Do hospitals owe a so-called 'non-delegable' duty of care to their patients?

Abstract

It is not uncommon for the duty of care owed by a hospital to its patients to be described as 'non-delegable'. Use of this label suggests that a hospital may be held strictly liable to a patient for the wrongdoing of a third party beyond the circumstances in which vicarious liability might be imposed. To date, no higher court has used the label to impose such liability. Notwithstanding, it was assumed by Lord Sumption in Woodland v Swimming Teachers Association that the duty of care owed by a hospital to a patient could be so described when formulating his test for determining the existence of a 'non-delegable duty of care'. This article challenges that assumption and, in turn, the veracity of the test devised by Lord Sumption.