Mary Newnham considers the Court of Appeal decision in Hughes v Rattan  EWCA Civ 107, which gives authoritative guidance on non-delegable duty of care and vicarious liability in the context of practice owners providing NHS dentistry services via associate dentists.
In Hughes , the Claimant alleged that she had received negligent dental treatment from three associate dentists (and one trainee dentist) operating out of a dental practice owned by the Defendant, Mr Rattan. Mr Rattan had contracted with Bromley Primary Care Trust to provide NHS dental services. A claim was brought against Mr Rattan only, who had not treated the Claimant himself.
The background facts were largely agreed and are thoroughly summarised within both the High Court and Court of Appeal judgments. In brief, the Defendant had a General Dental Services Contract with the PCT. 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. 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.
The trial of a preliminary issue – “Whether the Defendant is liable for the acts or omission of [the treating dentists] by virtue of vicarious liability of a non-delegable duty of care” – was heard by Heather Williams QC, sitting as a High Court Judge. The case 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 the 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.”
Our previous blog on the High Court decision can be found here.
At first instance, it had been held that there was a non-delegable duty of care owed by the Defendant to the Claimant and (although it was not necessary to make a finding) the Defendant was vicariously liable for the alleged negligence of the associate dentists. The Defendant appealed.
Non-delegable duty of care
At first instance, the judge had referred in detail to the five factors identified by Lord Sumption in Woodland v Swimming Teachers Association and Others, which the parties had agreed should determine the issue of non-delegable duty of care. The argument centred on factors (1) to (3), the Defendant having conceded that (4) and (5) would apply. To refresh our memories, Lord Sumption’s five cumulative factors were as follows:
“(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’s first ground of appeal was that the judge’s conclusion on non-delegable duty was wrong, and, in particular, that she had wrongly found that factors (1) to (3) were satisfied. The Defendant argued that the circumstances in Hughes were very different to the hospital cases considered in Woodland:
“(a) unlike a hospital accepting a patient, when the practice was contacted by the Respondent and agreed to make an appointment with a dentist, it did not assume a duty to the Respondent to provide dental treatment but merely a duty to make arrangements for the dental treatment to be provided by an associate;
(b) unlike a hospital, the Appellant had no care or control of the Respondent in respect of the dental treatment that was ultimately provided. Any care of control was limited to the administrative functions carried out by the practice.”
The Defendant’s argument focussed on Woodland factor (2). It was submitted that the interactions with the practice were purely administrative, and, hence, there was not a relationship which placed the Claimant in the actual custody, charge or care of the Defendant. The Defendant relied upon Armes v Nottinghamshire County Council and the distinction drawn in that case between a duty to perform and a duty to arrange. The Defendant also cited A (Child) v Ministry of Defence, as approved by Lord Sumption in Woodland, and submitted that the duty of the Defendant in this case was merely a duty to arrange.
It was more or less accepted that, if Woodland factor (2) was fulfilled, factor (1) would probably follow. As to factor (3), the Defendant referred to GB v Home Office and relied upon the fact that the Claimant could choose which practice she attended.
Bean LJ upheld the judge’s decision and reasoning on non-delegable duty of care. It was right to say that the Claimant was a patient of the practice, not just in layman’s language but as a matter of law. Of particular significance was the fact that there were restrictive covenants under which the practice retained the ‘goodwill’ of patients of the practice. Turning to the analysis of the Woodland factors:
“I also consider that the judge was right to find that the Claimant satisfied all the factors identified by Lord Sumption at paragraph 23 of Woodland as giving rise to a nondelegable duty of care:-
(1) In the first factor “patient” must include anyone receiving treatment from a dentist. It is not suggested that Lord Sumption was using the term “patient” in the old sense (that is to say someone who lacks capacity and would nowadays be described as a protected party); nor is there anything in his judgment to suggest that the term is confined to accident and emergency patients or to those admitted to a hospital overnight as in-patients. Whether it includes medical or dental patients who are not actually subjected to treatment, but merely advised in consultation, is a question for another case and another day. But the sentence cannot be rewritten as though the Claimant had to be within a subset of especially vulnerable patients in order to qualify. Indeed, Mr Davy came close to conceding that if the second factor was satisfied then so too was the first.
(2) Turning to the second factor, an antecedent relationship between the Claimant and the Defendant was established at the latest on each occasion when the Claimant signed the Personal Dental Treatment Plan, which she was required to do before any NHS treatment was carried out. That relationship placed the Claimant in the actual care of the Defendant, not because he was a dentist himself but because he was the owner of the Practice. It would have done likewise if the Practice had been run by a company or owned by a partnership. The duty, as Lord Sumption said in Woodland at , was, by virtue of the antecedent relationship, personal to the Defendant. “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.” The duty owed by Dr Rattan was a positive or affirmative one to protect the patient from injury, not simply to avoid acting a way that foreseeably causes injury; and it involved an element of control over the patient.
(3) As for the third factor, the Claimant had no control over how the Defendant chose to perform his obligations, whether personally or through employees or third parties. She could express a preference as to which Associate Dentist she would like to see her, but no more than that. Of course she had control in the sense that she could refuse to be seen by anyone other than Dr X, or could refuse to be treated at all, but that applies to all dental patients and all hospital out-patients, at any rate those with full capacity. The right of a fully sentient adult to refuse treatment does not seem to me to have anything to do with Lord Sumption’s third factor in Woodland. The decision of Coulson J in GB v Home Office does not assist the Defendant either. The fact that a prisoner or immigration detainee cannot decide to seek treatment elsewhere does not mean that any patient who can do so is not owed the non-delegable duty of care.”
Having dismissed the appeal on non-delegable duty of care, the Court of Appeal did not strictly need to deal with the second ground of appeal, but were asked to do so in any event as Hughes was “in the nature of a test case”. The Defendant appealed this aspect of the decision on the grounds that the judge had failed to take into account and/or give appropriate weight to various relevant factors when concluding that the relationship was akin to employment. The Claimant argued in response that the judge had made an evaluation of the facts and that the Defendant was seeking to re-argue the case on the facts, which it may not do on appeal. The Court of Appeal was prepared to consider matters:
“The Defendant’s case on vicarious liability, in a nutshell, is that the judge attached too much weight to factors pointing towards his relationship with the Associate Dentists being akin to employment and too little weight to the factors pointing the other way. I appreciate that a multi-factorial evaluation by a trial judge is one with which this court should be slow to interfere. But where the primary facts are largely undisputed and the preliminary issue is one of law, the deference to be accorded to the trial judge’s evaluation is reduced.”
The judge at first instance had considered and referred to the leading modern authorities on vicarious liability, including Various Claimants v Barclays Bank plc, and had regarded the critical question as being the one asked by Lord Reed in Cox v Ministry of Justice: namely whether the alleged tortfeasor “carried on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party.” If that had been the last word from the Supreme Court on the subject, Bean LJ would have upheld the judge’s finding, essentially for the same reasons which gave rise to a non-delegable duty of care.
However, following Barclays, the critical question now appeared to have reverted to being whether the alleged tortfeasor’s relationship with the defendant can properly be described as being “akin” or (“analogous”) to employment, with the focus being on the contractual arrangements between the tortfeasor and the defendant. The relationship in this case did not meet the Barclays test. The Court of Appeal referred to various factors, in particular the fact that the associate dentists were free to work as many or as few hours as they wished and that they were also free to work for other practice owners and businesses (and some, in fact, did).
Bean LJ therefore differed from the judge on the issue of vicarious liability. This was, however, of little assistance to the Defendant, given the earlier findings on non-delegable duty of care.
This is an important test case in the field of dental negligence and makes it clear that the duty owed to dental patients cannot readily be distinguished from that owed to medical patients more generally. Claimants can now bring a more straightforward claim against a practice owner where (as is often the case) there has been a course of treatment of various dates by various different practitioners or where associate dentists may have insufficient or non-existent insurance cover. It may still be appropriate to join named dentists individually in some cases. For Defendants, most practice owners should now be aware of the implications for their own insurance cover. The insurance position of associate dentists should be scrutinised as practice owners may still be entitled to indemnities.
For clinical negligence practitioners generally, this case provides useful guidance on the interpretation of Woodland and where the line can be drawn between a duty to arrange and a duty to perform. This is particularly relevant in cases where aspects of NHS medical care are subcontracted or outsourced to a third party organisation.
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 analysis of Woodlands etc. – see Henry King’s blog on Hopkins v Akramy here.
Finally, this case illustrates that the tests for non-delegable duty of care and vicarious liability are distinct and separate tests. Non-delegable duty of care is a matter of the relationship between the claimant and the defendant, and the control or custody that the defendant has over the claimant. It is not a matter of control over the party carrying out the work, or over the work or acts in question. A non-delegable duty of care can exist even where the relationship between the defendant and the independent contractor carrying out the work is insufficiently akin to employment to give rise to vicarious liability.
 Now Heather Williams J
  UKSC 66
 Paragraph 60
  AC 355
  QB 183
  EWHC 819 (QB)
 Paragraph 71
 Para 84
  UKSC 13
  UKSC 10
  EWHC 3445 (QB)