Open Wide: Direct Liability in Dental Practices

It is often the case, in law, that the person who actually commits a tort lacks the means to meet a judgment or otherwise presents as an undesirable Defendant from a Claimant’s point of view. The law has long recognised the strong policy reasons behind forms of distributive justice, most obviously in the case of vicarious liability but also, and more recently, since Woodland v Swimming Teachers Association [2014] AC 537, by the imposition of a non-delegable duty of care. The Court of Appeal has returned to these issues in Hughes v Rattan [2022] EWCA Civ 107. The judgment may be read here.

The Claimant, Iris Hughes, received dental treatment at a practice owned by the Defendant, a dental surgeon. Not unusually, she was never treated by the Defendant himself, but by other self-employed associate dentists who worked out of the same practice. These dentists were not employed by the practice and held their own insurance, as well as meeting their own tax liabilities and working in other practices, if they chose. Since this arrangement is not unusual in dental practices, the case is of interest in relation to the imposition of duties where a number of dentists work, on a self-employed basis, from a single practice which is owned only by one of them. 

A number of facts were agreed, and may be summarised as follows:

1. NHS dental care was provided at the practice pursuant to a contract between the Primary Care Trust and the Defendant, by which the Defendant contracted to provide dental services to patients at the practice;
2. the other dentists (with one exception) were engaged by the Defendant as associate dentists pursuant to associate agreements and were not employed under a contract of employment;
3. in respect of NHS work, these dentists were also performers under the contract with the Primary Care Trust;
4. each of the dentists personally held professional indemnity cover for negligence claims, paid their own tax and National Insurance and did not receive sick pay or a pension; and
5. each of the dentists was responsible for the standard of their own work, had clinical control over the dental treatment provided and could work elsewhere if they chose to do so.

New patients attending the practice completed a medical history form and were provided with a “Personal Dental Treatment Plan” in respect of each course of treatment, headed “Provider’s Details“, which bore the Defendant’s name. When making a booking, a patient would be asked if they wanted to be seen by a particular dentist and, if not, would be allocated to their usual dentist, or an alternative if that dentist was unavailable.

The Claimant alleged negligent treatment at the hands of the various dentists in the practice. 

At first instance, Heather Williams QC (as she then was), sitting as a Deputy Judge of the High Court, found the Defendant was vicariously liable to the Claimant and also owed a direct non-delegable duty of care. Philip Davy reported on the original decision here.

The Defendant appealed, challenging both conclusions.

Bean LJ, giving the only judgment in the Court of Appeal, with which Nicola Davies and Simler LJJ agreed, directed himself at [50] by reference to Woodland as follows: 

“Woodland is now the leading case on non-delegable duties of care. At paragraph 23 Lord Sumption identified five cumulative factors (“the Woodland factors”) which indicate the existence of such a duty:-

“(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 a 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 Defendant contested the first three, accepting that, if those were established, the fourth and fifth factors would be made out.  

Directing itself that the judge was right to treat the Claimant as a patient of the Defendant’s practice, as a matter of law, the Court of Appeal went on to conclude that the Claimant was thus a patient in the everyday sense of the word. Lord Sumption had identified patients as a category of person falling within the first factor, being someone vulnerable or dependent upon the protection of the Defendant against the risk of injury (as is the case when a patient receives treatment from a medical professional). The second factor was also made out. The Claimant was required to sign a Personal Dental Treatment Plan before receiving any NHS treatment, which placed her in the actual care of the Defendant as the owner of the practice. The duty thus was personal to the Defendant. Finally, the Claimant lacked control over how the Defendant performed those obligations. The extent of her involvement lay in the expression of a preference as to which Associate Dentist she would like to see, but it went no further. Like any patient she could refuse to be seen by someone, or refuse treatment, but that was different to what was anticipated by the third factor. 

In the circumstances the Defendant owed a non-delegable duty of care to the Claimant and was liable for the negligent treatment provided by the other dentists.  

It will be recalled that the imposition of a non-delegable duty in Woodland arose because the negligent swimming teacher was not employed by the Defendant education authority. No question of vicarious liability arose and the non-delegable duty thus filled the gap which woud otherwise have left the Claimant uncompensated.

Having determined that a non-delegable duty of care was owed in Mrs Hughes’ case, the Court of Appeal did not need to go on and consider vicarious liability, but it did so, acknowledging that the claim was in the nature of a test case. This area of the judgment is thus of particular interest, even though obiter. Directing itself in accordance with Various Claimants v Barclays Bank plc [2020] AC 973, the Court of Appeal asked whether the tortfeasor was carrying on business on his own account, or was in a relationship akin to employment citing the Christian Brothers case (Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1). Here the Court of Appeal differed from the judge at first instance. The Barclays Bank case was of particular importance, emphasising as it did the absence of vicarious liability for self-employed subcontractors. The focus, thus, was on the contractual relationship between the tortfeasors and the Defendant. It was of particular importance that the associate dentists could choose how many hours they worked, and were able to work for other dental practices, if they chose to do so (some did). The Defendant had no control over their clinical judgment and in terms of financial arrangements, they took sole responsibility for tax and National Insurance and were regarded as independent contractors by HMRC. Each held their own professional indemnity insurance and met their own expenses for equipment which was not provided by the practice. Whilst there were factors which pointed the other way, the Court of Appeal did not consider those to be determinative and, in the circumstances, vicarious liability did not arise. 

The issues of direct non-delegable duties and vicarious liability have visited the Supreme Court on numerous occasions over the last 20 years. As this case is of some importance in relation to claims against dental practitioners, it may be that the issue will interest the Supreme Court again. In the event that the decision is appealed, developments will be reported on this blog.