Farraj & Anor v King's Healthcare NHS Trust (KCH) & Ors

Farraj & Anor v King's Healthcare NHS Trust (KCH) & Ors

KCH was not negligent as there was a clearly understood arrangement with CSL that CSL would communicate any doubts about the sample, and KCH was entitled to rely on this. There was no basis for imposing a non-delegable duty on KCH in these circumstances, as the claimants were not patients admitted for treatment and the relationship did not justify such a duty. CSL alone was liable for the negligence that led to the wrongful birth.

Parties
Claimant/first Respondent: Mrs Hanan Basem Farraj; Claimant/first Respondent: Mr Basem Farraj; First Defendant/part 20 Claimant/appellant: King’s Healthcare NHS Trust (KCH); Second Defendant/part 20 Defendant/second Respondent: Cytogenetic DNA Services Limited (CSL)
Jurisdiction
England and Wales
Judgment Date
13 November 2009
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal allowed; cross-appeal dismissed
Legal Topics
Negligence, Wrongful Birth, Non Delegable Duty, Vicarious Liability, Apportionment of Liability
Tort Law Medical Negligence Negligence Wrongful Birth Non Delegable Duty Vicarious Liability Apportionment of Liability

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Parties

Mrs Hanan Basem Farraj

Claimant/first Respondent

Mr Basem Farraj

Claimant/first Respondent

King’s Healthcare NHS Trust (KCH)

First Defendant/part 20 Claimant/appellant

Cytogenetic DNA Services Limited (CSL)

Second Defendant/part 20 Defendant/second Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether KCH was negligent in failing to make a positive enquiry of CSL regarding the quality of the sample for DNA testing.
  2. 2 Whether KCH owed a non-delegable duty of care to the claimants for the acts of CSL.
  3. 3 Whether the apportionment of liability and costs between KCH and CSL was correct.

Ratio Decidendi

KCH was not negligent as there was a clearly understood arrangement with CSL that CSL would communicate any doubts about the sample, and KCH was entitled to rely on this. There was no basis for imposing a non-delegable duty on KCH in these circumstances, as the claimants were not patients admitted for treatment and the relationship did not justify such a duty. CSL alone was liable for the negligence that led to the wrongful birth.

Court Disposition

Appeal allowed; cross-appeal dismissed

Orders

  • KCH’s appeal allowed; KCH not liable in negligence.
  • CSL liable for 100% of the damages.