Vicarious Liability and Non Delegable Duty

Following on from Faisal Dhalla’s article I am going to take a look at the recent flood of case law in vicarious liability and nondelegable duty which also affects dentists and, in the main, dental practice owners.

There is some synergy between the two, in that the level of control exerted between the practice owner and associate dentist is used by HMRC to determine (amongst other things) whether the associate is self-employed. The Courts also study this relationship to decide whether vicarious liability and/or a non-delegable duty arises. Therefore, an understanding of one lends itself to a greater insight into the other.

What has changed?

In recent months the Courts have shone a spotlight on the rather precarious position practice owners (current and former) now find themselves in concerning patients who are harmed because of clinically negligent treatment provided by self-employed dentists who work, or may have worked, at their practice. Historically the accepted view had been that self-employed associate dentists were, by and large, responsible for making good any damage caused to patients because of negligent treatment they provided. However, recent jurisprudence has turned this thinking on its head.

In January 2020 Leeds County Court considered the (unreported) case of Ramdhean v Agedo and the Forum Dental Practice Limited 2020 WL 00620352 (“Ramdhean”). Following hot on its heels is the other widely publicised County Court decision of Breakingbury v Croad (19 April 2021, Cardiff County Court) (“Breakingbury”). Both cases grappled with the concepts of vicarious liability and non-delegable duty in circumstances where the treating dentist, a self-employed associate, caused damage to the patient because of substandard treatment.

Ramdhean – turning of the tide

In the case of Ramdhean the treating dentist had indemnity but did not notify his indemnifiers of a possible claim, and cover was declined. To avoid having no hope of an effective remedy, the claimant argued the practice (a body corporate) was liable for the failings of the self-employed dentist by reason of vicarious liability and a non-delegable duty towards the patient.

Test for Non-Delegable Duty

The parties agreed that the Supreme Court decision in Woodland v Swimming Teachers Association & Others [2013] UKSC 66 (“Woodland”) is the authority for establishing whether a non-delegable duty applied to the patient. Some of the issues considered by the Court were as follows; –

• Is the Claimant a patient or child or for any other reason considered to be vulnerable? The Claimant was clearly a patient. Furthermore, she was considered a patient of the practice, not of the self-employed associate by reason of the fact the practice held her records and contact details, it was responsible for arranging appointments and processing payments.
• Is there an antecedent relationship which places the Claimant in the control of the Defendant? The Court looked to the contract to provide dental services between the practice and PCT (as it was known at the time) to decide whether there was a sufficient antecedent relationship between the parties (second factor). It decided there was as the practice was the contract holder. The practice was the holder of patient records, it booked appointments and processed payments. The practice supplied equipment and nursing staff necessary to carry out the dental services.
• Does the Claimant lack control over how the dental services were performed? The Court established the Claimant didn’t have any control over the way in which the practice performed its duties under the contract, other than to express a preference for a particular dentist. They could not insist upon a specific dentist.

The Court concluded it was reasonable to find that a non-delegable duty of care existed towards the patient.

Test for Vicarious Liability

Turning to vicarious liability, the principles set out in the Supreme Court decision of Various Claimants v Barclays Bank plc [2020] UKSC 13 are authoritative. The Court considered whether the relationship between the practice and the self-employed associate dentist was “akin to employment”. It was found it was. Notably, a small amount of control was found to be sufficient to justify various liability, even where the associate could make clinical judgements and provide treatment as they saw fit. The Court was also concerned about whether the associate was integral to the running of the practice’s business or independent. It relied upon several factors to find it was.

The practice was also found to be vicariously liable to the patient for the clinical failings of the treating dentist.

Although the Breakingbury case was not bound by the findings in Ramdhean, the Court came to the same conclusion in finding against the practice.

Hughes v Rattan – mixed fortunes

These legal principles were considered in this context by the High Court for the first time in July 2021 in the case of Hughes v Rattan [2021] EWHC 2032 (QB). The Court was asked to examine whether the former practice principal should be liable for the damage caused to a patient because of negligent treatment provided by 3 separate self-employed dentists at the practice.

Importantly you might think at no point had the principal provided any treatment to the patient and, crucially, the associates’ indemnity bodies indicated to the claimant’s solicitors their willingness to support the associates if sued. Nevertheless, the claim was maintained solely against the practice principal.

In short, the Preliminary Court determined the practice principal was vicariously liable and had a non-delegable duty for the failings of others working there.

Dr Rattan appealed the decision to the Court of Appeal and the Appeal Court’s decision was published on 5 February 2022. It found with Dr Rattan regarding vicarious liability, ruling (obiter) that no such duty applied. Having assessed the level of freedom the associates experienced at the practice; it held the relationship was not “akin to employment”.

However, the decision remained that a non-delegable duty applied. The Court’s reasoning centred around the principles laid down in Woodland and focussed largely on the patient’s signed Treatment Plan to provide NHS treatment (as required under the NHS GDS contract). The Treatment Plan stated that “the dentist named on this form is providing you with a course of treatment”, naming only Dr Rattan. The Court was persuaded the patient was a patient of the practice, and not the associate dentist.

Doubtless this case turned on its own facts although it is authority for the departure of the presumption that a non-delegable duty only applies to hospital cases, as has been the case in the past.

What does the future hold?

It is still unknown whether this case will be appealed to the Supreme Court, by either side. Whatever, it remains a hot topic and until there is more certainty there are various steps that may be taken to try to protect and/or mitigate against the risk that healthcare providers will be held liable for actions of independent contractors.

First and foremost, providers need to ensure they have appropriate cover to protect from litigation for vicarious liability and/or non-delegable duty. Careful attention also needs to be given to the associate contract to ensure appropriate indemnity provisions are in place. In practical terms, providers should also ensure their independent contactors’ indemnity is checked and verified on an annual basis, to include run off cover if their indemnity is on a claims made basis. Careful advice and consideration now may make all the difference in the future.