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from the jury are Hall v. Lees (1904] 2 K. B. 602, 73 L. J. K. B. N. S. 819, 91 L. T. N. S. 20, 53 Week. Rep. 17, 20 Times, L. R. 678, Evans v. Liverpool Corporation (1906] 1 K. B. 160, 74 LJ. K. B. N. S. 742, 69 J. P. 263, 21 Times L. R. 558, 3 L. G. R. 868, and McDonald v. Massachusetts General Hospital (1876) 120 Mass. 432, 21 Am. Rep. 529. But Hall v. Lees turned entirely on the question whether the nurses were the servants of the association; and Evans v. Liverpool Corporation, 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 (1879) 12 R. I. 411, 34 Am. Rep. 675. (Beven's Negligence in Law, 3d ed. p. 1165, was also cited.] That the defendants are liable for the negligence of their servants is clear. Foreman v. Mayor of Canterbury (1871) L. R. 6 Q. B. 214, 40 L. J. Q. B. N. S. 138, 24 L. T. N. S. 385, 19 Week. Rep. 719.

McCall, K.C., Norman Craig, K.C., and H. Marks, for the respondents. This case is clearly covered by Evans v. Liverpool Corporation (1906) 1 K. B. 160, 74 L. J. K. B. N. S. 742, 69 J. P. 263, 21 Times L. R. 558, 3 L. G. R. 868. 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. Mcssachusetts General Hospital (1876) 120 Mass. 432, 21 Am. Rep. 529; Glavin v. Rhode Island Hospital (1879) 12 R. I. 411, 34 Am. Rep. 675, 679; District of Auckland Hospital v. Lovett (1892) 10 N, Z. L. R. 597. The [824] plaintiff has not attempted to show 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.

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. Bartholo mew's Hospital as a nonpaying patient for the purpose of being examined by Mr. Lockwood, who was a consulting surgeon attached to the hospital. He was taken to the theater in due course and placed under anesthetics; 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 anesthetics."

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 anesthetics, 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 Hospital (1879) 12 R. I. 411, 34 Am. Rep. 675, 679, 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 D, his siek neighbor, 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 (1878) 8 Ch. D. 807, at p. 819, 47 L. J. Bankr. N. S. 103, 38 L. T. N. S. 917, 26 Week. Rep. 890), 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 (1906] 1 K. B. 160, 74 L. J. K. B. N. S. 742, 69 J. P. 263, 21 Times L. R. 558, 3 L. G. R. 868, 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 theater 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 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 suecess 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 (1904] 2 K. B. 602, 73 L. J. K. B. N. S. 819, 91 L. T. N. S. 20, 53 Week. Rep. 17, 20 Times L. R. 678. I take the test applied by Lord Collins, then Master of the Rolls (1904] 2 K. B. at p. 615: “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 (1879) 12 R. I. 411, 34 Am. Rep. 679. 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 showing 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 showing 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

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