Non-delegable duties and institutional liability for the negligence of hospital staff: fair, just and reasonable?

This paper examines the nature of the non-delegable duty of care owed by hospitals towards their patients. While its status was uncertain prior to 2013 when it was supported only by minority court decisions and obiter dicta, the hospital non-delegable duty now forms one of the building blocks for a general non-delegable duty owed by institutions to those in their care or custody, as recognised by the Supreme Court in Woodland v Essex CC [2013] UKSC 66, [2014] AC 537. In outlining the development of the hospital non-delegable duty of care, this paper will examine its legal basis and when it will be fair, just and reasonable to impose liability. With reference to the work of Keith Stanton, it will examine whether reliance on terminology such as ‘assumption of responsibility’ and ‘fair, just and reasonable’ provides the guidance needed to enable the courts to apply effectively the Woodland five-stage test or whether these tests merely provide a ‘shroud’ for the policy reasoning of the court.