Liability of Hospitals in Common Law Canada, The
![handle is hein.journals/mcgil26 and id is 1011 raw text is: COMMENTS - COMMENTAIRES
The Liability of Hospitals in Common Law Canada
1. The hospital as it once was
The earliest hospitals were charitable institutions and protected
as such by the courts.' They were sustained by endowments and
voluntary contributions, which were encouraged in England by
the creation of the charitable trust.2 In order to function hospitals
had to purchase supplies of food and equipment, and hire persons
to care for the patient and operate the physical plant. Provision was
eventually made for some patients to pay for their accommodation.3
Thus, of necessity, hospitals entered into legal relationships and
became accountable under contracts, and by 1907 it was clear that
a hospital was liable for the negligence of its employees.4 But it was
also held that a hospital could not be liable for the negligence of
employees such as nurses or doctors in the execution of their pro-
fessional duties, as opposed to administrative functions. The ration-
ale for this limitation was that the hospital neither directed nor
controlled the exercise of professional judgment.
In the Hillyer case the English Court of Appeal concluded that
a hospital undertook certain duties toward a patient:
The governors of a public hospital, by their admission of the patient to
enjoy in the hospital the gratuitous benefit of its care, do, I think,
undertake that the patient whilst there shall be treated only by
experts, whether surgeons, physicians or nurses, of whose professional
competence the governors have taken reasonable care to assure them-
selves; and, further, that those experts shall have at their disposal, for the
care and treatment of the patient, fit and proper apparatus and
appliances.5
Thus, approximately seventy-five years ago, a patient had some
recourse against a hospital: in contract, depending on the terms
thereof, or in tort, if the hospital had breached its duty to select
competent staff and to supply proper equipment, or by vicarious
liability, subject to the restriction in the Hillyer case.
1 The derivation of hospital from hospitalis, in Latin meaning a place
for guests, is of some etymological interest: see the Oxford English
Dictionary.
243 Eliz. 1, c. 4: see Speller, The Law Relating to Hospitals and Kindred
Institutions, 4th ed., (1978), 3.
3 Ibid., 101.
4Hillyer v. The Governors of St Bartholomew's Hospital [1909] 2 K.B.
820 (C.A.).
5 Ibid., 829.
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Liability of Hospitals in Common Law Canada, The
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