Hillyer v Governors of St Bartholomew's Hospital, [1909] 2 K.B.

820 (1909)

For educational use only

*820 Hillyer v The Governors of St. Bartholomew's Hospital
Mixed Judicial Consideration

Court
Court of Appeal

Judgment Date
23 July 1909

Report Citation
[1909] 2 K.B. 820

In the Court of Appeal

Cozens-Hardy M.R. , Farwell and Kennedy L.JJ.

1909 July 12, 13, 23

Negligence—Public Hospital—Liability of Governors—Operation—Injury to Patient—Hospital Staff—Relation of Hospital to

Patients.

The only duty undertaken by the governors of a public hospital towards a patient who is treated in the hospital is to use due
care and skill in selecting their medical staff. The relationship of master and servant does not exist between the governors and
the physicians and surgeons who give their services at the hospital, and the nurses and other attendants assisting at an operation
cease for the time being to be the servants of the governors, inasmuch as they take their orders during that period from the
operating surgeon alone and not from the hospital authorities.

The plaintiff brought an action against the governors of a hospital for damages for injuries alleged to have been caused to him
during an operation by the negligence of some member of the hospital staff:—

Held, that the action was not maintainable.

APPEAL from a verdict and judgment at a trial before Grantham J. and a special jury which raised the question of the liability
of the governors of a hospital for negligence in the treatment of a patient.

The action was brought by William Herbert Hillyer, a medical man, against “The Mayor, Commonalty, and Citizens of the City
of London (Governors of the House of the Poor commonly called St. Bartholomew's Hospital, near West Smithfield, of the
Foundation of King Henry the Eighth),” for damages for injuries from the defendants' negligence at their hospital.

The plaintiff's case was that on March 28, 1907, he entered St. Bartholomew's Hospital for the purpose of being medically
examined under an anæsthetic; that the examination was conducted by Mr. Charles Barrett Lockwood, a consulting surgeon
attached to the hospital; that for the purpose of the examination he was placed on an operating table in such a position that his
arms were allowed to hang over its sides; that his left arm was in contact with a hot water tin projecting from beneath the table,
and the inner upper part of it was burned, and that the *821 inner upper part of his right arm was bruised by the operator or some
other person pressing against it during the operation; and that the result of these injuries was traumatic neuritis and paralysis of
both arms, and he had ever since been unable to exercise his profession as a medical man. It appeared that the examination was
undertaken gratuitously, as the result of representations made by the plaintiff that after prolonged suffering from and treatment

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Hillyer v Governors of St Bartholomew's Hospital, [1909] 2 K.B. 820 (1909)

for sciatica he had come to the end of his resources. The defendants denied the alleged negligence and pleaded that if they owed
any duty to the plaintiff it was to exercise reasonable care in the selection of the hospital staff, in which duty they had not failed.

The plaintiff called none of the persons present at the operation as witnesses, and his case was mainly based on the defendants'
answers to interrogatories, the material ones being Nos. 5 and 6, which were as follows: 5. “That the persons who in the ordinary
course of their employment are servants or agents of the defendants and who assisted in the operation and placing the plaintiff
upon the operating table and in administering an anæsthetic to the plaintiff and in securing the plaintiff in position on the
operating table and in conducting the examination of the plaintiff were the following.” Three surgeons, an administrator of
anæsthetic, and three certificated nurses were then named; then “two of the hospital staff known as box carriers and attached
to the theatre, whose duty was to bring the plaintiff to the theatre and place him upon the operating table. As regards the part
which the above persons took in the examination of the plaintiff in the present case their respective duties were as follows:—(a)
The plaintiff was placed upon the operating table by the box carriers. (b) The acting sister had to see that he was placed properly
on the table, and that the part prepared for examination was uncovered, while the lest of his body was warmly and adequately
covered. She had to stand at the side of the surgeon and hand him such things as he might from time to time require. (c) The
examination of the plaintiff was carried out by the said Charles Barrett Lockwood, assisted by the said George Ernest Gask and
the said James Ernest Helme Roberts. (d) The house surgeon, *822 with the assistance of the nurses present, had to make such
alterations in the position of the plaintiff upon the operating table as the operator demanded. (e) The said George Herbert Colt
was responsible for the due administration of the necessary anæsthetic. (f) The said nurses present had further to comply with
the directions of the surgeons in charge as to the requirements of the moment during the course of the examination.”

“6. That the plaintiff in the course of the said examination was burned on the left arm by the displacement of a hot water can
in the course of undergoing the said examination under an anæsthetic.”

Grantham J. refused to put the question of negligence to the jury, holding that, even if there had been negligence, the operation
was under the control of the operating surgeon, for whose action it was admitted that the governors were not responsible; neither
would they be liable for the negligence of their staff, even if proved, and he therefore gave judgment for the defendants.

The plaintiff appealed.

J. B. Matthews , for the appellant. The refusal of the judge in the Court below to leave the case to the jury is sufficient ground
for a new trial. If the jury were satisfied that the injury to the plaintiff was caused by some negligence on the part of the hospital
staff, then the defendants are liable for the negligence of their staff. For the purposes of this appeal it is admitted that the position
of master and servant did not exist between the operating surgeon and the defendants, but the position of the staff is different.
The answer to interrogatory 6 admits the plaintiff's case; indeed it is a case of res ipsa loquitur, for the plaintiff's arm was not
injured before the operation. There must have been negligence on the part of some of those present at the operation, and unless
the defendants can make out as a matter of law that they are not responsible for the negligence of some member of their staff,
the plaintiff is entitled to a new trial and to have the question of negligence submitted to a jury.

The plaintiff, being under an anæsthetic at the time, can give *823 no evidence, but the injured arm is prima facie evidence
of negligence within Scott v. London Dock Co. 1 , Christie v. Griggs 2 , and Skinner v. London, Brighton, and South Coast
Ry. Co. 3 Where an inanimate patient, handled by eight people, meets with an injury, the injury is prima facie evidence against
them all; all are jointly and severally liable for the negligence, and it is no excuse for the master of these eight people to say
that the operating surgeon is responsible for the conduct of the operation and therefore they are not liable. The duty of keeping
the patient safely on the operating table was on the hospital staff who were present at the operation.

The cases which induced the judge to withdraw this action from the jury are Hall v. Lees 4 , Evans v. Liverpool Corporation 5
, and McDonald v. Massachusetts General Hospital . 6 But Hall v. Lees 7 turned entirely on the question whether the nurses
were the servants of the association; and Evans v. Liverpool Corporation 8 , though an authority that the operating surgeon
is not liable, does not deal with the liability of the rest of the staff. The position of the surgeons and physicians is well stated
in Glavin v. Rhode Island Hospital . 9 [Beven's Negligence in Law, 3rd ed. p. 1165, was also cited.] That the defendants are
liable for the negligence of their servants is clear: Foreman v. Mayor of Canterbury . 10

McCall, K.C., Norman Craig, K.C. , and H. Marks , for the respondents. This case is clearly covered by Evans v. Liverpool
Corporation . 11 No distinction can be made between the operating surgeon, the house surgeons, and the nurses, for the latter

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are not the servants of the defendants for the purposes of an operation conducted by the medical staff. A hospital which has
exercised due care in the selection of its agents is not liable for injury caused to a patient by their negligence: McDonald v.
Massachusetts General Hospital 12 ; Glavin v. Rhode Island Hospital 13 ; District of Auckland Hospital v. Lovett . 14 The
*824 plaintiff has not attempted to shew that the defendants have not used due care and skill in selecting their medical and
nursing staff, the only duty undertaken by a public hospital towards their patient.

Matthews in reply.

Cur. adv. vult.

July 23. COZENS-HARDY M.R.

I think the decision in this case is quite right, and the appeal must be dismissed for the reasons contained in the judgments of
Farwell L.J. and Kennedy L.J., which I have read.

FARWELL L.J.

read the following judgment:—In March, 1907, the plaintiff, who is a medical man and had recently returned from West Africa
in a bad state of health and without means, consulted Mr. Lockwood and by his advice entered St. Bartholomew's Hospital
as a non-paying patient for the purpose of being examined by Mr. Lockwood, who was a consulting surgeon attached to the
hospital. He was taken to the theatre in due course and placed under anæsthetic; when he recovered consciousness he found
that one arm had been bruised and the other burned on the inner upper part. Such bruising and burning were consistent with his
right arm having been pressed against the edge of the operating table and with his left arm having been allowed to hang down
and come in contact with the heating apparatus under the table, but there was no evidence that this was the case; the plaintiff
himself was unconscious, and he called none of the persons who were present at the operation. His only direct evidence was
the answer of the defendants to the sixth interrogatory, “that the plaintiff in the course of the said examination was burned on
the left arm by the displacement of a hot water can in the course of undergoing the said examination under anæsthetic.”

The persons who were present at this examination and their duties are set out in the answer to interrogatory 5. [His Lordship
read this, and continued:—] The plaintiff now sues the defendants, who are governors of the hospital under certain agreements
and statutes, for damages for negligence. Grantham J. held that if there was negligence they were not liable, and also *825
withdrew the case from the jury on the ground that there was no evidence of negligence.

It is now settled that a public body is liable for the negligence of its servants in the same way as private individuals would
be liable under similar circumstances, notwithstanding that it is acting in the performance of public duties, like a local board
of health, or of eleemosynary and charitable functions, like a public hospital. The extent to which their property can be made
liable to execution is another question and does not arise here. The first question then is, Were any of the persons present at
the examination servants of the defendants? It is, in my opinion, impossible to contend that Mr. Lockwood, the surgeon, or the
acting assistant surgeon, or the acting house surgeon, or the administrator of anæsthetic, or any of them, were servants in the
proper sense of the word; they are all professional men, employed by the defendants to exercise their profession to the best
of their abilities according to their own discretion; but in exercising it they are in no way under the orders or bound to obey
the directions of the defendants. The true relation of the parties is, in my opinion, well stated by the Chief Justice in Glavin
v. Rhode Island Hospital 15 , where the Chief Justice said: “Here the physicians or surgeons are selected by the corporation
or the trustees. But does it follow from this that they are the servants of the corporation? We think not. If A. out of charity
employs a physician to attend B., his sick neighbour, the physician does not become A.'s servant, and A., if he has been duly
careful in selecting him, will not be answerable to B. for his malpractice. The reason is that A. does not undertake to treat B.
through the agency of the physician, but only to procure for B. the services of the physician. The relation of master and servant
is not established between A. and the physician. And so there is no such relation between the corporation and the physicians
and surgeons who give their services at the hospital. It is true the corporation has power to dismiss them, but it has this power
not because they are its servants but because of its control of the hospital where their services are rendered. They would not
recognize the right of the *826 corporation, while retaining them, to direct them in their treatment of patients.” The only duty
undertaken by the defendants is to use due care and skill in selecting their medical staff, a duty similar to that undertaken by
trustees to their cestui que trust—a duty arising ex contractu: see Ex parte Adamson 16 , namely, to bring such skill and care to
bear on the affairs of their cestui que trust as the reasonable man of business brings to his own. It is not suggested that there is

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any negligent performance of this duty; indeed, so far as Mr. Lockwood is concerned, the plaintiff went to St. Bartholomew's
Hospital in order to be under his charge and to be examined by him. This is in accordance with Walton J.'s decision in Evans
v. Liverpool Corporation 17 , with which I entirely agree. The three nurses and the two carriers stand on a somewhat different
footing, and I will assume that they are the servants of the defendants. But although they are such servants for general purposes,
they are not so for the purposes of operations and examinations by the medical officers. If and so long as they are bound to
obey the orders of the defendants, it may well be that they are their servants, but as soon as the door of the theatre or operating
room has closed on them for the purposes of an operation (in which term I include examination by the surgeon) they cease to
be under the orders of the defendants, and are at the disposal and under the sole orders of the operating surgeon until the whole
operation has been completely finished; the surgeon is for the time being supreme, and the defendants cannot interfere with or
gainsay his orders. This is well understood, and is indeed essential to the success of operations; no surgeon would undertake the
responsibility of operations if his orders and directions were subject to the control of or interference by the governing body. The
nurses and carriers, therefore, assisting at an operation cease for the time being to be the servants of the defendants, inasmuch
as they take their orders during that period from the operating surgeon alone, and not from the hospital authorities.

The contract of the hospital is not to nurse during the operation, but to supply nurses and others, in whose selection they have
taken due care. The relation of the hospital to the patient *827 in respect of nurses and attendants supplied by the former for an
operation on the latter is the same as that of the Association of Nurses to the patient supplied by them with a nurse, as decided
by this Court in the case of Hall v. Lees . 18 I take the test applied by Lord Collins, then Master of the Rolls 19 : “They are
not put in his place to do an act which he intended to do for himself.” The nurses and attendants are not put in the place of the
hospital to do work which the governors of the hospital intended to do themselves, because they had not undertaken to operate
or assist in operating, but only to supply qualified persons to act as nurses and assistants under the control of the operating
surgeon. Let me test it by enlarging the case put by the American Chief Justice in Glavin v. Rhode Island Hospital . 20 Let
me suppose that the good Samaritan not only employs the surgeon, but takes the patient into his own house, and gives him the
services of his own servant, whom he believes to be a skilful nurse, in order to assist the surgeon in an operation: the same
reasoning would apply—there is no more undertaking by A. to assist the surgeon in the operation than there is to operate; the
undertaking is the same in both—to procure the services of surgeon and nurse reasonably believed by him to be competent. I
am therefore of opinion that the defendants are not liable at all to the plaintiff. But even if the nurses and carriers were persons
for whose negligence the defendants would be liable, the plaintiff would still fail, because it is clear that they are not liable for
the negligence of the surgeon. The plaintiff has to prove his case against the defendants, but he does not do so by shewing that
he has been injured by the negligence of A., B., C., and D., or of one of them, when the defendants are liable for the negligence
of C. and D. only, and not for that of A. and B. He must prove that the defendants are liable, and does not do so by shewing that
if C. and D. were the negligent persons they would be liable, but if it is A. and B., then they are not. He must prove affirmatively
that the negligence was that of the persons for whom the defendants are liable. I prefer not to express any opinion on *828 the
question whether the answer to the sixth interrogatory is sufficient evidence to call upon the defendants for an answer.

KENNEDY L.J.

In this case the evidence adduced at the trial on behalf of the plaintiff would, it appears to me, have been sufficient to call for
an answer from the defendants if the defendants could, in point of law, properly be held responsible to the plaintiff for injury
caused to him by negligence on the part of the surgeons and nurses engaged in the surgical examination to which the plaintiff
submitted in the hospital of which the defendants are the governors.

The defendants in their answers to interrogatories admitted that all those surgeons and nurses, as well as the anæsthetist and
the box carriers (who obviously may, for the purposes of this case, be omitted from consideration), were their servants or
agents, and that one arm of the plaintiff, whilst he was lying on the operating table and insensible through the administration
of anæsthetic, was burned by contact with a hot water tin which somehow got displaced during the examination. The plaintiff
gave some evidence of damage resulting from the burn. It appears to me that, subject always to the reservation I have stated in
respect of the nature of the defendants' legal responsibility for the negligent acts or omissions of their professional staff, there
was, apart from the statements which two of the surgeons, Mr. Gask and Mr. Roberts, made subsequently to the plaintiff, and
which were admitted in evidence without objection on the part of the defendants' counsel, a prima facie case on the issue of
negligence in the facts which I have briefly set forth. I think that so far the plaintiff might, in the circumstances, invoke the
application of the maxim res ipsa loquitur.

But the difficulty in the plaintiff's way on this appeal, which the learned counsel for the plaintiff has not, in my judgment, been
able to surmount in his able and ingenious argument, is this. The legal duty which the hospital authority undertakes towards a

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patient, to whom it gives the privilege of skilled surgical, medical, and nursing aid within its walls, is an inference of law from
the facts. In my opinion it is not the ordinary duty of a person who deals with another through his servants or *829 agents
and undertakes responsibility to that other person for damage resulting from any injury inflicted upon him by the negligence
of those servants or agents. In my view, the duty which the law implies in the relation of the hospital authority to a patient
and the corresponding liability are limited. The governors of a public hospital, by their admission of the patient to enjoy in the
hospital the gratuitous benefit of its care, do, I think, undertake that the patient whilst there shall be treated only by experts,
whether surgeons, physicians or nurses, of whose professional competence the governors have taken reasonable care to assure
themselves; and, further, that those experts shall have at their disposal, for the care and treatment of the patient, fit and proper
apparatus and appliances. But I see no ground for holding it to be a right legal inference from the circumstances of the relation
of hospital and patient that the hospital authority makes itself liable in damages, if members of its professional staff, of whose
competence there is no question, act negligently towards the patient in some matter of professional care or skill, or neglect to
use, or use negligently, in his treatment the apparatus or appliances which are at their disposal. It must be understood that I
am speaking only of the conduct of the hospital staff in matters of professional skill, in which the governors of the hospital
neither do nor could properly interfere either by rule or by supervision. It may well be, and for my part I should, as at present
advised, be prepared to hold, that the hospital authority is legally responsible to the patients for the due performance of their
servants within the hospital of their purely ministerial or administrative duties, such as, for example, attendances of nurses in
the wards, the summoning of medical aid in cases of emergency, the supply of proper food, and the like. The management of
a hospital ought to make and does make its own regulations in respect of such matters of routine, and it is, in my judgment,
legally responsible to the patients for their sufficiency, their propriety, and observance of them by the servants.

In the view which I have expressed in regard to the non-liability of the governors of a hospital for the negligence of the
professional staff in matters of professional care and skill, provided always that the authority has used reasonable care in *830
selecting a competent staff and proper apparatus and appliances, I am deciding in accordance with the judgment of my brother
Walton in the recent case of Evans v. Liverpool Corporation 21 and I entirely concur in the reasoning upon which that judgment
is based. With the American and New Zealand cases which were cited to us by the learned counsel on both sides I do not think
it necessary to deal. They are not in agreement; in one of them, McDonald v. Massachusetts General Hospital 22 , relied upon
by the defendants, the judgment appears to have been influenced by an English decision of Holliday v. St. Leonard, Shoreditch
23
, which has been overruled by the House of Lords in Mersey Docks Trustees v. Gibbs 24 : see per Blackburn J., Foreman
v. Mayor of Canterbury . 25

If the view of the limits of the liability of the present defendants as governors of St. Bartholomew's Hospital is correct, Grantham
J. was justified in stopping this case at the close of the plaintiff's evidence. The plaintiff had produced no evidence that the
defendants had been guilty of a breach of their duties towards the plaintiff—the duty of using reasonable care in selecting as
members of the staff persons who were competent, either as surgeons or as nurses, properly to perform their respective parts
in the surgical examination, and the duty to provide proper apparatus and appliances.

I prefer to base my judgment that this appeal ought to be dismissed upon this single ground, but I must not in saying this be
understood to hold, even if the protection to the hospital authority from liability for the negligence of their agents and servants in
matters of professional skill extends only to the case of Mr. Lockwood, that the plaintiff is necessarily extricated from difficulty.
That eminent surgeon, who was in charge of the examination, and must in reason and upon the evidence, so far as there is any, be
taken to have had the responsibility of controlling and directing the assistant surgeons and nurses in regard to the manipulation
of the plaintiff upon the operating table, and in regard to the movement and *831 disposition of the apparatus, was chosen by
the plaintiff himself; and I can find no evidence to prove that any one of the surgeons or nurses in attendance either disobeyed
or neglected any direction given by him.

Representation

Solicitors: Warren, Murton & Miller , for R. H. Rushworth, Amersham ; Wilde, Moore, Wigstone & Co.

Appeal dismissed. (W. C. D.)

Footnotes

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1 (1865) 3 H. & C. 596 .

2 (1809) 2 Camp. 79 .
3 (1850) 5 Ex. 787 .
4 [1904] 2 K. B. 602 .
5 [1906] 1 K. B. 160 .
6 (1876) 21 Amer. Rep. 529 .
7 [1904] 2 K. B. 602 .
8 [1906] 1 K. B. 160 .
9 (1879) 34 Amer. Rep. 675 .
10 (1871) L. R. 6 Q. B. 214 .
11 [1906] 1 K. B. 160 .
12 (1876) 21 Amer. Rep. 529 .
13 34 Amer. Rep. 675 , 679.
14 (1892) 10 N. Z. L. R. 597 .
15 34 Amer. Rep. 675 , 679.
16 (1878) 8 Ch. D. 807 , at p. 819.
17 [1906] 1 K. B. 160 .
18 [1904] 2 K. B. 602 .
19 [1904] 2 K. B. at p. 615 .
20 34 Amer. Rep. 679 .
21 [1906] 1 K. B. 160 .
22 21 Amer. Rep. 529 .
23 (1861) 11 C. B. (N.S.) 192 .
24 (1864) L. R. 1 H. L. 93 .
25 L. R. 6 Q. B. 214 , at p. 218.

(c) Incorporated Council of Law Reporting for England & Wales

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