This question comes from a Victorian:

… volunteer at an event first aid company, this company provides a range of event services from your basic first aid right up to your full medical field deployments which can have a greater capacity and scope than many rural emergency departments.

At events where we have a medical response team (staffed by a doctor & nurse or paramedic & nurse) or a field hospital which are staffed by a complete multidisciplinary team of doctors, RNs, paramedics, EN/EENs and First Responders, there may be times where we are unable to find a volunteer doctor or paramedic that can help staff the medical deployment, so we will hire a doctor through a locum service.

My question is what would happen if the locum was to be negligent? It is my understanding that an employer is responsible for vicarious liability of their staff whether paid or volunteer, however does that extend to external contractors such as a locum service?

The answer to that question would depend very much on the terms of the agreement and the actual practice.

First, some case law

In Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 the NSW Court of Appeal confirmed that the hospital was vicariously liable for the negligence of an honorary medical officer even though the hospital management could not actually tell a doctor how to practice his or her profession.

The issue arose again in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.  In this case the plaintiff saw the doctor in his rooms, consulting him as a private patient.  The doctor was a visiting medical officer at the hospital which meant that in return for treating some public patients, he was given the right to admit private patient’s to the hospital and use the hospital’s resources (operating rooms etc) when treating private patients.  Mrs Ellis was a private patient.   In those circumstances the majority found that the hospital was not vicariously liable for the doctor as it was the patient, not the hospital, that engaged the doctor’s services.    Although dissenting, Kirby J said that the doctor was tied

… inextricably into the organisation of the hospital. True, he could not be directed on how to “hold the knife”. But neither could the other professional staff be so directed. He was integrated into the discipline and direction of the hospital. What he did in his rooms was his affair. But when he came into the hospital, he was part of the hospital. When working on its premises, he was part of its integrated medical team.

Finally, in  Hollis v Vabu [2001] HCA 44 the question for the High Court of Australia was whether Vabu Pty Ltd, a bicycle courier company, was vicariously liable for the negligence of one of its contracted couriers.  The couriers were independent contractors, not employees but the company exercised a great degree of control over their work.  Vabu set the rates of pay and allocated work and required them to wear the company uniform.  In the circumstances the degree of control and the incorporation of the couriers into the business of Vabu meant that Vabu was vicariously liable.

Implications

The implications of these cases are that the answer to the question asked depends on how the locum is incorporated into the event medical team. A patient comes to the event first aid providers looking for care from whoever the provider has on staff – they don’t get to choose their own first aid provider nor do they get to choose who provides the first aid.  If the person selected by the event first aid provider is the locum doctor, then it would still be the case that the provider is liable.  If the doctor is required to wear the corporate uniform, is directed as to where to work, subject to the requirements of the company, then that would be further  evidence that he or she forms part of an ‘integrated medical team’ and again that the event first aid provider will be liable.

If, on the other hand, the doctor is simply asked to be on site and keep in contact by radio or telephone, if he or she is not wearing the corporate uniform and if the first aiders treat a patient but say ‘we do have an on call doctor we can get to come if you want?’ and only call the doctor on the patient’s request.  And if the doctor bills the patient, not the event first aid provider, that would all suggest that there is an independent doctor/patient relationship and the event first aid provider would not be vicariously liable.

Added to that complexity will be the terms of any agreement between the doctor and the provider as to means of payment, entitlement to medicare rebates, who pays the tax and insurance etc.

The question of vicarious liability no longer depends simply on whether or not there is an employment relationship that subjects the employee to the employer’s control – ‘control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered.’ (Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1, [20] (Mason J)).

Conclusion

Whether the ‘event first aid company’ would be vicariously liable for the negligence of a locum doctor would depend on ‘the totality of the relationship between the parties’.  The terms of any agreement would be relevant as would the extent to which the contracting doctor is subject to the direction and control of the company and the extent to which he or she is incorporated into an ‘integrated medical team’.   I would imagine, in most circumstances, it would be impossible to identify the doctor as anything other than part of the team, so I would anticipate that in most cases vicarious liability would be established, but that is speaking in the most general terms.

If any case arose, the true nature of the relationship between the parties would need to be explored to resolve that issue.