Judgment was handed down on 21 July 2021 in the case of Hughes v Rattan. Heather Williams QC (sitting as a Deputy High Court Judge) held that the Defendant was vicariously liable for the acts and omissions of three self-employed associate dentists in respect of the Claimant’s dental treatment at his practice, and that the Defendant owed the Claimant a non-delegable duty of care in respect of this treatment.
Ben Collins QC of Old Square Chambers, instructed by the Dental Law Partnership, acted for the successful Claimant.
The case, taken with two County Court decisions reaching essentially the same conclusion (considered below), has important implications for the way in which dental negligence claims are brought and defended. Traditionally claims have been brought against each individual treating dentist. It may be that, in future, claimants choose to sue practice owners instead. Dental defence organisations have already taken steps to review the way in which they offer cover.
Background
The Claimant brought a claim against the Defendant, the former owner of a dental practice at which she received treatment between 2009 and 2014. The claim arose from NHS dental treatment provided to her by four dentists engaged at the practice, three of whom were self-employed associate dentists. Vicarious liability for the fourth dentist, who was an employee, was admitted.
A preliminary hearing was held 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.
The Defendant provided NHS dental care pursuant to a General Dental Services Contract (“GDS Contract”) with his local Primary Care Trust. The terms of the contract were derived from the NHS (General Dental Services Contracts) Regulations 2005.
In addition, an agreement was in place between the Defendant and each associate. The Defendant, in common with many practice owners, used the British Dental Association’s standard template contract for this purpose.
Non-delegable duty of care
The parties agreed that the question of whether Mr Rattan owed a non-delegable duty of care depended upon the application of the five factors identified by the Supreme Court in Woodland v Swimming Teachers Association [2013] UKSC 66. The first three factors only were in dispute.
The Court did not accept the Defendant’s submission that it was necessary to show that the Defendant assumed 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 and not just a patient of each associate. The practice held her dental records and contact details and arranged her appointments. Payment was made to the practice in respect of a course of treatment. Her NHS treatment was provided and remunerated in accordance with the terms of the GDS Contract. The Court rejected the Defendant’s proposition that a high threshold of vulnerability must be established in addition to showing that the Claimant was a patient.
The second factor was also satisfied: there was an antecedent relationship between the Claimant and the Defendant which placed Mrs Hughes in Mr Rattan’s care in respect of the provision of dental treatment, entailing a positive duty to protect her from harm caused by that treatment.
The Court noted that the existence of a non-delegable duty does not require the Defendant to be in control of the environment where injury is caused by the third party, but rather to have control over the Claimant for the purpose of performing a function for which the Defendant has assumed responsibility. The mere fact that the Claimant was also under the care of the associate while they provided her with dental treatment did not in itself preclude the existence of an antecedent relationship with the Defendant.
The Court noted various aspects of the GDS Contract as relevant. For example, the Defendant:
The Court held that the associate contracts supported the same conclusion. In particular, the goodwill relating to patients treated by the associates at the Defendant’s premises belonged to the Defendant, and a series of post-termination restrictions reinforced that patients were patients of the practice rather than of the associate.
The Court derived further support for her conclusion from the Defendant’s arrangement with the Claimant, which meant that:
The Judge noted that much the same conclusions were arrived at in two recent County Court cases: Rahmdean v Agedo and Breakingbury v Croad.
In respect of the third factor the relevant question was whether the Claimant lacked control over how the Defendant chose to perform the obligations, whether personally or through employees or third parties. Mr Rattan could choose whether to provide the NHS dental services himself or via employees, associates or sub-contractors. At most Mrs Hughes could request, although not insist upon, a particular dentist from that pool of dentists which he had selected to provide dental services at the practice. The fact that the Claimant could choose to reject the services altogether and go to a different dental practice was not in point.
Vicarious liability
The Court held that the relationship between the Defendant and the associates was sufficiently akin to employment to make it fair and just to hold the former responsible for their acts and omissions.
The associates were free to make clinical decisions and provide treatment as they saw fit. They also had freedom over how much they chose to work. Nonetheless, the Judge said that a relatively slight amount of control may suffice:
The Court held that the most significant question was whether the associates were working as part of their own independent businesses or as an integral part of the Defendant’s business when they provided dental treatment at the practice. The associates were free to work at other dental practices too. However, alongside factors already outlined, the Defendant would not have been able to deliver the number of patient sessions required under the GDS Contract had he not recruited the associates. He also bore the substantial majority of the financial risk and potential profits.
The Defendant accepted 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, would be satisfied. Accordingly, vicarious liability was made out.
It remains to be seen whether the Defendant will seek permission to appeal to the Court of Appeal. For the present, taking this decision alongside those in Rhamdean and Breakingbury, those representing claimants will need to give careful consideration whether the best course is to sue the practice rather than the individual dentist.
Case summary written by Daisy van den Berg, Pupil.
