Published: Wed, 07 Mar 2018
Cassidy v Ministry of Health  2 KB 343
TORT – VICARIOUS LIABILITY – EMPLOYER’S RELATIONSHIP WITH THE PRIMARY TORTFEASOR
The claimant was a patient at a hospital run by the defendant who required routine treatment to set the bones in his wrist. Due to negligence on the part of one of the doctors, the operation caused his fingers to become stiff. The claimant sued the defendant in the tort of negligence on the basis of vicarious liability.
If negligence is proven against a primary tortfeasor, it is sometimes possible to hold their employer liable under the doctrine of vicarious liability. This doctrine holds that an employer is legally responsible for torts committed by their ‘servants’ in the course of their employment. The equivalent term under modern law would be ‘employee’. At the time, the dominant test for determining whether the primary tortfeasor was a servant was whether the defendant had control over how they performed their services.
The defendant argued that the doctor responsible for the negligence was not one of their servants, as they had no control over how he performed his job.
The issue was the meaning of ‘servant’ in the context of vicarious liability.
The Court of Appeal held that the defendant was vicariously liable.
The fact that the worker engages in specialised and technical work for which he is specially qualified does not mean that he is necessarily not a servant. The Court held that a person is a servant of the defendant if he was chosen for the job by the defendant and is fully integrated into the defendant’s organisation.
In this case, the doctors were appointed to the hospital by the defendant and not chosen by the patient, and were fully integrated into the hospital. They were therefore the defendant’s servants.
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