Getting your teeth into non-delegable duties and vicarious liability

Mary Newnham considers Hughes v Rattan [2021 EWHC 2032 (QB), an important decision for the dental sector on the issue of legal responsibility of practice owners providing NHS dentistry services via associate dentists, but of interest to all clinical negligence practitioners with its guidance on non-delegable duties and vicarious liability.

Background

In Hughes, the Claimant alleged that she had received negligent dental treatment from three associate dentists (and one trainee associate dentist) operating out of a dental practice owned by the Defendant, Mr Rajendra Rattan[1]. Mr Rattan had contracted with Bromley Primary Care Trust to provide NHS dental services and Mrs Hughes was one such patient. A claim was brought against Mr Rattan only. Mr Rattan had not treated the Claimant himself.

The trial of a preliminary issue – “Whether the Defendant is liable for the acts or omissions of [the treating dentists] by virtue of vicarious liability or a non-delegable duty of care” – was heard by Heather Williams QC, sitting as a High Court Judge, on 9th and 10th June 2021.

By way of background, Hughes had been transferred from Central London County Court to the High Court by HHJ Backhouse because “the issues raised were legally complex and would benefit from consideration at first instance by the High Court and as the outcome would be likely to have significant consequences for other users and providers of dental services and for dental negligence litigation.”

This followed two first instance County Court decisions in which the same preliminary issue on similar facts had been resolved in the claimants’ favour: Ramdhean v Agedo & FDPL, 29th January 2020, HHJ Belcher, Leeds County Court; and Breakingbury v Croad, 19th April 2021, HHJ Harrison, Cardiff County Court.

In Ramdhean v Agedo & FDPL, the claimant had been treated by the first defendant, who was working at the second defendant’s practice. The second defendant had an Intermediate Minor Oral Surgery contract with Doncaster PCT, under which the claimant had been treated. The first defendant’s whereabouts were unknown and his insurers (Dental Protection, via discretionary indemnity) had denied cover due to a lack of notification. The second defendant held public liability insurance only. The second defendant said that the first defendant was a self-employed, individually indemnified, independent dental professional – the entire dental industry operated under these arrangements and the situation had been relatively unchanged since the inception of the National Health Service. The issues of non-delegable duty of care and vicarious liability were dealt with as a preliminary issue, with both determined in the claimant’s favour (although note that this case predates the Supreme Court decision in Various Claimants v Barclays Bank, discussed further below).

This was followed by Breakingbury v Croad. In that case, the claimant had been treated at the second defendant’s dental practice on multiple occasions (and by different dentists) between 2008 and 2012, undergoing bridgework. In 2018 she attended another dentist, whose opinion can be gleaned from an email referred to at the hearing:

I will write an x ray report and send to you over the weekend… the bridge is crap and has been since it was placed… if I was her and wanted implants, she should sue the dentist who did the bridge… give her number for Dental Law Partnership when you see her… but you can’t have the work done until the case is settled.”

She subsequently sued the second defendant, who had not carried out any dentistry himself since 2000 and had sold the practice in 2012. Again, the issues of non-delegable duty of care and vicarious liability were dealt with as preliminary issues (together with limitation) and were determined in the Claimant’s favour (for further discussion, see Ted Cunningham’s blog here).

Those County Court decisions had made waves in the dental sector, as the same or similar arrangements were replicated in dental practices throughout the NHS, but neither had been appealed. The decision in Hughes was therefore intended to provide clarity and High Court authority on this point.

Facts of the claim

The background facts, which were largely agreed, are thoroughly summarised within the judgment and I will not set them out in full in this blog. The Defendant had a General Dental Services Contract with the PCT, which was considered in detail by the Judge. He was paid a set amount by the NHS for providing an agreed amount of dental services. He was permitted to sub-contract those services. He had to comply with certain standards, check the training and qualifications of the associates and check their insurance. Until very shortly before the hearing Mr Rattan was without direct indemnity cover for liability as a practice owner for negligence of associate or trainee dentists, but his insurers then confirmed that cover would be provided.[2]

The associate dentists were retained on a standard British Dental Association contract. The Defendant provided the premises, equipment, reception staff and nurses. The associate dentists were paid 50% of the fees received by the Defendant from the NHS for the treatment they provided. They held their own insurance, were responsible for their own tax and national insurance, were not entitled to sick pay or pension contributions, had no minimum hours, had clinical control over the dental treatment provided and could work elsewhere if they wanted. Crucially, however, the ‘goodwill’ of ‘patients of the practice’ was retained by the Defendant – in other words, the associate dentists could not leave and take ‘their’ patients with them.

There was an issue between the parties as to whether the Claimant was a ‘patient of the practice’. The Claimant said that she made appointments at reception, did not choose a particular dentist and paid at reception. She thought she was a patient of the practice. The Defendant’s case was that she could request a particular dentist, but otherwise would be allocated her usual dentist, or another if not available.

Consideration of a non-delegable duty of care

The parties agreed that the issue of whether there was a non-delegable duty of care was to be determined upon the application of the factors identified in Woodland v Swimming Teachers Association and Others [2013] UKSC 66 (decision available here). To remind ourselves, Lord Sumption’s five cumulative factors were as follows[3]:

“(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 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 perform 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 Defendant conceded that factors (4) and (5) would be satisfied if factors (1) to (3) were established.

The Claimant argued that factor (1) applied and that there was no distinction of principle between dental patients and hospital patients. Factor (2) applied in the context of the antecedent relationship between the Claimant and the practice. Factor (3) applied as the Claimant had no control over how the Defendant chose to perform his obligations to provide dental services, and she could only request (but not insist upon) a particular dentist. She relied upon the previous decisions in Ramdhean and Breakingbury.

The Defendant argued firstly that, before consideration of Woodland, the Claimant must show that there was a specific duty on the Defendant to do the specific task that was negligently performed. The Defendant sought to draw a distinction between a duty to “do” and a duty to “arrange”[4]. Factor (1) did not apply because the Defendant was providing only an administrative service – the Defendant relied upon A (A Child) v MoD[5] and Farraj v King’s Healthcare NHS Trust[6]. Therefore, factor (2) was not established either, and factor (3) was not made out because the Claimant was free to go to a different dentist or even a different practice entirely.

The Court held that there was no need for the Defendant to assume a personal responsibility to provide the Claimant with dental treatment, and no such preliminary requirement was identified in Woodland. This would overlap with factor (2). Further, as the Judge pointed out, the ability to delegate acts will be a feature of any case where a non-delegable duty is alleged because, absent a delegation, the point would not arise. Per Lord Sumption: “The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant’s. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own.”[7]

In respect of the Woodland factors, it was held that factors (1) to (3) were made out by the Claimant. The Claimant was a patient of the practice and not just of the treating dentist. The practice held her records, took payment, provided NHS treatment and was remunerated in accordance with the GDS contract. The goodwill of the patients was retained by the Defendant. Dental treatment gave rise to a risk of injury, by analogy with the hospital cases discussed in Woodland. There was no need for a high threshold of vulnerability in addition to showing that the Claimant was a patient in the sense used in Woodland. A (A Child) and Farraj were distinguishable.

Considering factor (2), there was an antecedent relationship between the Claimant and the Defendant. The obligations of the Defendant under the GDS contract were relevant, as were the arrangements with the Claimant discussed under factor (1). The Claimant’s own perception that she was a patient of the practice did not itself carry any weight – this would be too subjective and uncertain, as held in Farraj. But the factors that led her to that perception would be relevant as objective indicators. The Defendant’s argument that there was no statutory duty to treat (as there would be in a hospital) was not held to be a relevant point of distinction. Although the Court considered that the arrangements between the Defendant and the associate dentists were only tangentially relevant to this point (as opposed to vicarious liability), these tended to support the analysis. The degree of clinical freedom afforded to the associate dentists, relied upon the Defendant, did not assist him. As explained by Lord Sumption, the existence of a non-delegable duty does not require the defendant to be in control of the environment where injury is caused, but to be in control of the claimant.

Finally, in relation to factor (3), at most the Claimant could request (but not insist upon) a particular dentist from the pool selected by the Defendant. The fact she could go to a different practice was not on point.

The Judge therefore concluded that a non-delegable duty of care was established between the Defendant and the Claimant.

Consideration of vicarious liability

The Court did not strictly need to go on to consider vicarious liability, but proceeded to do so, given the basis upon which the case had been transferred to the High Court.

The parties agreed that the issue of vicarious liability should be determined following the Supreme Court decision in Various Claimants v Barclays Bank plc [2020] UKSC 13 [8]. The key question to resolve was therefore whether the relationship was sufficiently akin to employment to make it fair and just to impose vicarious liability.

The Claimant argued that that test was made out. This was an example of the ‘doubtful case’ contemplated by Baroness Hale in Barclays Bank, where the ‘five incidents’ identified by Lord Phillips in the Christian Brothers[9] case would be helpful. The associate dentists were an integral part of the Defendant’s business activity and they enabled him to fulfil his commitment to the PCT. This was reinforced by the Associate Agreement, particularly the terms relating to termination and goodwill.

The Defendant argued that the associate dentists were independent contractors, and emphasised their lack of obligation to work for the Defendant, their freedom to work elsewhere, their bearing of some profit/loss risk and their clinical freedom.

The Court also found for the Claimant on this point. There was a sufficient degree of control by the Defendant, which could be “relatively slight”. In particular: the Defendant determined the opening hours, the associate dentists were subject to the Defendant’s powers and responsibilities under the GDS contract, the Defendant retained the goodwill of patients, there were limitations on holidays and the treatment of private patients, etc. The Court started from the position that the most significant question was whether the associate dentists were working as part of their own independent businesses or as an integral part of the Defendant’s business. In this case, it was the latter. In particular, reliance was placed upon the fact that work was carried out at the Defendant’s premises, using his staff and equipment, which enabled the Defendant to meet his obligations under the GDS contract. He bore most of the business risk. He collected the NHS charges and received payment from the NHS. The Claimant was a patient of the practice, as previously held. The relationship was therefore sufficiently akin employment to impose vicarious liability. It was unnecessary to consider the five policy incidents from Christian Brothers in any detail.

Discussion

This is obviously a decision of importance in the field of dental negligence. For claimants, this aligns the position in dental claims more closely with that in medical claims, and makes it much more straightforward to bring a claim where (as is often the case) there has been a course of treatment on various dates, carried out by various practitioners. It may still be appropriate to join named dentists individually. For defendants, practice owners may still be entitled to indemnities from associate dentists, and their insurance position should be scrutinised. Hughes is, of course, only directly relevant to NHS (as opposed to private) dentistry.

Looking at the wider picture, medical cases generally are a major source of arguments over non-delegable duty of care (especially where aspects of NHS medical care are subcontracted or outsourced to third party organisations), and a read of Hughes with its clear summary of the law (and reminder to scrutinise the relevant contracts) will provide a useful starting point. It is, however, important to bear in mind that, where the duty is statutory as opposed to common law, the issue of delegability will be determined by analysis of that statute and not by consideration of Woodlands etc – see Henry King’s blog on Hopkins v Akramy[10] here.

Although vicarious liability and non-delegable duty of care are commonly considered together in this type of case, it is important to keep the tests distinct and the right questions in mind. Non-delegable duty of care comes down to the relationship the defendant has with the claimant, not with the third party. It is about control or custody over the claimant, and not control over the third party or the work or acts in question, which is more relevant to vicarious liability. Therefore, it is likely that attempts to argue vicarious liability points to defeat a claim for non-delegable duty will not get very far.


References

[1] Also the Dental Director of Dental Protection

[2] https://www.dentalprotection.org/uk/articles/dental-protection-provides-additional-protection-for-practice-principal-members – said to be in response to the decision in Breakingbury

[3] Paragraph 23

[4] Relying upon Armes v Notts County Council [2018] AC 355

[5] [2005] QB 183

[6] [2010] 1 WLR 2130

[7] Paragraph 7 of Woodland

[8] Decided after the judgment in Ramdhean

[9] [2012] UKSC 56

[10] [2020] EWHC 3445 (QB)

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