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Title : Hillyer v Governors of St Bartholomew's
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Status: Mixed or Mildly Negative Judicial Treatment

*820 Hillyer v The Governors of St. Bartholomew's Hospital

In the Court of Appeal
23 July 1909

[1909] 2 K.B. 820

Cozens-Hardy M.R. , Farwell and Kennedy L.JJ.
1909 July 12, 13, 23
Negligence—Public Hospital—Liability of Governors—Operation—Injury to Patient—Hospital
Staff—Relation of Hospital to Patients.
The only duty undertaken by the governors of a public hospital towards a patient who is treated in the
hospital is to use due care and skill in selecting their medical staff. The relationship of master and
servant does not exist between the governors and the physicians and surgeons who give their
services at the hospital, and the nurses and other attendants assisting at an operation cease for the
time being to be the servants of the governors, inasmuch as they take their orders during that period
from the operating surgeon alone and not from the hospital authorities.
The plaintiff brought an action against the governors of a hospital for damages for injuries alleged to
have been caused to him during an operation by the negligence of some member of the hospital
staff:—
, that the action was not maintainable.
APPEAL from a verdict and judgment at a trial before Grantham J. and a special jury which raised the
question of the liability of the governors of a hospital for negligence in the treatment of a patient.
The action was brought by William Herbert Hillyer, a medical man, against “The Mayor, Commonalty,
and Citizens of the City of London (Governors of the House of the Poor commonly called St.
Bartholomew's Hospital, near West Smithfield, of the Foundation of King Henry the Eighth),” for
damages for injuries from the defendants' negligence at their hospital.
The plaintiff's case was that on March 28, 1907, he entered St. Bartholomew's Hospital for the
purpose of being medically examined under an anæsthetic; that the examination was conducted by
Mr. Charles Barrett Lockwood, a consulting surgeon attached to the hospital; that for the purpose of
the examination he was placed on an operating table in such a position that his arms were allowed to
hang over its sides; that his left arm was in contact with a hot water tin projecting from beneath the
table, and the inner upper part of it was burned, and that the *821 inner upper part of his right arm
was bruised by the operator or some other person pressing against it during the operation; and that
the result of these injuries was traumatic neuritis and paralysis of both arms, and he had ever since
been unable to exercise his profession as a medical man. It appeared that the examination was
undertaken gratuitously, as the result of representations made by the plaintiff that after prolonged
suffering from and treatment for sciatica he had come to the end of his resources. The defendants
denied the alleged negligence and pleaded that if they owed any duty to the plaintiff it was to exercise
reasonable care in the selection of the hospital staff, in which duty they had not failed.
The plaintiff called none of the persons present at the operation as witnesses, and his case was
mainly based on the defendants' answers to interrogatories, the material ones being Nos. 5 and 6,
which were as follows: 5. “That the persons who in the ordinary course of their employment are
servants or agents of the defendants and who assisted in the operation and placing the plaintiff upon
the operating table and in administering an anæsthetic to the plaintiff and in securing the plaintiff in
position on the operating table and in conducting the examination of the plaintiff were the following.”
Three surgeons, an administrator of anæsthetic, and three certificated nurses were then named; then
“two of the hospital staff known as box carriers and attached to the theatre, whose duty was to bring
the plaintiff to the theatre and place him upon the operating table. As regards the part which the
above persons took in the examination of the plaintiff in the present case their respective duties were
as follows:—(a) The plaintiff was placed upon the operating table by the box carriers. (b) The acting
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sister had to see that he was placed properly on the table, and that the part prepared for examination
was uncovered, while the lest of his body was warmly and adequately covered. She had to stand at
the side of the surgeon and hand him such things as he might from time to time require. (c) The
examination of the plaintiff was carried out by the said Charles Barrett Lockwood, assisted by the said
George Ernest Gask and the said James Ernest Helme Roberts. (d) The house surgeon, *822 with
the assistance of the nurses present, had to make such alterations in the position of the plaintiff upon
the operating table as the operator demanded. (e) The said George Herbert Colt was responsible for
the due administration of the necessary anæsthetic. (f) The said nurses present had further to comply
with the directions of the surgeons in charge as to the requirements of the moment during the course
of the examination.”
“6. That the plaintiff in the course of the said examination was burned on the left arm by the
displacement of a hot water can in the course of undergoing the said examination under an
anæsthetic.”
Grantham J. refused to put the question of negligence to the jury, holding that, even if there had been
negligence, the operation was under the control of the operating surgeon, for whose action it was
admitted that the governors were not responsible; neither would they be liable for the negligence of
their staff, even if proved, and he therefore gave judgment for the defendants.
The plaintiff appealed.
J. B. Matthews , for the appellant. The refusal of the judge in the Court below to leave the case to the
jury is sufficient ground for a new trial. If the jury were satisfied that the injury to the plaintiff was
caused by some negligence on the part of the hospital staff, then the defendants are liable for the
negligence of their staff. For the purposes of this appeal it is admitted that the position of master and
servant did not exist between the operating surgeon and the defendants, but the position of the staff
is different. The answer to interrogatory 6 admits the plaintiff's case; indeed it is a case of res ipsa
loquitur, for the plaintiff's arm was not injured before the operation. There must have been negligence
on the part of some of those present at the operation, and unless the defendants can make out as a
matter of law that they are not responsible for the negligence of some member of their staff, the
plaintiff is entitled to a new trial and to have the question of negligence submitted to a jury.
The plaintiff, being under an anæsthetic at the time, can give *823 no evidence, but the injured arm is
prima facie evidence of negligence within Scott v. London Dock Co.1 , Christie v. Griggs 2 , and
Skinner v. London, Brighton, and South Coast Ry. Co. 3 Where an inanimate patient, handled by eight
people, meets with an injury, the injury is prima facie evidence against them all; all are jointly and
severally liable for the negligence, and it is no excuse for the master of these eight people to say that
the operating surgeon is responsible for the conduct of the operation and therefore they are not liable.
The duty of keeping the patient safely on the operating table was on the hospital staff who were
present at the operation.
The cases which induced the judge to withdraw this action from the jury are Hall v. Lees4 , Evans v.
Liverpool Corporation 5 , and McDonald v. Massachusetts General Hospital . 6 But Hall v. Lees 7
turned entirely on the question whether the nurses were the servants of the association; and Evans v.
Liverpool Corporation 8 , though an authority that the operating surgeon is not liable, does not deal
with the liability of the rest of the staff. The position of the surgeons and physicians is well stated in
Glavin v. Rhode Island Hospital . 9 [Beven's Negligence in Law, 3rd ed. p. 1165, was also cited.] That
the defendants are liable for the negligence of their servants is clear: Foreman v. Mayor of Canterbury
. 10
McCall, K.C., Norman Craig, K.C. , and H. Marks , for the respondents. This case is clearly covered
by Evans v. Liverpool Corporation . 11 No distinction can be made between the operating surgeon, the
house surgeons, and the nurses, for the latter are not the servants of the defendants for the purposes
of an operation conducted by the medical staff. A hospital which has exercised due care in the
selection of its agents is not liable for injury caused to a patient by their negligence: McDonald v.
Massachusetts General Hospital 12 ; Glavin v. Rhode Island Hospital 13 ; District of Auckland Hospital
v. Lovett . 14 The *824 plaintiff has not attempted to shew that the defendants have not used due care
and skill in selecting their medical and nursing staff, the only duty undertaken by a public hospital
towards their patient.
Matthews in reply.
Cur. adv. vult.
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July 23. COZENS-HARDY M.R.

I think the decision in this case is quite right, and the appeal must be dismissed for the reasons
contained in the judgments of Farwell L.J. and Kennedy L.J., which I have read.
FARWELL L.J.
read the following judgment:—In March, 1907, the plaintiff, who is a medical man and had recently
returned from West Africa in a bad state of health and without means, consulted Mr. Lockwood and
by his advice entered St. Bartholomew's Hospital as a non-paying patient for the purpose of being
examined by Mr. Lockwood, who was a consulting surgeon attached to the hospital. He was taken to
the theatre in due course and placed under anæsthetic; when he recovered consciousness he found
that one arm had been bruised and the other burned on the inner upper part. Such bruising and
burning were consistent with his right arm having been pressed against the edge of the operating
table and with his left arm having been allowed to hang down and come in contact with the heating
apparatus under the table, but there was no evidence that this was the case; the plaintiff himself was
unconscious, and he called none of the persons who were present at the operation. His only direct
evidence was the answer of the defendants to the sixth interrogatory, “that the plaintiff in the course of
the said examination was burned on the left arm by the displacement of a hot water can in the course
of undergoing the said examination under anæsthetic.”
The persons who were present at this examination and their duties are set out in the answer to
interrogatory 5. [His Lordship read this, and continued:—] The plaintiff now sues the defendants, who
are governors of the hospital under certain agreements and statutes, for damages for negligence.
Grantham J. held that if there was negligence they were not liable, and also *825 withdrew the case
from the jury on the ground that there was no evidence of negligence.
It is now settled that a public body is liable for the negligence of its servants in the same way as
private individuals would be liable under similar circumstances, notwithstanding that it is acting in the
performance of public duties, like a local board of health, or of eleemosynary and charitable functions,
like a public hospital. The extent to which their property can be made liable to execution is another
question and does not arise here. The first question then is, Were any of the persons present at the
examination servants of the defendants? It is, in my opinion, impossible to contend that Mr.
Lockwood, the surgeon, or the acting assistant surgeon, or the acting house surgeon, or the
administrator of anæsthetic, or any of them, were servants in the proper sense of the word; they are
all professional men, employed by the defendants to exercise their profession to the best of their
abilities according to their own discretion; but in exercising it they are in no way under the orders or
bound to obey the directions of the defendants. The true relation of the parties is, in my opinion, well
stated by the Chief Justice in Glavin v. Rhode Island Hospital15 , where the Chief Justice said: “Here
the physicians or surgeons are selected by the corporation or the trustees. But does it follow from this
that they are the servants of the corporation? We think not. If A. out of charity employs a physician to
attend B., his sick neighbour, the physician does not become A.'s servant, and A., if he has been duly
careful in selecting him, will not be answerable to B. for his malpractice. The reason is that A. does
not undertake to treat B. through the agency of the physician, but only to procure for B. the services of
the physician. The relation of master and servant is not established between A. and the physician.
And so there is no such relation between the corporation and the physicians and surgeons who give
their services at the hospital. It is true the corporation has power to dismiss them, but it has this power
not because they are its servants but because of its control of the hospital where their services are
rendered. They would not recognize the right of the *826 corporation, while retaining them, to direct
them in their treatment of patients.” The only duty undertaken by the defendants is to use due care
and skill in selecting their medical staff, a duty similar to that undertaken by trustees to their cestui
que trust—a duty arising ex contractu: see Ex parte Adamson 16 , namely, to bring such skill and care
to bear on the affairs of their cestui que trust as the reasonable man of business brings to his own. It
is not suggested that there is any negligent performance of this duty; indeed, so far as Mr. Lockwood
is concerned, the plaintiff went to St. Bartholomew's Hospital in order to be under his charge and to
be examined by him. This is in accordance with Walton J.'s decision in Evans v. Liverpool Corporation
17
, with which I entirely agree. The three nurses and the two carriers stand on a somewhat different
footing, and I will assume that they are the servants of the defendants. But although they are such
servants for general purposes, they are not so for the purposes of operations and examinations by
the medical officers. If and so long as they are bound to obey the orders of the defendants, it may well
be that they are their servants, but as soon as the door of the theatre or operating room has closed on
them for the purposes of an operation (in which term I include examination by the surgeon) they
cease to be under the orders of the defendants, and are at the disposal and under the sole orders of
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the operating surgeon until the whole operation has been completely finished; the surgeon is for the
time being supreme, and the defendants cannot interfere with or gainsay his orders. This is well
understood, and is indeed essential to the success of operations; no surgeon would undertake the
responsibility of operations if his orders and directions were subject to the control of or interference by
the governing body. The nurses and carriers, therefore, assisting at an operation cease for the time
being to be the servants of the defendants, inasmuch as they take their orders during that period from
the operating surgeon alone, and not from the hospital authorities.
The contract of the hospital is not to nurse during the operation, but to supply nurses and others, in
whose selection they have taken due care. The relation of the hospital to the patient *827 in respect
of nurses and attendants supplied by the former for an operation on the latter is the same as that of
the Association of Nurses to the patient supplied by them with a nurse, as decided by this Court in the
case of Hall v. Lees . 18 I take the test applied by Lord Collins, then Master of the Rolls 19 : “They are
not put in his place to do an act which he intended to do for himself.” The nurses and attendants are
not put in the place of the hospital to do work which the governors of the hospital intended to do
themselves, because they had not undertaken to operate or assist in operating, but only to supply
qualified persons to act as nurses and assistants under the control of the operating surgeon. Let me
test it by enlarging the case put by the American Chief Justice in Glavin v. Rhode Island Hospital . 20
Let me suppose that the good Samaritan not only employs the surgeon, but takes the patient into his
own house, and gives him the services of his own servant, whom he believes to be a skilful nurse, in
order to assist the surgeon in an operation: the same reasoning would apply—there is no more
undertaking by A. to assist the surgeon in the operation than there is to operate; the undertaking is
the same in both—to procure the services of surgeon and nurse reasonably believed by him to be
competent. I am therefore of opinion that the defendants are not liable at all to the plaintiff. But even if
the nurses and carriers were persons for whose negligence the defendants would be liable, the
plaintiff would still fail, because it is clear that they are not liable for the negligence of the surgeon.
The plaintiff has to prove his case against the defendants, but he does not do so by shewing that he
has been injured by the negligence of A., B., C., and D., or of one of them, when the defendants are
liable for the negligence of C. and D. only, and not for that of A. and B. He must prove that the
defendants are liable, and does not do so by shewing that if C. and D. were the negligent persons
they would be liable, but if it is A. and B., then they are not. He must prove affirmatively that the
negligence was that of the persons for whom the defendants are liable. I prefer not to express any
opinion on *828 the question whether the answer to the sixth interrogatory is sufficient evidence to
call upon the defendants for an answer.
KENNEDY L.J.
In this case the evidence adduced at the trial on behalf of the plaintiff would, it appears to me, have
been sufficient to call for an answer from the defendants if the defendants could, in point of law,
properly be held responsible to the plaintiff for injury caused to him by negligence on the part of the
surgeons and nurses engaged in the surgical examination to which the plaintiff submitted in the
hospital of which the defendants are the governors.
The defendants in their answers to interrogatories admitted that all those surgeons and nurses, as
well as the anæsthetist and the box carriers (who obviously may, for the purposes of this case, be
omitted from consideration), were their servants or agents, and that one arm of the plaintiff, whilst he
was lying on the operating table and insensible through the administration of anæsthetic, was burned
by contact with a hot water tin which somehow got displaced during the examination. The plaintiff
gave some evidence of damage resulting from the burn. It appears to me that, subject always to the
reservation I have stated in respect of the nature of the defendants' legal responsibility for the
negligent acts or omissions of their professional staff, there was, apart from the statements which two
of the surgeons, Mr. Gask and Mr. Roberts, made subsequently to the plaintiff, and which were
admitted in evidence without objection on the part of the defendants' counsel, a prima facie case on
the issue of negligence in the facts which I have briefly set forth. I think that so far the plaintiff might,
in the circumstances, invoke the application of the maxim res ipsa loquitur.
But the difficulty in the plaintiff's way on this appeal, which the learned counsel for the plaintiff has not,
in my judgment, been able to surmount in his able and ingenious argument, is this. The legal duty
which the hospital authority undertakes towards a patient, to whom it gives the privilege of skilled
surgical, medical, and nursing aid within its walls, is an inference of law from the facts. In my opinion it
is not the ordinary duty of a person who deals with another through his servants or *829 agents and
undertakes responsibility to that other person for damage resulting from any injury inflicted upon him
by the negligence of those servants or agents. In my view, the duty which the law implies in the
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relation of the hospital authority to a patient and the corresponding liability are limited. The governors
of a public hospital, by their admission of the patient to enjoy in the hospital the gratuitous benefit of
its care, do, I think, undertake that the patient whilst there shall be treated only by experts, whether
surgeons, physicians or nurses, of whose professional competence the governors have taken
reasonable care to assure themselves; and, further, that those experts shall have at their disposal, for
the care and treatment of the patient, fit and proper apparatus and appliances. But I see no ground for
holding it to be a right legal inference from the circumstances of the relation of hospital and patient
that the hospital authority makes itself liable in damages, if members of its professional staff, of
whose competence there is no question, act negligently towards the patient in some matter of
professional care or skill, or neglect to use, or use negligently, in his treatment the apparatus or
appliances which are at their disposal. It must be understood that I am speaking only of the conduct
of the hospital staff in matters of professional skill, in which the governors of the hospital neither do
nor could properly interfere either by rule or by supervision. It may well be, and for my part I should,
as at present advised, be prepared to hold, that the hospital authority is legally responsible to the
patients for the due performance of their servants within the hospital of their purely ministerial or
administrative duties, such as, for example, attendances of nurses in the wards, the summoning of
medical aid in cases of emergency, the supply of proper food, and the like. The management of a
hospital ought to make and does make its own regulations in respect of such matters of routine, and it
is, in my judgment, legally responsible to the patients for their sufficiency, their propriety, and
observance of them by the servants.
In the view which I have expressed in regard to the non-liability of the governors of a hospital for the
negligence of the professional staff in matters of professional care and skill, provided always that the
authority has used reasonable care in *830 selecting a competent staff and proper apparatus and
appliances, I am deciding in accordance with the judgment of my brother Walton in the recent case of
Evans v. Liverpool Corporation21 and I entirely concur in the reasoning upon which that judgment is
based. With the American and New Zealand cases which were cited to us by the learned counsel on
both sides I do not think it necessary to deal. They are not in agreement; in one of them, McDonald v.
Massachusetts General Hospital 22 , relied upon by the defendants, the judgment appears to have
been influenced by an English decision of Holliday v. St. Leonard, Shoreditch 23 , which has been
overruled by the House of Lords in Mersey Docks Trustees v. Gibbs 24 : see per Blackburn J.,
Foreman v. Mayor of Canterbury . 25
If the view of the limits of the liability of the present defendants as governors of St. Bartholomew's
Hospital is correct, Grantham J. was justified in stopping this case at the close of the plaintiff's
evidence. The plaintiff had produced no evidence that the defendants had been guilty of a breach of
their duties towards the plaintiff—the duty of using reasonable care in selecting as members of the
staff persons who were competent, either as surgeons or as nurses, properly to perform their
respective parts in the surgical examination, and the duty to provide proper apparatus and
appliances.
I prefer to base my judgment that this appeal ought to be dismissed upon this single ground, but I
must not in saying this be understood to hold, even if the protection to the hospital authority from
liability for the negligence of their agents and servants in matters of professional skill extends only to
the case of Mr. Lockwood, that the plaintiff is necessarily extricated from difficulty. That eminent
surgeon, who was in charge of the examination, and must in reason and upon the evidence, so far as
there is any, be taken to have had the responsibility of controlling and directing the assistant surgeons
and nurses in regard to the manipulation of the plaintiff upon the operating table, and in regard to the
movement and *831 disposition of the apparatus, was chosen by the plaintiff himself; and I can find
no evidence to prove that any one of the surgeons or nurses in attendance either disobeyed or
neglected any direction given by him.

Representation
Solicitors: Warren, Murton & Miller , for R. H. Rushworth, Amersham ; Wilde, Moore, Wigstone & Co.
Appeal dismissed. (W. C. D.)

1. (1865) 3 H. & C. 596 .

2. (1809) 2 Camp. 79 .
3. (1850) 5 Ex. 787 .
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4. [1904] 2 K. B. 602 .
5. [1906] 1 K. B. 160 .
6. (1876) 21 Amer. Rep. 529 .
7. [1904] 2 K. B. 602 .
8. [1906] 1 K. B. 160 .
9. (1879) 34 Amer. Rep. 675 .
10. (1871) L. R. 6 Q. B. 214 .
11. [1906] 1 K. B. 160 .
12. (1876) 21 Amer. Rep. 529 .
13. 34 Amer. Rep. 675 , 679.
14. (1892) 10 N. Z. L. R. 597 .
15. 34 Amer. Rep. 675 , 679.
16. (1878) 8 Ch. D. 807 , at p. 819.
17. [1906] 1 K. B. 160 .
18. [1904] 2 K. B. 602 .
19. [1904] 2 K. B. at p. 615 .
20. 34 Amer. Rep. 679 .
21. [1906] 1 K. B. 160 .
22. 21 Amer. Rep. 529 .
23. (1861) 11 C. B. (N.S.) 192 .
24. (1864) L. R. 1 H. L. 93 .
25. L. R. 6 Q. B. 214 , at p. 218.

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