• In the case of Farraj v Kings Healthcare NHS trust 2009 EWCA Civ 1203, it was held that a hospital did not owe a non-delegable duty of care regarding genetic testing which was sent to be cultured by a reputable independent cytogenetics laboratory.

Facts of the Case

  • The appellant (NHS Trust) appealed against a decision that it was liable in a wrongful birth case and the respondent parents (P) cross appealed.
  • When the wife was pregnant, she was advised to undergo DNA testing to detect whether the child would suffer from an inherited blood disorder which P were carriers of.
  • A chorionic villus samples was taken and sent to the trust’s London hospital.
  • After, it was sent to an independent specialist cytogenic laboratory (C) for foetal cells to be cultured. After, the sample was returned to the hospital for testing.
  • The test returned negative.
  • However, when the baby was born it was found to have the disorder.
  • As a result, P sued the trust and C. The judge held both defendants liable.
  • C was liable as it had doubts about the viability of the sample however did not communicate them to the hospital.
  • The failure of communication was negligent.
  • The trust was also liable because the hospital should have enquired whether the sample was a reliable source of material for the genetic testing.
  • Should the hospital of enquired, they would have been aware of C’s doubts and then asked for a further sample.
  • The judge held C two thirds liable and the trust one third liable.
  • The trust then appealed on liability, causation and apportionment and P cross appealed on the ground that even if the trust was not negligent it was liable for the negligence of C because the trust’s duty was nondelegable.

Issues in Farraj v Kings Healthcare NHS trust 2009 EWCA Civ 1203

  • Can the trust be under a duty to check the work of a competent independent contractor?

Held by Court of Appeal

  • Appeal allowed; cross appeal dismissed.

Dyson LJ

  • Held that the hospital was entitled to assume that the sample was satisfactory unless C informed them of the contrary.
  • The judge failed to make a finding to support the conclusion that, if the hospital had enquired of C, C’s doubts about the sample would have been so communicated.
  • The general rule was that where a person under a duty of care entrusted the performance of the duty to an apparently competent contractor, he was not under a duty to check the contractors work, being entitled to rely on its proper performance.
  • “As Mason J pointed out in Kondis, the concept of a personal non-delegable duty is a departure from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, namely a duty to ensure that reasonable care is taken. In my view, any departure from the general rule must be justified on policy grounds. If the position were to be otherwise, there is a danger that the general rule would become the exception rather than the rule. As I understand it, that is not our law” [93]