30 October 2015

Bell v Alliance Medical Limited & Others [2015] CSOH 34. The Defenders were contracted by the Health Board to provide scanning services. During a scan the Pursuer’s artery was punctured during a cannulation procedure. There was a factual dispute in the case concerning whether the failure to notice a spurt of blood was negligent, it being accepted that striking the artery itself was not negligent per se.

The interesting aspect of this case is the fact that the Defenders sought a right of relief / contribution from their radiographer employee who had carried out the procedure. She in turn brought the Health Board into the action, arguing that they owed non-delegable duties of care and similarly sought a right of relief.

The Defenders relied upon the elderly House of Lord’s authority of Lister v Romford Ice & Cold Storage Ltd [1957] AC 555. In Lister, which split the bench 3:2, the Lords held that the Defenders were entitled to recover damages from their employee who had driven negligently during the course of his employment, the employee having an implied term in his contract of employment to exercise due care.

Counsel for the employee argued that the attempt to rely on Lister was misconceived as it only applied in circumstances where one employee had injured another. In any event, it was submitted that Lister was founded on the idea of vicarious liability from a bygone age, if it ever formed part of the Law of Scotland.

The Court was urged not to follow Lister and Lord Boyd commented, in giving his judgment, that the language used in Lister was ‘redolent of a bygone age’ and the judgment proceeded on the fiction that both parties had equal bargaining power which was to ignore the economic strengths of employee and employer and also the power of organised labour.

Nevertheless, whilst Lord Boyd made clear that the considerations underpinning Lister were outmoded and outdated, the ratio remained part of the law. Accordingly, he held that the Defenders were entitled to a right of relief from the employee and also held that the employee was not entitled to rely on her own negligence to secure a right of relief from the Health Board. He also commented that the effect of holding the employee liable may be to shift the economic burden from employer to employee, and a prudent employee would now seek insurance themselves.

Notwithstanding the above, the decision seems unlikely to be of a wider application given that employers / insurers have, for some time, had the ability to rely on their employees’ breaches of contract, yet have chosen not to convene them to actions.

The decision acts as a useful reminder to Defenders / insurers when considering their positions and the potential of seeking to pass on a liability to an individual employee, in circumstances where the employee may have the benefit of a separate policy of insurance as was the case in Bell.

Contact: Mark Hastings, Associate mfh@bto.co.uk  T. 0141 221 8012