Vicarious Liability and the Non-Delegable Duty in the Context of Dental Negligence Claims: Hughes v Rattan

For several years in the 2000s and 2010s, the law relating to vicarious liability and non-fault liability more generally was ‘on the move’.

However, in the last couple of years, the case law dealing with non-fault liability has been far less fruitful for claimants (e.g. Barclays Bank Plc v Various Claimants [2020] UKSC 13; SKX v Manchester City Council [2021] EWHC 782 (QB)).

So the decision of Heather Williams QC (sitting as a Deputy High Court Judge) in the case of Hughes v Rattan [2021] EWHC 2032 (QB) provides an early sign that the tide may be turning back in favour of claimants, at least in the context of medical negligence claims.

An early consideration in any medical negligence claim is often ‘who to sue’.

Whereas often the answer to that question is straightforward (ie. sue the dentist who carried out the treatment, assuming they have insurance cover, or sue the NHS Trust which employed the allegedly negligent doctor under the well-established doctrine of vicarious liability), occasionally issues can arise meaning one has to look elsewhere for a potential paymaster.

Occasionally, issues arise as to insurance coverage, the retirement or death of the dentist or GP in question, or the status of the allegedly negligent practitioner (e.g. ‘self-employed’ versus ‘employed’ practitioners, or the position of a locum GP etc.), which complicate a claim directly against the practitioner themself.

In those cases, the question arises: can the claimant sue the owner of the medical practice involved?

The decision in Hughes v Rattan answered that question with a resounding ‘yes’, and confirmed that the claimant could in law pursue the owner of the dental practice in that case both in reliance upon the doctrine of vicarious liability and under the concept of the ‘non-delegable duty’.

The dentists criticised in that case by the Claimant were termed ‘self-employed associated dentists’ of the practice. The judgment of 134 paragraphs benefits from reading in full, if time allows, but in summary:

Vicarious Liability: The question was whether the first limb of the test (was the relationship between the owner of the practice and the ‘associate dentists’ sufficiently akin to employment?) was satisfied on the facts. The Judge held that it was. The Defendant had already conceded that, if the first limb was satisfied, the second limb (sufficiently close connection between that relationship and the tortfeasor’s wrongdoing) would also be satisfied.

Non-delegable Duty: It was relevant to consider the five factors identified by Lord Sumption in Woodland v Swimming Teachers Association [2013] UKSC 66. The Defendant had conceded that the fourth and fifth were met. The Judge found that the first (vulnerability of the claimant to the risk of injury), the second (antecedent relationship between the Claimant and the Defendant which placed the Claimant in the Defendant’s care, entailing a positive duty to protect the Claimant from harm), and the third (whether the Claimant lacked control over how the Defendant chose to perform the obligations, whether personally or through employees or third parties) were also met.

Thus, the claim was decided in the Claimant’s favour on the preliminary issue of whether a duty of care was indeed owed by the practice owner to the Claimant (a patient of the practice), at law, and the underlying claim will presumably now be settled or proceed to a full trial.

It will be interesting to see if the Defendant appeals against this decision.