Interlocutory decision: Vicarious liability

Hassan v Calvary Private Hospital Health Care Canberra Ltd t/a Calvary John James Hospital [2018] ACTSC 53 dealt with a number of interlocutory applications, in a claim which arose from surgical procedures  – the insertion of a sling, anterior mesh, posterior mesh and rectal mesh.

One of the applications was that made by the first defendant private hospital for summary dismissal of the plaintiff’s claim alleging that the hospital was vicariously liable for the acts of two medical practitioners.

The court refused the application at [33] – [37],  saying:

  1. As stated in Ellis at 592D-592E, the question whether a person is the employee of another is a question of fact and one needs to look to all the incidents of the relationship disclosed by the evidence in the instant case. The majority view formed in that case was reached after careful and detailed consideration of all the evidence before the Court following a substantive hearing. The fact was not determined in a summary proceeding on the basis of selected documents put before the Court.
  1. I am not satisfied that the totality of the evidence is before the Court that would enable an assessment of all the incidents or features of the relationship between each of the doctors and the Hospital so as to form a view about whether any doctor was properly described as an employee, let alone such as to find that the doctors were unquestionably independent contractors.
  1. In particular, the evidence of Mr Free was that each of the doctors was an ‘Accredited Practitioner’ of the Hospital.  The by-laws of the Hospital in evidence that applied at the time of the 2010 treatment define an ‘Accredited Practitioner’ expressly to include a medical practitioner ‘appointed or employed by the Hospital’.
  1. Further, cl 23(a) of those by-laws was relied upon by the first defendant as making it clear that appointment as an accredited practitioner does not equate to the doctor entering into a contract of employment.  However, cl 23(a) does not support that submission.  It provides:

Appointment of an Accredited Practitioner shall be conditional on the practitioner:

Complying with the terms and conditions of his or her contract of employment (and/or applicable award or agreement)…

  1. That could well include a contract of employment with the Hospital.  The onus on this application being on the first defendant, I am not satisfied that the documents in evidence are conclusive on the issue, and even if they were, I would not have been satisfied that they represented the totality of the indicia to which the Court would have regard in forming a view on the question of the employment relationship between each of the three doctors and the first defendant.

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