Are Dental Practice Principals, as Providers, Vicariously Liable for the Dental Negligence of their Associates?

Tue, 04 May 2021

Dr Louisa Sherlock, barrister and former dental surgeon, considers the recent judgment in the case of Breakinbury v Croad (unreported) 2021.

Introduction

His Honour Judge Harrison released his judgment in the recent preliminary hearing in the case of Breakingbury v Croad on 19 April 2021.

The Claimant argued that the Defendant, a dental practice owner, owed a non-delegable duty of care to her as a patient of the practice (regardless of whether he personally treated her), and also that the Defendant could be held vicariously liable for the negligent treatment of her by an associate dentist who worked within his practice. The Claimant was successful on both points.

In the claim, the Claimant sought damages from the Defendant, a dentist who retired in about 2000, but who owned Fountain Dental Care Practice (“the practice”) until he sold it in 2012. The Claimant had been a patient of the practice since 2007. Allegations of negligence spanned the period 2008 - 2012 and related to work carried out at the practice rather than work carried out by the Defendant personally.

This judgment appears to expand on the judgment in Whetstone v Medical Protection Society Limited [2014] EWHC 1024 (QB) where the issue of a non-delegable duty was not considered, but where a dental practice principal (otherwise known as “Provider”) was found to be vicariously liable for the negligence of a dental associate associate (otherwise known as “Performer”) because the relationship was “akin to employment” given the level of control. In Whetstone, the regulation of the associate by the principal was arguably unusually tight,

"A copy of those policies was adduced in evidence. They were highly prescriptive. By way of example, the first section was "Greeting the patient and communication", and the first item was, "Greet the patient whilst standing facing them, be polite and put them at ease”.’’

However, in Breakingbury the judge found that the relationship between principal and associate was “akin to employment”, relying upon a standard British Dental Association contract (a template often used by principals to set out the contractual terms between principal and associate).

The judgment also follows the recent case of Ramdhean v (1) Agedo and (2) The Forum Dental Practice Ltd [2020] 1 WLUK 406, another county court decision, where the learned judge found that the dental practice owed a non-delegable duty of care in relation to treatment provided by Dr Agedo, and also found that the practice could be held vicariously liable for any negligence that the Claimant could prove in her claim against Dr Agedo.

The Issues

As is typical in NHS dental practices, the Defendant, as “Provider”, entered into a contractual relationship with the Local Health Board to provide dental services, and he discharged his contractual obligation by way of a number of associates working within the practice performing dental treatment for patients of the practice.

The Claimant contended that:

  1. the above arrangement gave rise to a non-delegable duty of care;
  2. the relationship between the Defendant and associate dentists was “akin to employment” and consequently, the principle of vicarious liability arose.

The judge considered the terms of the contract between the Defendant and the Local Health Board, and whilst not provided with signed associate agreements, relied upon the standard template as provided by the British Dental Association. The judge found for the Claimant on both points.

Non-delegable duty of care owed by Defendant to Claimant

In considering whether a non-delegable duty of care was owed to the Claimant by the Defendant, the judge relied upon the judgment in the Supreme Court case of Woodland v Swimming Teachers Association [2014] AC 537 where Lord Sumption undertook a comprehensive review of the authorities and identified five “defining features” relevant to the identification of cases where a non-delegable duty of care arises. The judge also considered the county court case of Ramdhean (discussed above) and Farraj v King’s Healthcare NHS Trust [2020] EWCA Civ 1203.

Counsel for the Defendant sought to draw a distinction between the case of a hospital and that of individually insured dentists within a practice. He developed his submissions by reference to a sort of obligation to be treated by a hospital, by contrast with a dental practice whereby there remained an element of choice or election on the part of the patient. However, this argument was not accepted. It was, in any event, an unusual argument given that patients now tend to be given a choice as to which hospital they are to be treated in if time is not of the essence, and further, patients have the opportunity to elect which treatment they undergo in hospital. Counsel for the Defendant also argued that Ramdhean was wrongly decided.

The judge found that the practice accepted the Claimant as a registered patient of the practice, and further, was paid for dental care provided to her within the ambit of the Local Health Board contract. The practice delegated that provision of care to associates, and whilst the associates made clinical decisions, it was found that they made them effectively on behalf of the practice,

The associates made clinical decisions in the provision of that care but in my view they made them effectively on behalf of FDC”.

The judge also found that the pleaded allegations related to a central function of the practice, namely the provision of dental services.

Having found that the characteristics identified by Lord Sumption in Woodland were made out, the judge considered whether it would be right to impose a non-delegable in duty. He found that a practice must owe a duty of care to a patient for whose care they are paid by the Local Health Board.

Vicarious Liability

Having found that a non-delegable duty of care existed, the judge said that it was perhaps not necessary to consider vicarious liability, but went on to consider it in any event.

He said that this was not an employer/employee relationship because the associate dentists were not employed by the practice, and made their own arrangement for tax etc. However, vicarious liability can also be found where there is a relationship that is found to be “akin to employment”.

The judge found that as “Provider”, the practice “had an overarching obligation to ensure that the dental services provided were safe and met the expected standard set by the Local Health Board”. He also noted that associate dentists were given targets for units of dental activity to accomplish during the year, and he found the setting of such targets as important. In his view, that degree of control was sufficient to form the basis of vicarious liability, and regarded as “akin to employment”.

The judge concluded that the fact that associates managed their own tax affairs and/or made their own insurance arrangements did not displace that conclusion.

The judge noted that those findings were consistent with the conclusion of HHJ Belcher in the Ramdhean case.

The judge also found that even after the Defendant stopped working within the practice, he remained responsible until the point of sale because he remained in control, and the fact that he had to manage the practice through a manager did not diminish his legal responsibility.

The remainder of the judgment considers the issue of limitation which I do not intend to address for the purpose of this article.

Implications

Breakingbury is a county court case, and therefore persuasive but not binding. With the above in mind, I make the following observations.

The implications of the findings in Breakingbury and in the recent case of Ramdhean are potentially far-reaching within the dental profession. If an associate is uninsured, or unable to be located, then a Claimant could seek to bring a claim against a principal dentist. Principals, or “Providers”, should therefore ensure that they are covered by their indemnifiers for any potential vicarious liability claim, even after their retirement if they still own a dental practice, and also check that all associates are properly indemnified.

Whilst some might consider it unjust that a dental practice principal can be found to be strictly liable for the negligence of an associate when treating a patient, the courts have more recently been willing to extend the doctrine of vicarious liability in the interest of social justice to ensure that innocent victims are able to obtain compensation from solvent defendants. The courts are typically unwilling to leave a Claimant at the mercy of a claim against an uninsured tortfeasor who may be of limited means, or where the tortfeasor cannot be located, for example, Ramdhean. However, in Breakingbury there is no suggestion that the relevant associate dentist/s were uninsured or unable to be located, and yet the judge still found that the principal owed a non-delegable duty of care and was vicariously liable for the dental negligence of associate dentists when treating a patient of the practice.

The judge in Breakingbury also made the point that the practice had an overarching obligation to ensure that the dental services provided by it were safe and met the expected standard set by the Local Health Board, and that associates made clinical decisions on behalf of the practice. This places responsibility squarely on the shoulders of the principal as practice owner, and principals may therefore need to consider how they ensure that such standards are met by their associates and other clinical staff.

Further, in this particular case, the judge considered that the relationship between principal and associate was “akin to employment” given the level of control that principals have over associates, relying upon a standard BDA template to establish the terms of the principal-associate agreement. It is worth noting that associates have established worker status in certain cases within the employment tribunal (see, for example, Davies v Crescent Dental Limited, Case No: 1600619/2017. However, Lady Hale made it very clear in Barclays Bank plc v Various Claimants [2020] UKSC 13 that a finding of a relationship which is “akin to employment” in a case such as Breakingbury where the finding is made in order to establish vicarious liability does not necessarily establish worker status for the purposes of employment law, let alone the status of an employee, and it is important that the judgment is not misinterpreted as such,

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 a quite different set of reasons.

Written by Dr Louisa Sherlock barrister at No5 Barrister's Chambers. 

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