• In the case of Cassidy v Ministry of Health 1951 2 kb 343, it was found that a hospital authority is liable for the negligence of doctors and surgeons employed by the authority under a contract of service arising in the course of the performance of their professional duties.

Facts of the Case

  • C entered a hospital for an operation on his left hand, which necessitated post-operational treatment.
  • While undergoing that treatment he was under the case of the surgeon who performed the operation who was a whole time assistant medical officer of the hospital, the house surgeon and members of the nursing staff of the hospital, all of whom were employed under contracts of service.
  • At the end of his treatment, it was found that his hand had been rendered useless.
  • The action had originally been brought against the Liverpool Corporation as owning and controlling the hospital, but later by virtue of s.6 the National Health Service Act 1946, the Ministry of Health were substituted as defendants.
  • The trail judge dismissed his action for damages for negligent treatment which he brough against the hospital on the grounds that he had failed to prove any negligence
  • C appealed.

Issues in Cassidy v Ministry of Health 1951 2 KB 343

  • This issues in this case relate to who had the onus to prove negligence or disprove negligence.

Held by Court of Appeal

  • It was held that the doctrine of res ipsa loquitur applied with the onus on the hospital authority to prove that there had been no negligence on its part or on the part of anyone for whose acts of omissions it was liable, and that onus had not been discharged.

Denning LJ

  • It was found that where a person himself is under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under contract of service or to an independent contractor under a contract for services.

“I am quite clearly of opinion that that raises a prima facie case against the hospital authorities: see per I am quite clearly of opinion that that raises a prima facie case against the hospital authorities: see per Goddard, L.J., in Mahon v. Osborne (82). They have nowhere explained how it could happen without negligence. They have busied themselves in saying that this or that member of their staff was not negligent. But they have called not a single person to say that the injuries were consistent with due care on the part of all members of their staff. They called some of the people who actually treated the man named Dr. Fahrni, Dr. Ronaldson and Sister Hall, each of whom protested that he was careful in his past; but they did not call any expert at all, to say that this might happen despite all care. They have not therefore displaced the prima facie case against them and are liable to damages to the plaintiff. I agree that the appeal should be allowed.” P.366

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