95 In Ellis v Wallsend District Hospital the scope of the hospital's duty of care, found in what the hospital had undertaken, did not include provision of the surgeon's services: the hospital was merely the place where the surgeon's services were provided. The reason why the hospital did not owe a "special independent or non-delegable obligation on the part of the hospital to ensure that the operation was performed with proper care" (see the conclusion of the passage last set out) was not that the hospital's duty of care was "delegable", but that its non-delegable duty of care did not extend to the performance of the surgery with due skill and care.
96 It is necessary first to identify the scope of the hospital's duty of care in the hospital/patient relationship because of the different roles of those involved in providing medical and associated services to the patient. If the hospital's undertaking extends to provision of the surgeon's services, the hospital must ensure that the surgeon exercises reasonable care in its place. But if the undertaking does not extend to provision of the surgeon's services, categorising the hospital's duty of care as non-delegable will not make the hospital liable if the surgeon (not being a servant or agent of the hospital) is negligent.
97 The same necessity arises when considering a surgeon's duty of care to a patient, because the surgeon will commonly be one member only of a team attending to the patient and those involved in providing medical and associated services to the patient have different roles: see Van Wyk v Lewis and the other cases considered above.
98 In the present case, therefore, the initial inquiry is into the scope of the duty of care owed by the appellant to the respondent: what medical services did he undertake to provide? Only when that has been ascertained should it be asked whether the duty of care was non-delegable, that is, whether the appellant was unable to fulfil his duty of care in providing those medical services by exercising reasonable care in entrusting performance to a competent third party, and is liable if the third party did not exercise due care. The scope of the duty of care will be largely determined by the facts, but against the background of what I have called divided responsibility in surgery involving a team.
99 The evidence going directly to the extent of the duty of care was scanty. The appellant "made arrangements" for the respondent to enter the hospital: this was not further explained. He nominated the hospital. A "doctor's admission sheet" recorded a request by the appellant to admit the respondent and the respondent's consent to the procedures of total hysterectomy and colposuspension. So far as appears, nothing was said to the respondent about the manner in which the surgery would be performed. What relationship, if any, the appellant had with the hospital did not appear, although it might be inferred that there was some kind of arrangement between the appellant and the hospital under which he could use its theatre.
100 Going indirectly to the extent of the duty of care was the appellant's evidence of practice and Professor Tracy's evidence of the "elaborate ritual", both establishing a normal procedure by which the surgeon manually explored the abdominal cavity but otherwise relied on the count kept by the theatre staff. It must have been understood that the surgery would be carried out in the hospital's theatre with the involvement of an anaesthetist and theatre staff. As between the appellant and the respondent it must have been implicit that the surgery would be carried out in accordance with the normal procedure, and so with the different roles of those involved in the surgery carried out on the respondent.
101 I do not think it can be said that the appellant undertook the provision to the respondent of "complete medical services" in a situation akin to that in Albrighton v Royal Prince Alfred Hospital. He did not undertake the provision of nursing services before or after the operation; they were to be provided by the hospital. There was nothing to suggest that he undertook the provision of the services of the anaesthetist. He did not undertake the provision of the services of the theatre staff, who were also to be provided by the hospital. He undertook the provision of his own surgical services, and there was nothing to indicate that he was to provide his surgical services otherwise than as one member of a team, the other members being the anaesthetist and the hospital staff, and in accordance with the normal procedure.
102 There is no doubt that in providing his surgical services the appellant owed a duty of care to the respondent. As a general statement, of course, he owed a "single comprehensive duty covering all the ways in which a doctor is called on to exercise his skill and judgment" (Rogers v Whitaker at 483), but it is necessary to "give content to the duty in the given case" (ibid), in determining the extent of the duty of care before venturing upon the question of a non-delegable duty of care. If it be assumed that the appellant's duty of care was a non-delegable duty of care, he could not depute that which he had to do, and do with reasonable care and skill, to a third party. On the evidence in this case, he was required to exercise reasonable care and skill in feeling for sponges in the abdominal cavity and asking whether the sponge count was satisfactory. But he was entitled to rely on the theatre staff in the customary way, and on the evidence in this case I do not think that his duty of care relevantly extended beyond feeling for sponges in the abdominal cavity and asking whether the sponge count was satisfactory. It follows that in my opinion the appellant was not in breach of a non-delegable duty of care by reason of the negligence of the theatre staff.
103 This conclusion is unsurprising in the light of the line of cases, from Van Wyk v Lewis onwards, to which I have referred. In the manner in which surgery of the kind undergone by the respondent is performed, the patient receives the attention of a team: the surgeon, the anaesthetist, and theatre staff. There is divided responsibility. The surgeon can be regarded, in the phrase used by the respondent's counsel, as the master of ceremonies, but he is nonetheless a member of a team and reliant on the due discharge of their responsibilities by the other members of the team. He should be able to concentrate on his own skilled task without shouldering the responsibilities of the other members of the team.
104 In the circumstances of the present case reliance on the count of the theatre staff, where the reliance is in conformity with accepted procedures and a proper exercise of care and skill, is not delegation for the purposes of the principles relevant to a non-delegable duty of care. While some of the judgments in the cases were in terms of vicarious liability, the outcomes and the reasoning were not dependent on that concept. Particular reference may be made to the judgments in Van Wyk v Lewis (paras 36, 37, 39-41 above), and part of the passage earlier set out from Ingram v Fitzgerald (para 44 above) bears repeating -
"The theatre sister and the assistant nurses are supplied by the private hospital where the operation is performed, and they have thus independent duties to perform. In the circumstances of this case, we think the proper inference is that the defendant did not undertake personally to do all the work necessarily involved in the operation. He must rather have undertaken to perform the operation in the hospital selected, and with the appliances there available, and with the assistance and co-operation of qualified, competent, and experienced nurses attached thereto. It is true that he was in supreme control, and that he had the right and the duty to intervene and could do so. But those subject to that control were skilled collaborators with independent duties, and he did not find it necessary, nor would he expect to find it necessary to intervene to direct the manner in which they discharged those duties. They were not his delegates in the sense that they were there to do work which he had contracted to do or to have done. They were, for general purposes the servants of the hospital, but in the theatre they were subject to his directions. In no sense, then, is it a proper inference from the facts that the doctor undertook personally to carry out that part of an operation which, in practice, falls to the nurses. There was no delegation, then, in the ordinary sense; for he did not intend and could not be taken to have assumed, to do their work or to have it done."