Vicarious Liability and Non-Delegable Duty of Care of Dental Practice Owners: Hughes v Rattan [2021] EWHC 2032 (QB)

Wed, 28 Jul 2021

On a trial of preliminary issues in the High Court, a former dental practice owner was found to be vicariously liable for the acts and omissions of Associate Dentists who had worked within his dental practice, and to have owed patients of the Practice a non-delegable duty of care. The judgment was handed down on 21 July 2021 by Heather Williams QC sitting as a Deputy High Court Judge.

The Judge considered the recent county court decisions of Ramdhean v Agedo and another, unrep. 28 January 2020 and Breakingbury v Croad, unrep. 19 April 2021 which have not been appealed: (see my previous article on Breakingbury).

Hughes concerned the alleged dental negligence of four Associates within the Practice at the material time, three of whom were self-employed and the fourth employed as a vocational trainee. Having sold it in March 2015, the Defendant had owned the Practice for 28 years. During the period that the Claimant had received treatment, the Defendant was the sole principal dentist, but did not personally treat the Claimant at any stage. 

When considering the issue of non-delegable duty of care, the Judge had regard to the five cumulative factors as identified by Lord Sumption at paragraph 23 of Woodland v Swimming Teachers Association and others [2013] UKSC 66, [2014] AC 537. She considered the first three factors in great detail and found that they applied. Counsel for the Defendant had already conceded that, if the Claimant could establish that she was a patient within the meaning of the first factor, there was an antecedent relationship between her and the Defendant placing her in his charge or care in respect of the dental treatment she received at the Practice, and that she had no control over how he chose to perform his obligations, then the fourth and fifth factors would also be present. Thus, it was concluded that the Defendant owed a non-delegable duty of care to the Claimant in relation to the dental treatment that she received at the Practice. The Judge stated that, in light of the above, it was not necessary for her to consider vicarious liability but considered it appropriate to do so in any event. 

Applying the Supreme Court decision in Various Claimants v Barclays Bank plc [2020] UKSC 13, [2020] ICR 893, the judge concluded that the Associate Dentists were providing treatment as an integral part of the Defendant’s Practice. Thus, she found that 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, and to impose vicarious liability. The Defendant rightfully conceded that, if this relationship criterion was met, then the second limb of the test, concerning the closeness of the connection between the relationship and the alleged wrongdoing, was satisfied. Thus, the judge concluded, obiter, that the Defendant was vicariously liable for the acts and omissions of the four Associates in respect of the Claimant’s dental treatment at the Practice. 

At paragraph 90 of the judgment the Judge noted the observations of Baroness Hale in Barclays Bank that it was no longer the case that a person would be an employee for all purposes. Baroness Hale had considered that “…it would be going too far down the road to tidiness for this court to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of ‘worker’, developed for quite a different set of reasons” (paragraph 29). 

The implications of this judgment following the recent county court cases of Breakingbury and Ramdhean are potentially far-reaching within the dental profession. Both during practice and, significantly, after their retirement, Principals, or “Providers”, should ensure that they are covered by their indemnifiers for any potential non-delegable duty or vicarious liability claim, and also check that all Associates are properly indemnified.

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