When preparing a claim for medical negligence, one of the issues that will be considered by your lawyer is who should be sued, or who is the appropriate defendant in the case?

For example, if you are treated by a doctor in a hospital and that doctor’s treatment falls below the accepted standard of care, causing you to suffer harm, then we must ask whether it is the hospital or the doctor who is liable. The answer will depend on vicarious liability and non-delegable duty of care.

Vicarious Liability

  • Vicarious liability is the situation where somebody can be held liable for somebody else’s negligence, merely as a consequence of a special relationship between the parties.
  • It is generally accepted that an employer will be vicariously liable for the negligent actions or omissions of its employees. Therefore, as an employer, a hospital can be vicariously liable for the negligent actions of the doctors and other staff they employ.
  • In a medical negligence case, issues tend to arise when the employment relationship between the treating doctor and the hospital is not clear because an employer will not be held vicariously liable for the actions of an independent contractor.
  • In the case of Ellis v Wallsend District Hospital (1989) (Ellis), it was held that the honorary surgeon was not an employee of the hospital and therefore the hospital could not be vicariously liable.

Non-delegable duty of care

  • A non-delegable duty is a duty that cannot be assigned and in the context of medical negligence, arises out of the hospital’s relationship with the patient.
  • It means that in certain circumstances, a hospital can be held liable for a doctor’s negligence, even if the treating doctor was not an employee of the hospital.
  • This may occur in situations where the treating doctor is a consultant or a visiting medical officer.
  • To determine whether the hospital is liable as a result of a non-delegable duty, the courts will ask whether the treating doctor was contracted by the hospital or by the patient and whether the negligence was within the scope of the services that the hospital agreed to provide.
  • In Ellis, it was held that the hospital was not liable because the patient had consulted with the surgeon privately in his rooms and the negligence was outside the scope of the treatment that the hospital had undertaken to provide.


  1. If you receive treatment at a hospital, by a doctor employed by that hospital, the hospital can be held vicariously liable for any negligence and will be the likely defendant.
  2. If you receive treatment at a hospital, by a doctor who is not an employee but is contracted by the hospital rather than by you, it is likely a non-delegable duty would exist and the hospital will be the likely defendant.
  3. If you receive treatment as a private patient of a doctor at a hospital, and the doctor was contracted by you, i.e. you consulted with the doctor in their private rooms prior to treatment, the doctor will be the likely defendant.

Get in touch with us

This demonstrates that medical negligence litigation can be complex and therefore it is vital to ensure that every matter is investigated with skill and expertise.

At Turner Freeman we have lawyers who specialise in medical negligence claims. Our Sydney Partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law.

If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered injury as a result of inadequate treatment, or a lack of treatment at a public hospital, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.