depends on the nature of the surgery and what happens to the patient, and on there being some evidence of the circumstances of the surgery. It is not necessary to take that aspect further in the present case. The cases show that, at least for surgery involving a team in circumstances such as that of the surgery upon the respondent, there may be what I have called divided responsibility so that all the maxim may support is that one of the team was negligent (specifically Scott and MacKinnon LJJ in Mahon v Osborne and MacDonald v Pottinger; cf Goddard LJ in Mahon v Osborne and Kotzé JA in Van Wyk v Lewis). And the cases show that, with the same possible qualification, once there is evidence to do with the performance of the surgery the surgeon’s negligence must be found (or not found) from consideration of the evidence as a whole.

67    The respondent’s reliance on res ipsa loquitur in the present case was misplaced. Even if leaving a sponge in the respondent could be taken to indicate negligence by someone, which was itself doubtful, once there was an issue of personal negligence or negligence by the theatre staff it did not mean that the appellant was negligent. His personal negligence, a want of due care and skill in the performance of the surgery, had to be established on the evidence as a whole. The issue of personal negligence or negligence by the theatre staff was always in potential, and it was raised, if not before, by the appellant’s evidence. The appellant’s negligence had to be found (or not found) from consideration of the evidence as a whole. The admission of the report of Professor Tracy only emphasised that the respondent could gain no assistance from the maxim.

(b) Conduct of the surgery

68    Secondly, it was said that the appellant should have been found negligent in failing to keep a check on or count of surgical sponges, failing to remove the sponge, and (in a phrase translated from another area of discourse) failing to keep a proper lookout. The respondent submitted that “as the master of ceremonies”, the surgeon carrying out the operation and using the sponges, the appellant had “a duty to check on or count the surgical sponges and a duty to remove all sponges from the plaintiff’s abdomen”.

69    The cases to which I have referred make plain that such absolute duties should not be accepted. The question was whether the appellant had failed to exercise due care and skill, the court being informed in that respect by evidence of the practice of surgeons and in particular of reliance on the count of the theatre staff once the surgeon had felt for sponges within the abdominal cavity. In Van Wyk v Lewis, MacDonald v Pottinger and Karderas v Clow in particular the surgeon was found to have acted without negligence even though a foreign body was left in the abdominal cavity, and in Mahon v Osborne the majority (and even Goddard LJ in dissent) contemplated the same result. The reasoning, in short, was that there was what I have called divided responsibility and the surgeon was entitled to rely on the theatre staff doing that for which they were responsible: see paras 35, 37, 39-41, 49, 51, 52-54, 60-61 and 63 above. Although in different contexts, in Ingram v Fitzgerald and McFadyen v Harvie the surgeon was found on similar reasoning to have acted without negligence: see paras 43-45 and 56-7 above.

70    The appellant was under a duty to exercise reasonable skill and care in carrying out the surgery, including in relation to removal of sponges. On the evidence as a whole, did he fail to exercise due care and skill? On his own evidence, he felt for sponges within the abdominal cavity and, as a back-up, twice sought and received the theatre sister’s count of sponges. On the evidence of Professor Tracy, the exercise of reasonable skill and care was consistent with a sponge nonetheless remaining in the abdominal cavity. That was why the theatre sister kept a count, and was twice asked whether the count was satisfactory. His Honour clearly accepted, from the appellant’s evidence of his practice, that the appellant had explored the abdominal cavity and checked it for any sponges, and must have concluded (as he was entitled to do) that the appellant had done so carefully. He plainly enough also accepted, based on the appellant’s evidence and perhaps the nurse’s record, that the appellant had asked whether the count was satisfactory, and had been told that it was. This was in accordance with the practice of surgeons, following the “elaborate ritual” described by Professor Tracy. No reason has been shown to overturn the finding that the appellant was not negligent in the conduct of the surgery.

(c) Warning.

71    Thirdly, it was said that the appellant should have been found negligent in failing to warn the respondent of the possibility of a sponge being left inside her.

72    None of the evidence suggested that the exercise of reasonable care and skill required, even involved, that she be warned. Rogers v Whitaker (1992) 175 CLR 479 at 482 shows that the content of a medical practitioner’s duty of care can include acquainting the patient with a risk of a procedure, but that does not mean that the medical practitioner must warn of the consequences if the medical practitioner is negligent. It is unnecessary to take the matter further, since his Honour expressly found that he was not satisfied that, if an appropriate explanation of the risk of a sponge being left inside the respondent had been given, the respondent would not have undergone the surgery. There is no reason to overturn his Honour’s finding, particularly when made against the respondent’s evidence of how she would have reacted to the warning “couched in bald terms”. With respect, his Honour’s finding was all but inevitable.

A non-delegable duty of care?

73    It was common ground that the theatre staff were not the servants or agents of the appellant. They were employees of the hospital. In the absence of personal negligence, the finding of liability depended on the appellant owing a non-delegable duty of care to the respondent such that he was nonetheless liable for the failure of the theatre staff to keep proper count of the sponges used in the surgery. The trial judge referred to liability for “the negligent act of leaving a sponge in the Plaintiff’s abdominal cavity during the course of surgery which he was performing”, holding the appellant liable for the act even though the negligence was that of the theatre staff. For the reasons which follow, in my opinion, this misapprehended the extent of the appellant’s liability.

74    The question of a non-delegable duty of care has arisen where a person owing a duty of care has delegated performance to another person. A person owing a duty of care may generally fulfil it by exercising reasonable care in entrusting performance to a competent third party. But in some circumstances the person owing the duty of care can not fulfil it in that way, and is liable if the third party does not exercise due care. In such circumstances, it is said that the duty of care is non-delegable.

75    The language can mislead. In both situations the duty of care is owed by the first person, and the duty of care is not delegated. The performance can be and is delegated. The effect of a non-delegable duty of care is that the person owing the duty of care is under a more stringent duty of care, a duty of care which can not be fulfilled by exercising reasonable care in entrusting performance to a competent third party. The duty of care requires that the person ensure that the third party exercises reasonable care, in the sense that the person is liable if the third party does not exercise reasonable care.

76    So in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Brennan CJ said (at 330-331) -

“However, if the defendant is under a personal duty of care owed to the plaintiff and engages an independent contractor to discharge it, a negligent failure by the independent contractor to discharge the duty leaves the defendant liable for its breach. The defendant's liability is not a vicarious liability for the independent contractor's negligence but liability for the defendant's failure to discharge his own duty [cf Voli v Inglewood Shire Council (1963) 110 CLR 74 at 95]. The duty in such a case is often called a ‘non-delegable duty’.

In principle, no duty owed by A to B can be delegated to C. If it were otherwise, the mere delegation would discharge A's duty to B. The difference between a duty and its discharge appears clearly in the speech of Lord Blackburn in Hughes v Percival [(1883) 8 App Cas 443 at 446] where, in reference to the duty owed by the defendant to his neighbour in making use of the party-wall between them, his Lordship said:

‘But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff's wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled.’

In Kondis v State Transport Authority [(1984) 154 CLR 672 at 683], in the course of reviewing earlier cases, Mason J observed:

‘On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor.’

Although the duty is personal to the defendant, the term ‘non-delegable’ does not mean that the defendant cannot get another to discharge the duty. As Lord Hailsham of St Marylebone said in McDermid v Nash Dredging Ltd [(1987) AC 906 at 910] in reference to an employer's duty to his employee, ‘non-delegable’ means ‘only that the employer cannot escape liability if the duty has been delegated and then not properly performed’.” (footnote references added)

77    Where the person owing the duty of care must ensure that the third party exercises reasonable care, and is liable if the third party does not do so, it can be seen why the non-delegable duty of care has been described as a disguised form of vicarious liability (Fleming, Law of Torts, 9th ed, p 434) and even as a logical fraud (Williams, “Liability for Independent Contractors”, (1956) Cam LJ 180 at 193). The person who owes the non-delegable duty of care may be liable without fault, whether personal or of a servant or agent. Although conceptually the breach of duty will be a breach of that person’s duty of care, the so-called duty of care in truth is not a duty to take care but a mechanism for responsibility for someone else’s failure to take care. The concept of a non-delegable duty of care has nonetheless been recognised for over a century (see Pickard v Smith (1861) 10 CB (NS) 470; 142 ER 535; Dalton v Angus (1881) 6 App Cas 740), and is thoroughly established in the law including in the decisions of the High Court. Indeed, it extends to liability for the failure to take care of third parties who are not independent contractors in the traditional sense (eg The Commonwealth v Introvigne (1982) 150 CLR 258).

78    Categories of non-delegable duties of care have been established, and a general description of the circumstances in which a duty of care will be non-delegable has been attempted. In Kondis v State Transport Authority (1984) 154 CLR 672, after discussion of the cases and in a judgment with which Deane and Dawson JJ agreed, Mason J said (at 687) -

“However, when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. As I said in Introvigne [ The Commonwealth v Introvigne (1982) 150 CLR 258 at 271]:

‘... the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others ...’.

That statement should be expanded by adding a reference to safeguarding or protecting the property of other persons, a matter which did not present itself for consideration in Introvigne .

The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v. Easton [(1878) 4 VLR 283] the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. As we have seen, the personal duty which has been recognised in the other cases which I have discussed, such as Dalton v. Angus [(1881) 6 App Cas 740], may rest on rather different foundations which have no relevance for the present case.

The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed. (footnote references added)

79    This was taken up in the joint judgment of Mason CJ and Deane, Dawson, Toohey and Gaudron JJ in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-551. Their Honours said -

“It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and ‘more stringent’ kind, namely a ‘duty to ensure that reasonable care is taken’ [see (1984) 154 CLR 672 at 686]. Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken. One of the classic statements of the scope of such a duty of care remains that of Lord Blackburn in Hughes v. Percival [(1883) 8 App Cas 443 at 446]:

‘ … that duty went as far as to require [the defendant] to see that reasonable skill and care were exercised in those operations ... If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself ... but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled.’
In Kondis v. State Transport Authority [(1984) 154 CLR, at 679-687; and see also Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR at 44, per Wilson and Dawson JJ], in a judgment with which Deane J and Dawson J agreed, Mason J identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common ‘element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken' is that 'the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised’ [ Kondis v State Transport Authority (1984) 154 CLR at 687; see also, Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR at 31, 44-46]. It will be convenient to refer to that common element as ‘the central element of control'. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person [ The Commonwealth v Introvigne (1982) 150 CLR 258 at 271, per Mason J.]” (footnote references added)

80    In that case it was held that the rule in Rylands v Fletcher should be absorbed into the principles of negligence. It was said that the relationship between a plaintiff and a defendant in circumstances which would prima facie attract the rule in Rylands v Fletcher “is characterised by such a central element of control and by such special dependence and vulnerability”, and the relationship was added to the categories of case in which the duty of care is non-delegable, a duty to ensure that care is taken. The reasoning illustrates that it is a question of the content of the duty of care: it was that where the rule in Rylands v Fletcher is attracted, the standard of reasonable care might involve a degree of diligence so stringent as to amount practically to a guarantee of safety (at 554); so circumstances attracting the rule in Rylands v Fletcher will give rise to a non-delegable duty of care, and principles of negligence will suffice (at 555).

81    The established categories, and Mason J’s explanation of the basis on which non-delegable duties of care may be found, were repeated in Northern Sandblasting Pty Ltd v Harris (see per Brennan CJ at 332; per Dawson J at 344-5; per Toohey J at 350-1; per Gaudron J at 361; per McHugh J at 368; and per Kirby J at 395). One of the issues was whether a landlord owed a non-delegable duty of care to its tenant’s child, such that it was liable for the negligence of its electrical contractor. The court was divided. Five judges declined to find a non-delegable duty of care. Two judges found a non-delegable duty of care. The judgments reveal a range of considerations thought relevant to a possible new category of non-delegable duty, and that the statements of Mason J in Kondis v State Transport Authority about why the special duty arises, and the later statements about control, relationship, dependence and vulnerability, provide no more than general guidance.

82    There is, however, an anterior question to the question whether a duty of care is non-delegable. In Northern Sandblasting Pty Ltd v Harris Brennan CJ said (at 331) that the problem “is not so much to classify a duty as delegable or non-delegable as to identify the content of the duty”. That is one question: when will the content of the duty be such that the person owing the duty of care must ensure that the third party exercises reasonable care in place of that person, so that he is liable if the third party does not do so? The inquiry takes a duty of care already owed and asks whether it has that content. Hence the anterior question, namely, what is the scope of the duty of care already owed. If the defendant does not owe a duty of care to the plaintiff at all, a non-delegable duty of care can not be found (see Hollis v Vabu Pty Ltd (1999) NSWCA 334 at paras 26-33). And it follows that the care which the defendant must ensure that the third party exercises can not be greater in scope than would have been required of the defendant if the defendant had been fulfilling the duty of care.

83    One of the established categories is hospital and patient, now brought within Mason J’s explanation of the basis on which non-delegable duties of care may be found. In the passage from Kondis v State Transport Authority at 687 earlier set out Mason J said that the hospital undertakes the care, supervision and control of patients who are in special need of care, and in Northern Sandblasting Pty Ltd v Harris Gaudron J said (at 361) -

“It is now recognised that relationships which give rise to a special non-delegable duty to ensure that care is taken are marked by the central features of control, on the one hand, and vulnerability, on the other [see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-551]. The relationship between a hospital and patient [see Gold v Essex County Council (1942) 2 KB 293 at 304, per Lord Greene MR; at 305, per MacKinnon LJ; at 309, per Goddard LJ; Cassidy v Ministry of Health (1951) 2 KB 343 at 351, per Somervell LJ; at 358, per Singleton LJ; at 365, per Denning LJ; Roe v Minister of Health (1954) 2 QB 66 at 82, per Denning LJ; at 91, per Morris LJ; Toronto General Hospital v Matthews (1972) SCR 435; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 603-605, per Samuels JA. See also Kondis v State Transport Authority (1984) 124 CLR 672 at 685-686, per Mason J] and employer and employee … are examples”. (footnote references added)

84    A more specific indication of the basis on which a hospital owes a non-delegable duty of care to its patient can be found in the earlier statement of Mason J in Kondis v State Transport Authority (at 686) -

“The liability of a hospital arises out of its undertaking an obligation to treat its patient, an obligation which carries with it a duty to use reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the obligation on its behalf acts without due care … . Accordingly, the duty is one the performance of which cannot be delegated, not even to a properly qualified doctor or surgeon under a contract for services …” (citations omitted)

85    In Albrighton v Royal Prince Alfred Hospital the patient entered the hospital for treatment to correct a spinal deformity. The treatment involved halo-pelvic traction. The surgery for the traction was carried out by an orthopaedic surgeon, at whose directions the traction was then applied. There was a risk of damage to the spinal cord from the treatment, and a neurosurgeon provided a second opinion to the orthopaedic surgeon before traction was applied. The two surgeons held appointments with the hospital as honorary medical officers. The traction did bring damage to the spinal cord, and the patient became a paraplegic. She sued the hospital and the two surgeons.

86    The patient failed at first instance against each of the defendants. On appeal, it was held inter alia that there was evidence fit to go to the jury of negligence on the part of the surgeons, that there was also evidence on which the jury could find that their relationships with the hospital were master/servant relationships, and that there was also evidence on which the jury could conclude that the hospital was “in breach of a duty of care which it owed directly to the plaintiff and of which it could not divert itself by delegation” (at 561).

87    As to this last matter, Reynolds JA, with whom Hope and Hutley JJA relevantly agreed, said (at 561) that -

“ … in any case where it is sought to establish the existence of a duty, the relationship between the parties must be determined as a question of fact; and where a hospital, or a nursing home, or an infirmary, or any other type of medical institution is involved, it is not enough merely to speak of the duty owed by any hospital to a patient.
This statement, which seems obvious enough, is stressed in the judgment of Morris LJ in Roe v Minister of Health [(1954) 2 QB 66 at 89] where he says: ‘A hospital might assume the obligation of nursing: it might on the other hand merely assume the obligation of providing a skilful nurse. But the question as to what obligation a hospital has assumed becomes, as it seems to me, ultimately a question of fact to be decided having regard to the particular circumstances of each particular case: the ascertainment of the fact may require in some cases inference or deduction from proved or known facts.’
The evidence in the present case is capable of supporting a view that the appellant was a patient of an institution which undertook to render to her complete medical services through its staff, including surgeons, consultants, an anaesthetist, a radiologist, a physiotherapist, pathologists and various other persons necessary to provide that complete medical care and all chosen, not by her, but by the institution.”

After referring to certain evidence, his Honour continued (at 561-2) -

“The totality of this evidence is capable of making a case which provides a basis for a finding that the hospital owed a duty of care directly to the appellant which it could not fulfil merely by delegation to a person who could not properly be described as its servant. The hospital, by admitting the appellant, could be regarded as undertaking that it would take reasonable care to provide for all her medical needs; and, whatever legal duties were imposed upon those who treated, diagnosed or cared for her needs from time to time, there was an overriding and continuing duty upon the hospital as an organisation. It was not a mere custodial institution designed to provide a place where medical personnel could meet and treat persons lodged there, as it might have been regarded in years long since gone by.”

88    Important to what is now summarised as control and vulnerability is the hospital’s undertaking to fulfil the patient’s medical needs. If the undertaking is to be fulfilled by independent contractors to the hospital, or even (as Albrighton v Royal Prince Alfred Hospital shows) by honorary medical officers who are not independent contractors in the normal understanding of those words but have arrangements for the use of the hospital’s facilities, the hospital is to be liable if due care is not used. No doubt the patient is usually specially dependent or vulnerable in that the patient has no relevant expertise and, rather like the employee, must put up with whatever the hospital subjects him to in fulfilling its undertaking, and perhaps it is thought that, by its arrangements, the hospital has ultimate control over what the patient is subjected to even though it does not control how the medical officers do their work. Just how control and vulnerability are present and create a special duty has not been explained, but the category is entrenched. The policy has been found in the words of Lord Denning in Cassidy v Minister of Health (1951) 2 KB 343 at 365, that all the patient knew -

“ … was that he was treated in the hospital by people whom the hospital authorities appointed; and the hospital authorities must be answerable for the way in which he was treated”.

89    The hospital’s undertaking to fulfil the patient’s medical needs directs attention to what in the particular case the hospital undertook. If the undertaking went to less than the patient’s needs, the non-delegable duty of care will be correspondingly less in scope. If the undertaking did not extend to provision of the surgeon’s services, and the surgeon (not being a servant or agent of the hospital) was, brought in by the patient, it is unlikely that the hospital will be liable for the negligence of the surgeon.

90    In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 the plaintiff was injured in the course of an operation at a hospital by the negligence of an honorary consulting surgeon. She sued the surgeon and the hospital. The claim against the surgeon was settled. By majority (Samuels and Meagher JJA, Kirby P dissenting) it was held that the hospital was neither vicariously liable for the surgeon’s negligence nor in breach of a non-delegable duty of care. The reasons of the majority are to be found in the judgment of Samuels JA, with whom Meagher JA agreed.

91    Relevantly to a non-delegable duty of care, his Honour first considered the trilogy of English cases on the extent of a hospital’s duty of care to its patients (Gold v Essex County Council (1942) 2 KB 293; Cassidy v Ministry of Health (1951) 2 KB 343; Roe v Minister of Health (1954) 2 QB 66) and Albrighton v Royal Prince Alfred Hospital. His Honour cited from the passage in the judgment of Reynolds JA in that case at 561-562 set out above.

92    By reference to a passage from the judgment of Houlden JA in Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513 at 581, his Honour then distinguished between a hospital functioning as a place where medical care facilities were provided for the use of a physician and his patient and a hospital functioning as a place where a person in need of treatment went to obtain treatment. In the former case the use of the hospital was made possible by an arrangement between the hospital and the physician by which the physician was granted hospital privileges, and the hospital was not responsible for the negligence of the physician. In the latter case the role of the hospital was that of an institution where medical treatment was made available to those who required it, which his Honour observed was the situation in Albrighton v Royal Prince Alfred Hospital.

93    His Honour then said that he must consider when, and to what extent, the decision of the High Court in Kondis v State Transport Authority compelled “a particular solution of the problem”, describing the case as authoritatively determining the nature and scope of non delegable duties in tort. He referred to what Mason J had said in that case, both generally as to when a “special duty” arises and specifically as to the established category of hospital and patient, but noted (at 604) that what Mason J said had to be read subject to the limitations to be found in the earlier cases -

“ … so that a hospital is bound to ensure that reasonable care issued [sic: is used] in providing the treatment which it undertakes to carry out; but that duty does not extend to treatment which is performed by a doctor pursuant to a direct engagement with the patient, and not on behalf of the hospital.”

94    His Honour then said (at 604-6) -

“In my opinion therefore while proof of the relationship of hospital and "patient" will generate a special duty of some kind, closer scrutiny of the facts (cf the analysis proposed by Mason J in Stevens v Brodribb Sawmilling ) is necessary in order to establish its scope. It is a question of what medical services the hospital has undertaken to supply. In a case such as Albrighton where the patient went directly to the hospital for advice and treatment a special duty will arise and may well embrace the provision of the "complete medical services" which Reynolds JA (at 561) thought it open to conclude that the hospital had undertaken to render, and that duty arose as soon as the plaintiff resorted to the hospital's out-patients' clinic; it did not wait upon admission. In such a case the hospital, by accepting the patient, undertakes to make available all the therapeutic skill and devices which it is reasonably able to deploy. The patient's choice is determined by his or her decision to knock at the door of the defendant's hospital, as Lord Greene put it in Gold (at 302). If the hospital's response is to open the door and admit the patient to the benefits of the medical and surgical cornucopia within it remains responsible to ensure that whatever treatment or advice the horn disgorges is given with proper care; its duty cannot be divested by delegation.

But the evidence in a particular case may establish that the hospital's undertaking was of a more limited kind. As Morris LJ pointed out in Roe (at 89) and (at 91) the nature of the obligation which a hospital has assumed becomes ultimately a question of fact, a proposition which the Court of Appeal adopted in Albrighton. In the present case, however, it is quite clear that the appellant did not knock at the hospital's door in the sense contemplated by Lord Greene. It was not the hospital's door but the door of the late Dr Chambers' consulting rooms upon which she knocked, and it was that door which was opened to her and which admitted her to the treatment and advice upon which she thereafter principally relied. I do not think it can be doubted but that it was Dr Chambers and not the hospital to whom the appellant looked for medical care. The hospital, for reasons which I have already discussed and will not repeat, was merely the place in which surgical procedures which he had recommended and which the appellant had agreed to undergo were performed by Dr Chambers. The hospital in the present case was exactly what the hospital was not in Albrighton . To reverse Reynolds JA's words in that case (at 562) the hospital here was "a mere custodial institution designed to provide a place where medical personnel could ... treat persons lodged there ...". Of course the appellant stood in a "special protective relationship" to both the hospital and Dr Chambers, but in respect of different kinds of care. The appellant looked to Dr Chambers for surgical intervention, and to the hospital for nursing care and perhaps the provision of other medical treatment. In rendering that care and treatment the hospital was no doubt under a non-delegable duty which might have been of relevance in certain circumstances. But in the event no question arises concerning matters of that sort.
My conclusion does not impose differential duties on a hospital. Following Kondis a hospital owes an independent non-delegable duty to ensure that the treatment it undertakes to provide is performed with reasonable care. The question in every case is the nature of that undertaking.
…
In my opinion, therefore, in the circumstances of this case the relationship between the appellant and the hospital was not such as to generate a special independent or non-delegable obligation on the part of the hospital to ensure that the operation was performed with proper care. That being so, the hospital would not have been responsible for any negligence of Dr Chambers.”

95    In Ellis v Wallsend District Hospital the scope of the hospital's duty of care, found in what the hospital had undertaken, did not include provision of the surgeon’s services: the hospital was merely the place where the surgeon’s services were provided. The reason why the hospital did not owe a “special independent or non-delegable obligation on the part of the hospital to ensure that the operation was performed with proper care” (see the conclusion of the passage last set out) was not that the hospital’s duty of care was “delegable”, but that its non-delegable duty of care did not extend to the performance of the surgery with due skill and care.

96    It is necessary first to identify the scope of the hospital’s duty of care in the hospital/patient relationship because of the different roles of those involved in providing medical and associated services to the patient. If the hospital’s undertaking extends to provision of the surgeon’s services, the hospital must ensure that the surgeon exercises reasonable care in its place. But if the undertaking does not extend to provision of the surgeon’s services, categorising the hospital’s duty of care as non-delegable will not make the hospital liable if the surgeon (not being a servant or agent of the hospital) is negligent.

97    The same necessity arises when considering a surgeon’s duty of care to a patient, because the surgeon will commonly be one member only of a team attending to the patient and those involved in providing medical and associated services to the patient have different roles: see Van Wyk v Lewis and the other cases considered above.

98    In the present case, therefore, the initial inquiry is into the scope of the duty of care owed by the appellant to the respondent: what medical services did he undertake to provide? Only when that has been ascertained should it be asked whether the duty of care was non-delegable, that is, whether the appellant was unable to fulfil his duty of care in providing those medical services by exercising reasonable care in entrusting performance to a competent third party, and is liable if the third party did not exercise due care. The scope of the duty of care will be largely determined by the facts, but against the background of what I have called divided responsibility in surgery involving a team.

99    The evidence going directly to the extent of the duty of care was scanty. The appellant “made arrangements” for the respondent to enter the hospital: this was not further explained. He nominated the hospital. A “doctor’s admission sheet” recorded a request by the appellant to admit the respondent and the respondent’s consent to the procedures of total hysterectomy and colposuspension. So far as appears, nothing was said to the respondent about the manner in which the surgery would be performed. What relationship, if any, the appellant had with the hospital did not appear, although it might be inferred that there was some kind of arrangement between the appellant and the hospital under which he could use its theatre.

100    Going indirectly to the extent of the duty of care was the appellant’s evidence of practice and Professor Tracy’s evidence of the “elaborate ritual”, both establishing a normal procedure by which the surgeon manually explored the abdominal cavity but otherwise relied on the count kept by the theatre staff. It must have been understood that the surgery would be carried out in the hospital’s theatre with the involvement of an anaesthetist and theatre staff. As between the appellant and the respondent it must have been implicit that the surgery would be carried out in accordance with the normal procedure, and so with the different roles of those involved in the surgery carried out on the respondent.

101    I do not think it can be said that the appellant undertook the provision to the respondent of “complete medical services” in a situation akin to that in Albrighton v Royal Prince Alfred Hospital. He did not undertake the provision of nursing services before or after the operation; they were to be provided by the hospital. There was nothing to suggest that he undertook the provision of the services of the anaesthetist. He did not undertake the provision of the services of the theatre staff, who were also to be provided by the hospital. He undertook the provision of his own surgical services, and there was nothing to indicate that he was to provide his surgical services otherwise than as one member of a team, the other members being the anaesthetist and the hospital staff, and in accordance with the normal procedure.

102    There is no doubt that in providing his surgical services the appellant owed a duty of care to the respondent. As a general statement, of course, he owed a “single comprehensive duty covering all the ways in which a doctor is called on to exercise his skill and judgment” (Rogers v Whitaker at 483), but it is necessary to “give content to the duty in the given case” (ibid), in determining the extent of the duty of care before venturing upon the question of a non-delegable duty of care. If it be assumed that the appellant’s duty of care was a non-delegable duty of care, he could not depute that which he had to do, and do with reasonable care and skill, to a third party. On the evidence in this case, he was required to exercise reasonable care and skill in feeling for sponges in the abdominal cavity and asking whether the sponge count was satisfactory. But he was entitled to rely on the theatre staff in the customary way, and on the evidence in this case I do not think that his duty of care relevantly extended beyond feeling for sponges in the abdominal cavity and asking whether the sponge count was satisfactory. It follows that in my opinion the appellant was not in breach of a non-delegable duty of care by reason of the negligence of the theatre staff.

103    This conclusion is unsurprising in the light of the line of cases, from Van Wyk v Lewis onwards, to which I have referred. In the manner in which surgery of the kind undergone by the respondent is performed, the patient receives the attention of a team: the surgeon, the anaesthetist, and theatre staff. There is divided responsibility. The surgeon can be regarded, in the phrase used by the respondent’s counsel, as the master of ceremonies, but he is nonetheless a member of a team and reliant on the due discharge of their responsibilities by the other members of the team. He should be able to concentrate on his own skilled task without shouldering the responsibilities of the other members of the team.

104    In the circumstances of the present case reliance on the count of the theatre staff, where the reliance is in conformity with accepted procedures and a proper exercise of care and skill, is not delegation for the purposes of the principles relevant to a non-delegable duty of care. While some of the judgments in the cases were in terms of vicarious liability, the outcomes and the reasoning were not dependent on that concept. Particular reference may be made to the judgments in Van Wyk v Lewis (paras 36, 37, 39-41 above), and part of the passage earlier set out from Ingram v Fitzgerald (para 44 above) bears repeating -

“The theatre sister and the assistant nurses are supplied by the private hospital where the operation is performed, and they have thus independent duties to perform. In the circumstances of this case, we think the proper inference is that the defendant did not undertake personally to do all the work necessarily involved in the operation. He must rather have undertaken to perform the operation in the hospital selected, and with the appliances there available, and with the assistance and co-operation of qualified, competent, and experienced nurses attached thereto. It is true that he was in supreme control, and that he had the right and the duty to intervene and could do so. But those subject to that control were skilled collaborators with independent duties, and he did not find it necessary, nor would he expect to find it necessary to intervene to direct the manner in which they discharged those duties. They were not his delegates in the sense that they were there to do work which he had contracted to do or to have done. They were, for general purposes the servants of the hospital, but in the theatre they were subject to his directions. In no sense, then, is it a proper inference from the facts that the doctor undertook personally to carry out that part of an operation which, in practice, falls to the nurses. There was no delegation, then, in the ordinary sense; for he did not intend and could not be taken to have assumed, to do their work or to have it done.”
Damages

105    It follows that the appellant should not have been found liable to the respondent, and the appeal must be upheld and the cross-appeal dismissed so far as concerned with liability. It is unnecessary to deal with damages.

Orders

106    I propose the following orders -

(1) Appeal allowed and cross-appeal dismissed;

(2) Verdict and judgment for the plaintiff and order that defendant pay the plaintiff’s costs set aside, and in lieu thereof verdict for the defendant and order that the plaintiff pay the defendant’s costs;

(3) Respondent to pay the appellant’s costs of the appeal but to have a certificate under the Suitors Fund Act if qualified.
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