The case of Hughes found the Defendant to be vicariously liable for the acts and omissions of self-employed associate dentists, finding the Defendant did owe the Claimant a non-delegable duty of care in respect of the dental treatment.
The Claimant brought a dental negligence claim against Defendant, the former owner of a dental practice that was contracted to provide NHS dental care under a General Dental Services Contract (‘GDS Contract’) with the local Primary Care Trust (‘PCT’). The claim itself arose from NHS dental treatment provided to the Claimant by four dentists engaged at the practice, three of whom were self-employed associates. The Defendant accepted vicarious liability for the fourth dentist, who was engaged under a contract of employment.
An agreement was in place between the Defendant and each associate. The Defendant used the British Dental Association’s (‘BDA’) standard template contract to govern this associate arrangement.
The hearing was to determine whether Mr. Rattan was liable for the acts or omissions of the associate dentists, by virtue of vicarious liability or a non-delegable duty of care.
Both parties agreed the question of whether the Defendant owed a non-delegable duty of care depended upon the application of the five factors identified in Woodland v Swimming Teachers Association [2013]:
(1) Vulnerability
(2) Antecedent relationship
(3) Lack of control
(4) Delegation
(5) Negligence
The Court did not accept the Defendant’s submission that it was necessary to demonstrate the Defendant’s assumption of a personal responsibility to provide the Claimant with dental treatment as a pre-requisite to satisfying the Woodland factors. The Court held that the first factor was satisfied, the Claimant was a patient of the practice as opposed to a patient of each associate; the practice held her dental records, and treatment was provided and remunerated in accordance with the terms of the GDS contract made with the PCT.
Citing the similar findings in Ramdhean v Agedo and Breakingbury v Croad, Heather Williams QC also found the second factor satisfied; an “antecedent relationship” existed between the Claimant and Defendant, entailing a “positive duty to protect her from harm caused by that treatment” (para 109). This finding was derived from specific aspects of the GDS contract, which covered the Claimant’s dental treatment (para 110).
Concerning the third factor, the relevant question was whether the Claimant lacked control over how the Defendant chooses to perform the obligations “whether personally or through employees or through third parties” (para 119). The Defendant could freely choose whether to provide NHS dental services himself, or via employees, associates, or sub-contractors. The Claimant at most “could request, although not insist upon, a particular dentist” from the pool of dentists at the practice.
In conclusion, Heather Williams QC found that if the Claimant established that she was a patient within the meaning of the first factor, it naturally followed that there was an antecedent relationship placing the Claimant in the Defendant’s care in respect of received dental treatment; the Claimant had no control over how these obligations were performed. Consequently, the fourth and fifth factors were adjudged to be present. Heather Williams QC, therefore, concluded that the Defendant owed a non-delegable duty of care to the Claimant.
Having made this finding, it was not necessary for the Court to go on to consider the question of vicarious liability, but Heather Williams QC considered it appropriate to do so as it was fully argued and had been transferred to the High Court because of the importance and complexity of the issues.
With respect to the vicarious liability question, the issue was whether the relationship between the Defendant and the associate dentists was sufficiently akin to employment to make it fair and just to hold the former responsible for their acts and omissions, confirmed in the case of Various Claimants v Barclays Bank plc. The Defendant accepted that if the relationship criterion was met, then the second limb regarding the closeness of the connection between the relationship and wrongdoing is satisfied.
Heather Williams QC found the associate dentists enjoyed a degree of control enabling the associates to make “clinical decisions and provide treatment as they saw fit”, and exercised freedom over how much they worked (para 125). However, there were 8 factors which persuaded her that a sufficient degree of control was present for a finding that the contractual relationship was sufficiently akin to employment, in particular: the Defendant determined when premises were open and when staff were available to the Associates; the Associates agreed to provide services as a Performer under the GDS Contract; the Associates agreed to comply with the Practice’s policies and procedures; the Defendant retained 50% of the monies received for NHS work undertaken by the Associates; there were detailed restrictive covenants in place following termination of an Associate’s engagement; and there was a limit on the number of holidays that an Associate could take.
The most significant question was whether the Associate Dentists were working as part of their own independent business or as an integral part of the Defendant’s business; Heather Williams QC concluded it was the latter, relying upon a further 7 factors (para 127). Consequently, the Court found the relationship to be sufficiently akin to employment to make it fair and just to hold the former responsible for their acts and omissions.
Heather Williams QC accordingly found the Defendant vicariously liable for the acts and omissions of the associates in respect of the Claimant’s dental treatment at the Practice, and that the Defendant owed her a non-delegable duty of care in respect of the treatment. The claim was therefore permitted to proceed.
Imogen Egan, a barrister in Outer Temple’s clinical negligence team, comments on the case as follows:
Imogen Egan
The case is of particular interest as an early example of the application of the UKSC judgment in Barclays Bank. Dental practice arrangements such as those in this case, using the BDA’s standard template contract, are common and the decision may have a wide-ranging impact. (Although, as the Claimant was an NHS patient, the Court did not decide whether the same non-delegable duty would be owed to private patients [110] of the Practice).
The Defendant has publicly stated his intention to appeal, so practitioners can hope to receive further authoritative guidance on these important issues soon.
