this case, a mistake by the nurse alone might mean that there would be no liability
on the surgeon, but that vicarious liability might attach to the hospital authority.
It was established in cases such asCassidyv.Minister of Health/1951) andRoev.
Ministry of Health/1954) that the test for vicarious liability was no longer one of
control, but of whether the member of the medical staff was a permanent and
integral part of the hospital staff. So fixed and well settled was this body of law, that
from 1954 to 1990, under a governmental circular, health authorities defended
claims in negligence on behalf of all staff. At date of judgment or settlement,
damages would be apportioned, in accordance with the principles of vicarious
liability, between the medical defence organisation and the health authority.
Disputes as to the requisite shares of liability were rare.
InCassidy,however, it had been suggested that certain liabilities might be direct,
such that the duty of care could not be delegated `no matter whether the delegation
be to a servant under a contract of service or to an independent contractor'. For
some years, thisdictumof Lord Denning lay as an island of uncertainty in the
stormy seas of medical malpractice litigation. In recent times, however, the concept
of direct liability has received much greater attention. As Montgomery [11] points
out:
`In a modern system of healthcare... the responsibilities of doctors overlap with
those of nurses, midwives, managers and others. Direct liability on the part of
the health and hospital authorities may represent an important tool to unravel
the complexities of modem health provision.'Direct liability may have advantages in overcoming problems of where to place
responsibility amongst health care teams. Equally, it may assist the law in keeping
track of standards, as pressure on resources sees the devolution of tasks to nurses
which were previously performed by doctors.
All of this is a way of saying that direct liability may arise out of the failure of
structures of health care delivery which have been put in place in order to dis-
charge duties towards the patient. Thus, inBullv.Devon Area Health Authority
/1989) there was a gap of over an hour between the delivery of a first and a second
twin. A significant passage of time prior to the case arriving before the court made
it difficult for the defendant health authority to find evidence to dispute the claim
of negligence, but Lord Justice Slade nonetheless stated that:
`It is possible to imagine hypothetical contingencies which would have
accounted for a failure without any avoidable fault in the hospital's system, or
any negligence in its working, to secure Mrs Bull's attendance by any
obstetrician qualified to deliver the second twin between 7.35pm and 8.25pm.
In my judgment, however, all the most likely explanations of this failure point
strongly either to inefficiency in the system for summoning the assistance of the
registrar or consultant, in operation of the hospital, or to negligence by some
individuals in the working of that system.'This point is supported also by Lord Justice Mustill, who speaks of a finding by the learned judge, amply supported by the evidence, that the system should have been such that the second twin would be delivered as soon as practicable after the first'. In considering the submission that the hospitalcould not be expected to do more
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