The defendants in a case of an alleged error involved with attaching a cannula – a device inserted into the body for the delivery or removal of fluid – who had agreed to pay fixed damages to the patient if liability could be proved also called upon their employee to contribute towards the employers liability, claiming a “third party” obligation.
The court heard that a female patient claim that the employee, a radiographer at a hospital’s MRI scanning facility, had mistakenly inserted the cannula into an artery and not a vein.
While the claimant did not suggest negligence had taken place, she argued that the “clear spurt of blood” on removal of the cannula should have alerted the radiographer to the error and to administer urgent medical treatment. However, the employee said that “nothing out of the ordinary” occurred and “did not recall a spurt of blood.”
At the hearing, the employers agreed to pay fixed damages if liability was proven, which both the claimant and the court accepted, but also claimed that their employee was a ‘third party’ and they were entitled to be insured by the employee against any losses and provide a contribution towards their liability to the patient.
The radiographer denied being liable to make a contribution to her employer’s liability. Instead, it was argued that if there was a liability, the employee also claimed to be entitled to a contribution from her employer - a Health Board that owned the hospital facility - based on the ‘no-delegable’ duty that the Board owed their employee.
The court noted that the defendant’s claim of holding the employee liable in the case would cause to “shift the economic burden of insuring against the negligent acts of employees from the employer to the individual employee.” The judge added there was “nothing in principle” preventing the employer seeking an indemnity from the employee and therefore, the employee’s counter claim for a contribution from the Health Board was dismissed.
However, the court accepted that the radiographer owed a non-delegable ‘duty of care’ to the patient and the Health Board were also liable for their employee’s negligence.