2022-02-15 14:37:03
In Hughes v Rattan [2022] EWCA Civ 107, the Court of Appeal has ruled on the liability of the owner of a dental practice when dental associates negligently cause injury to a patient. The status of self-employed dental associates bears similarities to the status of locum pharmacists.
The Court was asked to rule whether the owner of a dental practice had a non-delegable duty of care to patients, so that breach of the duty of care by an associate was to be treated as if the owner had been negligent. The court was also asked to rule whether the owner of a dental practice was vicariously liable for the negligence of dental associates who worked there.
Non-delegable duty of care
The holders of NHS dental contracts are expressly allowed to sub-contract their obligations under the contract or to employ or engage other dentists to carry out dental treatment. In the leading case on non-delegable duty of care, Woodland v Swimming Teachers Association [2013] UKSC 66, there was no employer who could be held vicariously liable and the Supreme Court had held that there were certain types of case where, even though an activity may be delegable, its delegation made no difference to the legal responsibility for the performance of the activity. A non-delegable duty arises because of a special relationship between a claimant and the alleged tortfeasor. A particular example given in the cases is where the claimant is a patient. The point has been argued in claims against hospitals. The non-delegable duty in these cases is a positive duty to protect the patient from injury, not simply to avoid acting in a way that foreseeably causes injury. It involves cases where there is an element of control over the patient.
Vicarious liability
The Court of Appeal’s decision on vicarious liability may surprise some readers. The first instance judge had held that the owner of a dental practice was vicariously liable for the negligent acts or omissions of dental associates. The Court of Appeal overruled this decision. It looked at the Supreme Court decision in Barclays Bank plc v Various Claimants [2020] UKSC 13 (see PLEA News, 6 April 2021) and sought to apply the test of whether the tortfeasor was “in a relationship akin to employment with the defendant”. Amongst other things, the Court of Appeal took into account:
- The dental associates were free to work at the practice for as many or as few hours as they wished;
- They were free to work for other practices and some of them did so;
- The practice owner had no control over the clinical judgements the dental associates made;
- The dental associates were responsible for their own tax and national insurance payments;
- The dental associates were required to carry professional indemnity insurance;
- The dental associates had to pay for their own professional development;
- There was no disciplinary or grievance procedure.
These features are also common to many arrangements between pharmacy owners and locum pharmacists. Indeed, they are criteria commonly used to determine whether locums are correctly treated as self-employed. If not, HMRC may claim that the locums are, in reality, employees. The approach of the Court of Appeal seems to have been not whether the relationship between owner and dental associates was “akin to employment” but whether the law would designate the dental associates as employees or self-employed – and, if self-employed – the owner would not be vicariously liable.
Strictly speaking, the Court of Appeal’s view on vicarious liability in Rattan was obiter because the court’s principal decision was that there was a non-delegable duty of care and a further ruling on vicarious liability was not strictly necessary. If the decision in Rattan were to be followed in a case of a negligent locum pharmacist, it seems possible that the owner of a pharmacy who has not been negligent may be held to owe a non-delegable duty of care to a patient who is injured as a result of negligence by a locum pharmacist. However, the position is uncertain because the cases in which the existence of a non-delegable duty of care has been argued have been brought against hospitals on the basis that the hospitals had undertaken to care for their patients. In the Rattan case, the Court of Appeal left open the question whether the non-delegable duty of care applied only to the treatment of a patient or whether it would also extend to negligent advice. The Rattan decision gives rise to uncertainty that a pharmacy owner may be held not to owe a non-delegable duty of care when a locum pharmacist is negligent, and may not be vicariously liable for the locum’s negligence either.