Dental Negligence, Vicarious Liability and Non-Delegable Duty: A Test Case

6 August 2021 by Robert Kellar QC

In Hughes v Rattan [2021] EWHC 2032 (QB), the High Court was asked to answer the following question. Was the owner of a dental practice liable for the dental negligence of a self-employed dentist engaged to work in the practice? The claim arose from NHS care provided by three different associate dentists.  The preliminary issue was whether the practice owner was liable by reason of: a) a non-delegable duty of care; or b) vicarious liability. The Court answered: “yes” and “yes”.

Non-Delegable Duty of Care

The Judge analysed the issue of non-delegable duty by reference to the principles affirmed by Lord Sumption in Woodland v. Swimming Teachers Association and others [2013] UKSC 66. 

(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is a characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3) The claimant has no control over how the defendant chooses to preform those obligations i.e. whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

The Court held that it was not necessary to show that the practice owner had accepted “personal responsibility” to provide the Claimant with dental treatment as a pre-requisite to satisfying the Woodland factors. No such requirement had been identified in Woodland itself. Nor did it matter that the practice owner had complete freedom to delegate work to his associates. The Court observed that the ability to delegate relevant acts to third parties was a feature of all cases in which a non-delegable duty was alleged to arise. Absent such delegation the existence of non-delegable duty would not arise as an issue in litigation. The Court then turned to address the specific Woodland factors.

The first factor was satisfied. It was apparent that the Claimant was a patient of the practice and not just a patient of each treating associate dentist. For example, the practice held patients’ records and contact details, arranged appointments and took payments for treatment. Moreover, the Claimant, as a patient of the practice, had placed herself under the care of the practice in circumstances where she was vulnerable to the risk of injury (given the nature of dental treatment) and dependant upon the practice in respect of the treatment provided. Woodland did  not require the Claimant to prove “a high threshold of vulnerability” beyond establishing that she was a patient.  

As to the second factor, there was a sufficient “antecedent relationship” between the Claimant and the practice from which a positive duty to protect the Claimant from harm could be imputed. In coming to that conclusion, the Court analysed the General Dental Service Contract (“GDS Contract”) between the PCT and the Defendant. As part of that contract it was the practice owner (and not individual associates) who undertook to provide an agreed amount of dental services to patients. The practice was also responsible for holding patients’ records, booking patients’ appointments and taking patients’ payments. Moreover it was the practice, and not individual associates, which supplied the premises, nurses and equipment necessary to perform dental services. All of these factors supported that the existence of an “antecedent relationship” between the practice and the patient.

The third Woodland factor was also made out by the Claimant. The Claimant had no control over how the practice owner chose to perform his obligations. The practice owner could choose whether to provide NHS dental services himself or via employees, associates or sub-contractors. At most the claimant could request, although not insist upon, a particular dentist from the pool of dentists which had been selected to provide dental services at the practice. The fact that the Claimant could choose to reject the services altogether was irrelevant. 

It was conceded by the Defendant that if the first three Woodland factors were made out the fourth and fifth would follow.

Vicarious Liability

As to vicarious liability, the Court applied the approach described by the Supreme Court in Various Claimants v. Barclays Bank plc [2020] UKSC 13. Following that approach, the question for the Court was whether the relationship between the practice owner and the associates was sufficiently “akin to employment” to make it fair and just to impose vicarious liability. The relevant distinction was between a situation “akin to employment” and a situation where a genuinely independent contractor was in business in their own account. Post Barclays this was the correct starting point rather than beginning with consideration of the five policy factors that had been identified by the Lord Phillips in the Christian Brothers case.

The sheer fact that the associate dentists were self employed, responsible for their own tax and national insurance and not in receipt of the kind of benefits that would be received by employees did not answer the question one way or another. Nor, held the Court, was it decisive that associate dentists had a large amount of freedom over how much time they worked at the practice and how their work was divided between NHS and private patients. 

Whist associates were free to make clinical decisions and provide treatment as they saw fit, a relatively slight amount of control was sufficient for the purposes of the law on vicarious liability. A number of factors suggested that there was a sufficient degree of control present. These included that that practice owner could decided when the premises were open and when his nursing and reception staff were made available. Furthermore associates agreed to comply with the practice’s policies and procedures and to comply with the requirements of the GDS contract regarding appraisal, CPD and clinical governance. 

However the most significant question, in the Court’s view, was whether associate dentists were working as part of their own independent business or as an integral part of the Defendant’s. The Court held that associates were an integral part of the Defendant’s business. In reaching that view it was influenced by a range of factors. These included that:

• The work was undertaken premises owned by the practice owner and using staff, equipment and other facilities that he provided;
• The dental work that the associate dentists undertook enabled the practice owner to meet his overarching obligations to the PCT under the GDS Contract to provide NHS dental services.
• Payment for the NHS work undertaken by the associate dentists was made by the PCT to the practice owner, who then retained a 50% share.
• Whilst the associate dentists bore an element of the business risk in terms of the amount of work they undertook, the practice owner bore the substantial majority of the financial risk and potential profits in terms of the dental work undertaken at the practice.

The Court therefore concluded that the relationship in this case was sufficiently “akin to employment” to make it fair, just and reasonable to impose vicarious liability. 

Comment

The liability of dental practice owners for the negligence of dental associates has previously been considered by the County Court (see Ramdhean v Agedo and Breakingbury v Croad) However, this is the first time that the issue has been considered by the High Court. Post Woodland and Barclays, whether healthcare providers are liable for the negligence of their independent contractors remains a hot topic. This is therefore an important test case for those involved in healthcare litigation. 

At first blush, this case suggests that the wind is blowing in favour of claimants on this important issue. The older case law about non-delegable duties was concerned with care provided in a hospital setting. However, this case demonstrates that hospital care is not a pre-requisite to the existence of a non-delegable duty. Moreover, it is also unnecessary for a claimant to prove a high degree of vulnerability or dependence.  It suffices (for the purposes of the first Woodland factor) that they can prove they were a patient of the defendant.

Similarly, the case demonstrates that it is possible to establish vicarious liability for practitioners who are indisputably self-employed and who enjoy a high degree of clinical autonomy. The key issue is whether that person is working as an integral part of the defendant’s business. If they are the Supreme Court’s decision in Barclay’s Bank is not a bar to the imposition of vicarious liability.

In the author’s view, the case is likely to be relied upon to support the imposition of vicarious liability / non-delegable duties more widely. On the other hand, it is clear that the outcome of this case turned upon its own particular facts. For example, the Court was heavily influenced by a careful analysis of the terms of the GDS contract between the Primary Care Trust and the practice owner in relation to NHS work.  Those terms would not be relevant to private dental work. Indeed, the Court stated in terms that it had not been asked to decide whether the same duties would be owed to private dental patients. Accordingly, the analysis performed by the Court in Hughes will need to be performed by the Court afresh in future cases. 

In the author’s view, it is likely that a substantial number of cases will follow in the wake of Hughes v. Rattan. The boundaries of non-delegable duty and vicarious liability in the healthcare context remain to be drawn.