Siow Ching Yee v Columbia Asia: Independent Contractor Defence Rejected

By a majority of four to one, the Federal Court held on 23 February 2024 that a private hospital could not escape liability by pointing out that the negligent anaesthetist was an independent contractor. As at 19 September 2026, Siow Ching Yee v Columbia Asia Sdn Bhd is the most recent Federal Court decision on when a private hospital answers for the consultants it engages.

A 3.30 am visit to the emergency department

The appellant had undergone a tonsillectomy at another medical centre. At about 3.30 am on 22 March 2010 he went to the emergency department of Columbia Asia Hospital, Puchong, with post-operative bleeding. The hospital’s medical officer saw him and referred him to two consultants, an ear, nose and throat surgeon and an anaesthetist, both engaged by the hospital as independent contractors.

While being prepared for emergency surgery he bled profusely. His airway was not secured promptly and he suffered hypoxic brain damage (damage caused by lack of oxygen), leaving him with permanent mental and physical disability. He sued through his wife as litigation representative.

The High Court found only the anaesthetist negligent and dismissed the claims against the surgeon and the hospital, awarding RM1.9 million. The Court of Appeal affirmed on liability and varied the amount. The anaesthetist’s indemnity cover was reported to be only RM1 million, so the hospital’s liability had real practical consequences. The Association of Private Hospitals Malaysia and the Consumers’ Association of Penang appeared as amici curiae (friends of the court).

Seven questions for the Federal Court

Leave was granted on seven questions. In substance they asked whether, after Hughes v Rattan [2022] EWCA Civ 107, the owner or manager of a private hospital owes a non-delegable duty, meaning a duty for which it stays legally responsible even when the work is done by someone else; whether Dr Kok Choong Seng [2018] 1 MLJ 685 applies where the hospital also owes contractual and statutory duties; whether a contractor’s inadequate indemnity cover is relevant; and whether independent-contractor status is a defence at all.

The remaining questions asked whether a statutory duty arises under the Private Healthcare Facilities and Services Act 1998; whether, after Armes v Nottinghamshire County Council [2018] 1 All ER 1, a separate inquiry into what is fair, just and reasonable follows the five features in Woodland v Swimming Teachers Association [2014] AC 537; and whether director’s fees count as earnings under section 28A(2)(c)(i) of the Civil Law Act 1956.

The majority: the hospital remains responsible

Mary Lim Thiam Suan FCJ delivered the majority judgment allowing the appeal. The majority read the 1998 Act and its 2006 Regulations as showing Parliament’s intention that private hospitals remain responsible for the treatment and care of patients, regardless of whom they employ, engage or delegate to. Section 38(1), on emergency care, and regulations 230 and 231 were singled out.

All five Woodland features were met. The patient was vulnerable and wholly reliant on the hospital. There was an antecedent relationship, since he had come to its emergency department and was first treated by its own medical officer. He had no control over how the hospital performed its function. Emergency treatment, an integral function, had been delegated to the consultants, and the negligence occurred in that very function.

The majority held that the fair, just and reasonable proviso in Woodland related to public education services and did not assist a private commercial hospital. Where a hospital owes a non-delegable duty, the independent-contractor defence is not sustainable in law. On damages, director’s fees and allowances on which tax had been paid fell within section 28A; the multiplicand, the monthly figure used to calculate lost earnings, was RM8,750.

According to a CodeBlue report in March 2024, the hospital’s claim for an indemnity from the anaesthetist was dismissed, leaving each of them liable for the whole award. The final sum has been reported variously as about RM4 million to RM4.5 million.

The dissent: a change for Parliament to make

Zabariah Mohd Yusof FCJ dissented, urging caution in expanding the doctrine. The negligent doctor had been identified and was liable. In the dissenting judge’s view, no statutory duty required the hospital to answer for an independent contractor, the majority’s approach unfairly burdened institutions providing critical services, particularly emergency care, and change on that scale was for Parliament.

What is still unsettled

How far the ruling reaches beyond emergency admissions remains open. Published commentary reports that the Court of Appeal, in Dr Chandran a/l Gnanappah v Gan See Joe [2025] 5 MLJ 216, applied it to a hospital’s statutory duty to ensure valid consent. In April 2026 the Court of Appeal reversed a High Court decision holding a Kuala Lumpur private hospital liable under a non-delegable duty, but on the ground that the surgeon had not been negligent at all (Free Malaysia Today, 17 April 2026).

Practical takeaways: patients, consultants and hospital boards

• Patients: if you went to the hospital itself for care, particularly through its emergency department, it may be liable for a consultant’s negligence even though the consultant is not its employee.

• Patients: the ruling matters most where the negligent consultant’s insurance is too small to meet the award.

• Doctors: review your indemnity limits. Commentary after the decision suggested that higher cover is prudent, especially for anaesthetists.

• Private hospitals: a consultancy agreement does not remove the duty. Credentialing, clinical governance, audit and indemnity arrangements with consultants now carry direct financial consequences.

• Private hospitals: higher consultant cover and contractual indemnities are likely responses, bearing in mind that the indemnity claim in this case was reported to have been dismissed.

Authorities and sources

• Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66; [2024] 3 MLRA 208 (Federal Court, 23 February 2024)

• Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 (Federal Court)

• Dr Chandran a/l Gnanappah v Gan See Joe & Anor and another appeal [2025] 5 MLJ 216 (Court of Appeal)

• Woodland v Swimming Teachers Association [2014] AC 537; Armes v Nottinghamshire County Council [2018] 1 All ER 1; Hughes v Rattan [2022] EWCA Civ 107

• Private Healthcare Facilities and Services Act 1998 (Act 586), section 38(1); Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006, regulations 230 and 231

• Civil Law Act 1956, section 28A(2)(c)(i)

• eLaw headnote to the decision; CodeBlue, 1 March 2024 and 14 March 2024; Free Malaysia Today, 17 April 2026; published law-firm case notes (secondary material)

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors