On 4 February the Court of Appeal handed down the latest decision in a series of cases addressing the issues of vicarious liability (VL) and non-delegable duty of care (NDDOC).
This area of law has, in recent years been litigated particularly in dental negligence cases. The decision comes hot on the heels of the Court of Appeal’s decision in Pawley v Whitecross Dental care Limited and Petrie Tucker and Partners Limited which was covered in this blog last December.
The Pawley case was concerned with the procedural mechanism by which Associate dentists might be added to proceedings. The Court of Appeal in Hughes turned its attention to the more fundamental question of whether a practice owner was VL or had a NDDOC to a patient in relation to treatment provided by Associate dentists engaged at the dental practice.
Prior to the Court of Appeal’s decision in Hughes there had been two County Court decisions (Ramdhean v Agedo and Breakingbury v Croad) which held that a practice owner did owe patients a NDDOC and was VL for the Associates. The same conclusion was reached in Hughes prior to it arriving in the Court of Appeal,
This line of cases has caused great unease especially for dentists and practice owners as most dentists working under these arrangements considered that they were self employed and that they were liable to patients for the standard of the care they provided. Practice owners also took the view that they were providers of the premises and staff in terms of dental nurses, reception staff etc, but that the responsibility for the standard of care provided lay with the treating professional. The insurance and indemnity arrangements put in place reflected that – with dentists arranging cover for any claims arising out of their negligent treatment. Often practice owners, unless they were treating dentists themselves, had none.
As a result, the prospects for practice owners facing a liability they were uninsured for, and for injured patients being unable to recover in full, from practice owners for their injuries became a distinct possibility.
Hughes – the facts
The claimant was provided with NHS dental treatment at the practice of Dr Rattan between 28 August 2009 and 6 November 2012. Over that time she was treated by several different dentists, one of whom was an employee and it was accepted that the practice was VL for his acts or omissions.
The other dentists were engaged on contracts for services and were on the NHS performers list. They carried their own indemnity cover. They were responsible for their own tax and national insurance payments and were responsible for the standard of their own work.
The contractual arrangements in place did not provide for the payment of sick pay or provision of a pension, and the dentists were responsible for their own clinical audits.
At the time of the treatment Dr Rattan did not have indemnity in place but this had altered by the time of the hearing in the High Court, such that cover by his indemnifier for VL and NDDOC was available to those with three or less practices. In addition, Dr Rattan was entitled to a contractual indemnity from the dentists in relation to losses arising from their negligent treatment.
There was a lot of discussion at the hearing as to whether the claimant was a patient of the practice or the individual treating dentists. The facts around that issue were closely examined. Whether a patient might be construed as a patient of an individual practitioner, or a practice will inevitably vary from case to case and may be dependent in part on whether the treatment is provided under the NHS or privately, the history of the patient’s relationship with the practice or any individual as well as the wording of the contract in place regarding the treatment actually provided.
In Hughes, Dr Rattan was the GDS contract provider (the dentists being the performers) and the Personal Dental Treatment Plan referred to Dr Rattan as the provider.
The Court of Appeal analysed the wording of the GDS contract and the responsibilities it placed on Dr R as the holder of the GDS contract and also the terms of the Associate’s contracts with the practice.
The decision of the Court of Appeal
The Court of Appeal decided that Dr Rattan was not, on the basis of the facts of the case VL for the treating dentists alleged negligent treatment.
Various significant factors were highlighted in their decision making namely:
- The Associates were free to work as many or as few hours as they wished.
- They were free to work elsewhere
- The defendant did not control and had no right to control their clinical judgments or the way they did their work
- The Associates chose which dental laboratory they wished to use and shared in the costs of the laboratory fees
- They were responsible for their own tax and National Insurance payments
- The Associates shared the risk of bad debts
- The Associates were obliged to carry their own indemnity and to indemnify the Practice owner
Dr Rattan was however held to owe the patient a non delegable duty of care by reason of the fact that:
- She was a patient of the practice,
- The personal dental treatment plan named Dr Rattan
- Under the Associates’ agreements the patients were described as patients of the practice
- An antecedent relationship for the purposes of the test in Woodland was made each time the patient signed a Personal Dental Treatment Plan
Whether liability for the alleged negligent acts or omissions of a dentist will fall on a practice owner or on the individual dentists in any particular circumstance is going to continue to be largely a factual question. Whilst the arguments for VL have been weakened uncertainty remains.
In any case presented pleading the existence of a non delegable duty it seems more likely that such a duty will be found, but again all will turn on the facts.
Both sides to the case have signalled that they are contemplating a further appeal.
How will claimants and their advisors react to this decision? Will claimants now seek to sue both the practices and the individual dentists? What will the courts make of claimants who pursue practice owners via what is said to be the exceptional jurisdiction of NDDOC, where it is clear the liability for the alleged negligent acts lies with the individual dentist?
Given the continuing uncertainty both practice owners and individual dentists continue to face risks they should cover with adequate indemnity or insurance arrangements.
The spotlight also remains on the contracts in place around the arrangements by which dentists are engaged. Clarity between practice owners and associate dentists around their indemnity arrangements at the point of contracting and in the event of a claim remains a high priority.
Finally, it should be noted that these are not issues confined to dentistry and they do cause issues in other healthcare arrangements.