Insurance Informer: Vicarious liability – independent contractors

​​​​​​​​A recent medical case argued in the Supreme Court of Appeals reviewed the common law on whether a principal can be held vicariously liable for the actions of an independent contractor.

Whether a medical practice is liable for the wrongful actions of its locum doctors has long perplexed the medical industry and the insurers providing medical malpractice cover.

In a recent Supreme Court of Appeals case, Mohun and Another v Phillips N O1, the court was requested to develop the common law in order to hold a medical practice liable for the wrongful actions of one of its locum doctors.

The facts of this case are as follows: Mr S was admitted to Life Westville Hospital's emergency unit after taking an overdose of alcohol and tablets. The unit is operated by Doctors G Sanpersad, R Maharaj & Associates (the practice). Shortly after his arrival, he was attended to by Dr Mohun, a specialist physician whom the practice had contracted as a locum tenens (a doctor that temporarily fulfils the duties of another doctor as an independent contractor). Dr Mohun assessed him as drunk but stable. Mr S was given an oxygen facemask and left in the care of a nursing sister. Mr S's oxygen saturation levels subsequently dropped significantly, he became hypoxic, and suffered cardiac arrest. Although he was resuscitated, Mr S suffered permanent brain damage.

A lower court found Dr Mohun and the practice were jointly liable for the damages suffered by Mr S.

On appeal, the court found Dr Mohun had acted negligently by leaving Mr S in the care of a nurse because it is common knowledge that the adverse effects of an alcohol and drug overdose are delayed, meaning a patient may appear stable at first and then rapidly deteriorate. In the absence of clear directions, a nurse may not appreciate the subtle deterioration in a patient's level of consciousness and oxygen saturation as the substances are being absorbed.

The practice argued that it could only be held liable for Dr Mohun's negligence through vicarious liability. However, he was an independent contractor, and it is well established in law that a principal cannot be vicariously liable for the wrongdoing of an independent contractor, except where the principal was personally at fault2. In an attempt to circumvent this hurdle, counsel representing Mr S and his family (the respondents) urged the Court to introduce the concept of a "non-delegable duty of care" into South African law. This would impose a stricter standard on principals because entities under such a duty are required not only to exercise reasonable care themselves but must also ensure that others - even independent contractors - exercise reasonable care as well.

The Court declined to introduce this concept, on the basis that it is incongruent with South African law and counsel for the respondents had failed to argue why the common law as it currently stands offends the spirit, purport and objects of the Bill of Rights and therefore requires development. The Court held that the practice was not liable for Mr S's injuries.

Established South African law remains that practices which contract doctors in the capacity of a locum tenens will not be held liable for the negligent conduct of independent locum tenens in the circumstances where the practice itself acted reasonably. However, to manage the risk, the practice must have a written contract with the locum, clearly setting out that the locum is contracted on an independent contractor basis and the conduct of the locum must reflect that.

1 Mohun and Another v Phillips N O abo S and Another (1219/2021) [2022] ZASCA.

2 Chartaprops 16 (Pty) Ltd and Another v Silberman [2008] ZASCA 115.

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