Hughes v Rattan – Court of Appeal dismisses Defendant’s appeal on non-delegable duty but upholds appeal on vicarious liability

The Court of Appeal has handed judgment in the much-anticipated appeal from the High Court decision ([2021] EWHC 2032 (QB)) where judgment was found for the Claimant on both non-delegable duty and vicarious liability. We discuss the appeal and its implications in this article.

The facts

The Claimant alleged that she received negligent dental treatment from three dentists on various occasions between August 2009 and December 2015. The Defendant, Dr Rattan, was the owner and operator of the dental practice where the Claimant attended for her treatment. She was not treated by the Defendant but rather by three associate dentists and one trainee dentist (the latter of which it was accepted was an employee and the practice was therefore vicariously liable for them).

The parties largely agreed the facts for the purposes of the appeal. It was accepted that NHS dental care was provided at the Defendant’s practice pursuant to a contract between the PCT and the Defendant under which the Defendant was contracted to provide dental services to patients. The contract permitted the Defendant to sub-contract his obligations under the contract. It was agreed that three of the dentists who provided the alleged negligent treatment to the Claimant were engaged by the Defendant as Associate Dentists pursuant to the associate agreements.

The associate agreements were based on the British Dental Association standard contract. The Defendant would provide the premises, dental equipment, a dental nurse, receptionist and supplies necessary in the exercise of dentistry.  The Associate Dentists were paid 50% of the fees the Defendant received for the NHS treatment they provided, less 50% of any expenses incurred. A similar arrangement was in place for private dental treatment. The Associates were responsible for the standard of their own work, personally held indemnity cover for negligence claims, and were responsible for their own tax and national insurance, amongst other things. The contract also included provision for maximum holiday, parental leave, notice of termination and restrictive covenants.

Non-delegable duty

Heather Williams QC (now Heather Williams J), held that the Defendant owed the Claimant a non-delegable duty following the test set out by Lord Sumption in Woodland v Swimming Teachers Association and others [2014] AC 537 (being the leading case on non-delegable duty of care). In that case it was held that a non-delegable duty will arise if the following criteria are met:

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 focus of the Defendant’s appeal was on the second Woodland factor. The Defendant submitted that the antecedent relationship which Lord Sumption regarded as essential must be one which places the Claimant in the actual custody, charge, or care of the Defendant. The Defendant emphasised the agreed fact that each Associate had complete clinical control when treating the Claimant. It was also argued that the Claimant’s interactions with the practice were “entirely administrative”.

The Defendant accepted that if the Defendant assumed a positive duty to the Claimant to provide dental treatment for the purposes of the second Woodland factor, then it would follow that the first criteria would also be met.

As to the third factor, the Defendant referred to GB v Home Office [2015] EWHC 819 (QB) in which Coulson J held that a detainee in an immigration facility effectively had no control over the medical treatment offered to her.

Bean LJ, who gave judgment, upheld the decision on non-delegable duty.

In relation to the first factor, it was found that a “patient” must include anyone receiving treatment from a dentist. There was no requirement for the Claimant to be within a subset of especially vulnerable patients in order to qualify.

In relation to the second factor, it was found that an antecedent relationship was established when the Claimant signed the Personal Dental Treatment Plan. That relationship placed the Claimant in the care of the Defendant because he was the owner of the practice. The Defendant therefore had a positive duty protect the Claimant from injury.

In relation to the third factor, it was found that the Claimant had no control over how the Defendant chose to perform his obligations. The most she could do was express a preference. The fact she could refuse to be treated did not affect that analysis.

Vicarious Liability  

The Defendant appealed the finding on vicarious liability on the basis that it failed to take into account various factors consistent with the Associates being independent contractors when determining whether the relationship between the Defendant and the Associates was akin to employment.

Bean LJ found following the Supreme Court decision in Various Claimants v Barclays Bank Plc [2020] UKSC 13, that the critical question is 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 relationship between the tortfeasor and defendant.

Bean LJ found that the test was not met. This was because of the Associates’ freedom to work at the practice for as many hours as they wished, that they were free to work for other practice owners and in fact some of them did so, that the Defendant had no right to control the treatment provided, that they were responsible for their own tax and NI payments, that they shared the liability for bad debts, that they were required to have in place their own indemnity arrangements, and they had to pay for their own professional clothing and professional development.

Concluding Comments

The decision provides much needed guidance on the application of non-delegable duty and vicarious liability. The judgment on vicarious liability has adopted the common sense approach taken by the Supreme Court in the Barclays Bank case, namely, that an independent contractor is an independent contractor – the judgment will therefore be very welcomed by dental practice owners across the country. It remains to be seen whether the judgment on non-delegable duty will be appealed to the Supreme Court given the wider implications.

It should be noted that there is a distinction between NHS dental treatment and private dental treatment. It is clear from the judgment that the fact the Claimant received NHS dental treatment was of central importance to the judgment on non-delegable duty. Our view is that the judgment would likely have been different had the treatment provided been private treatment.

Clyde & Co are very experienced medical and dental negligence lawyers and have vast experience of dealing with such claims and the tactics to employ to secure the correct results for their clients to avoid needless and expensive litigation when claimants attempt to sue the wrong defendant for no justifiable reason.