Breakingbury v Croad: non-delegable duty in dental negligence

Ted Cunningham discusses this case concerning a dental practice owner’s non-delegable duty, where judgment was handed down in April by His Honour Judge Harrison sitting at Cardiff County Court. The judgment can be accessed here, on the website of the solicitors for the claimant. In short, the Learned Judge held that Mr Croad, a former dentist who had been retired for 20 years and who had sold his practice many years before the litigation commenced, owed a non-delegable duty of care to the Claimant at the material time.

The background to non-delegable duties

While the basics of a non-delegable duty of a care will be familiar to practitioners and students alike, they require attention in respect of this case. In briefest terms, there are certain duties of care that A owes B that A cannot outsource or offload onto anyone else. These are non-delegable duties of care. Such non-delegable duties can be found in statute or at common law.

The leading case on whether a non-delegable duty exists at common law is Woodland v Swimming Teachers [2013] UKSC 66. In that matter, Lord Sumption identified five defining features which are relevant when considering if a non-delegable duty of care arises:

1. The Claimant is a patient or child, or for some other reason is especially vulnerable or dependent on the protection of the Defendant against risk of injury.
2. An antecedent relationship exists between the Claimant and the Defendant, independent of the negligent act or omission itself. Essentially, a Defendant needs to have some control over the Claimant.
3. The Claimant has no control over how the Defendant chooses to perform its obligations.
4. The Defendant has designated to a Third Party some function which is an integral part of the positive duty the Defendant has assumed towards the Claimant.
5. The Third Party has been negligent, not in some collateral aspect, but in the performance of the very function assumed by the Defendant and delegated by the Defendant to the Third Party.

In a clinical setting, pursuant to the National Health Service Act 2006, it is now well-established that claimants can sue an NHS Trust or GP Surgery directly for the negligent acts of its practitioners. However, this was not necessarily the case in claims involving dental practices where the alleged negligent acts or omissions were performed by associate dentists. In such circumstances, it has historically been those associate dentists who were liable to face civil proceedings rather than the dental practice itself.

The question before HHJ Harrison in this case was whether the (former) owner of the dental practice could be sued directly, i.e. did the practice owner owe a non-delegable duty of care to a patient? This is the second such case to have come before a Circuit Judge in recent months, HHJ Belchear having given judgment on essentially the same question in Ramdhean v Forum Dental Practice Ltd [2020, unreported]. In both cases, the Learned Judges held that a dental practice owner did owe a non-delegable duty of care. While neither case is binding, the judgments in both are well-reasoned and will likely be seen as persuasive going forward.

The facts

The Claimant had been a registered patient at Mr Croad’s former practice, FDCP, since approximately 2007. Between 2008 and 2012, the Claimant attended FDCP on approximately 50 occasions. It was the Claimant’s clear evidence that she could not choose which dentists she would see in advance; instead, she would be given an appointment and was seen by whichever dentist was available at the time.

In approximately July 2011, the Claimant attended FDCP to have some bridgework done. Further bridgework was undertaken in May 2012. After a four-year gap, the Claimant returned to FDCP with swelling and pain. She sought a second opinion at another practice, and she was thereby informed that the bridge that she had received was of very low quality and that the Claimant should sue the dentist who performed it.

Accordingly, the Claimant sued Mr Croad. The Defendant was a former dentist who had not practiced since approximately 2000. He had continued to own FDCP after giving up his practice, and had contracted with the local health board to provide dental services at the material time, before selling FDCP in approximately 2012. Mr Croad accepted that he was the ‘Provider’ of the dental services for the purposes of his contract with the local health board, and that, as Provider, he had an obligation to ensure that the dental services provided were safe and met the requisite standard. The Defendant met his contractual obligations by using self-employed associate dentists. The Court accepted that this was a common arrangement within dental practices.

The Defendant, via contract, provided the associates with a non-exclusive licence and authority to practice dentistry and surgery at FDCP. The same contract imposed restrictions on the associates, including forbidding an associate from taking a patient to another practice should they move.

It was the Claimant’s case that the provision of dental treatment was just the sort of clinical setting where a non-delegable duty should arise. The Defendant argued that there was distinction between the case of a hospital and that of an individually insured dentist. It was suggested that a patient has an obligation to be treated by a hospital, whereas a dental patient has an element of choice or election when deciding whether (or how) to be treated. Whilst the Defendant accepted that it would not matter in a hospital whether a nurse or doctor was directly employed by a Trust or through an agency, it was argued that this was very different to a case involving a dental practice owned by an individual. Accordingly, the Learned Judge considered whether a non-delegable duty of care existed between a dental practice owner and a patient as a preliminary issue.

The decision

HHJ Harrison applied the facts to Lord Sumption’s five features:

1. Was the Claimant a patient? Without issue, this was answered in the affirmative…“put shortly, in my view it is not possible to distinguish the nature of the relationship that a doctor or nurse has with their patient and that of a dental surgeon” (para 42).
2. Was there an antecedent relationship? Again, the Learned Judge found that there was. In reaching this conclusion, he noted the following relevant factors:
   1. The Claimant regarded herself as patient of the practice;
   2. FDCP regarded the Claimant as “belonging” to the practice;
   3. The contractual relationship between an associate dentist and FDCP made it clear that associates could not pinch a patient when they moved on;
   4. It was the practice itself that had a contractual obligation with the local health board – it was the practice who got paid for the service, and how the practice chose to provide that service was a matter for them; and
   5. The Claimant could not choose which dentist treated her.
3. Did the Claimant have control? It was found that the Claimant had no control over how the FDCP provided her dental treatment. The Learned Judge was unpersuaded by the Defendant’s attempt to distinguish between a hospital patient and a dental patient. HHJ Harrison opined that there was no obligation on a hospital patient to receive any treatment advised; there was always a requirement for consent or election. Fundamentally, FDCP was the Claimant’s dentist, and they could provide their service as they chose. It was not open to the Claimant to insist on how they did so (para 45).
4. Did FDCP delegate an integral function or part of its positive duty towards the Claimant? This characteristic was made out.
5. Did the negligence relate to a core function? Again, this characteristic was made out without difficulty.

Whilst HHJ Harrison was satisfied that the five characteristics identified by Lord Sumption were made out in this case, that was not the end of the matter. As Lady Hale observed in Woodland, those characteristics were not a statutory test. Accordingly, it was incumbent upon the Learned Judge to “stand back and ask whether it is right to impose a non-delegable duty” (para 48). Upon doing so, HHJ Harrison held as follows:

“…it seems to me that there is a good reason to impose a duty in this case…It may well be something that the wider dental community might find unexpected. However, if one stands back and asks if a practice…should owe a duty to a patient for whose care they are paid by the local health board then the answer must in my judgment be yes.”

Conclusion

It is easy to get distracted by the fact that the practice owner in this case had long since retired and sold his business. In reality, these are peripheral, headline-grabbing issues that are not relevant to the key issue of non-delegable duty. In practice, Breakingbury and Ramdhean both serve to align the dental profession more closely with its medical cousin. While every case is fact specific, it would be unwise to ignore two persuasive Circuit Judges’ judgments on the issue.

Practical tips

From a Claimant’s perspective, the practical implications of this case and Ramdhean are clear and welcome: bring the claim against the dental practice itself. Doing so will likely be more straightforward than identifying and locating the individual dentists concerned, particularly when the alleged negligent treatment spanned many years and involved numerous practitioners. However, given that neither Breakingbury or Ramdhean are binding authorities, it would be sensible also to include the individual dentists as named parties out of an abundance of caution for the time being.

As for dental practice owners, this judgment will no doubt be worrisome. On its face, this case appears to open the floodgates to future litigation. However, as highlighted by HHJ Harrison at Para 48, practice owners will likely be entitled to an indemnity from the individual negligent associate dentists. As a matter of course, it would be prudent to ensure that the individual practitioners are both made aware of and included as a party to any claim as soon as is reasonably practicable. It also demonstrates the need to ensure that all associate dentists on an owner’s roster have suitable individual professional indemnity cover.

As for associate dentists themselves, this case serves to highlight the importance of having proper indemnity cover in place at all times, not that this should ever need repeating.