Iris Hughes v Rajendra Rattan EWCA Civ 107: relieving the Claimant’s toothache
This recent Court of Appeal decision provides clarity as to the application of a non-delegable duty and vicarious liability of dental practice owners when negligent treatment is provided to patients by associate dentists.
The Court of Appeal confirmed that a claimant can bring a single claim of negligence against the dental practice rather than have to bring a claim against each individual associate dentist. However, it should be noted that this only applies to NHS dental treatment, and it is the author’s opinion that a different approach could betaken by a court in relation to private dental treatment.
In light of this decision, it is important that the owners of dental practices review their contractual agreements with their associate dentists. This will ensure that they continue to have appropriate contractual protection in the event that a claim under anon-delegable duty and/or vicarious liability is made against them.
Dr Rattan was the owner and sole principal dentist at the Practice where the Claimant, Mrs Hughes, received NHS dental care. Dr Rattan engaged three Associate Dentists, who were considered Performers under the General Dental Services Contract (GDS) (derived from the NHS (General Dental Services Contracts) Regulations 2005).
NHS patients at the Practice were provided with a ‘Personal Dental Treatment Plan ’in respect of each course of treatment, indicating the diagnosis, and proposed treatment. The top of the form had a field for the ‘Provider’s details’ which Dr Rattan stated would have contained his name. No other dentist was named on the form.
Between28 August 2009 and 6 November 2012, Mrs Hughes was treated by three Associate Dentists at the Practice. Mrs Hughes brought a claim under common law negligence. The question that the court was required to address was: Are dental practices, which service NHS General Dental Services Contracts, liable for negligence by associate dentists whom they engage?
Heather Williams QC, sitting as Deputy High Court Judge, held that Dr Rattan owed anon-delegable duty to Mrs Hughes. When considering the issue of a non-delegable duty of care, the Judge, at paragraph63, had regard to the five cumulative factors as identified by Lord Sumption at paragraph 23 of Woodland v Swimming Teachers Association and others UKSC 66,  AC 537.
The Judge found, in relation to the first factor, that Mrs Hughes was a patient of the Practice and not just a patient of each of the Treating Dentists when they provided dental treatment to her. In relation to the second factor, it was held that there was an antecedent relationship between the Claimant and the Defendant; which was supported by the arrangements made between the Claimant and the Practice, the terms of the GDS Contract, and the nature of the Associate Agreement. As to the third factor, the Judge held that Mrs Hughes could request but not insist upon a particular dentist. It was irrelevant that Mrs Hughes could reject the services altogether.
In relation to the fourth and fifth factors it was accepted by the Defendant that if the first three factors are established on the facts, then these factors would also be satisfied.
Heather Williams QC, at paragraphs 79-82, 87 and 88, identified “the essence of what makes a person an employee and, in turn, what can render a relationship sufficiently akin to employment for these purposes”. She concluded, at paragraph 129, that the relationship between Dr Rattan and the associate dentists was sufficiently akin to employment to make it fair and just to impose vicarious liability, giving her extensive reasons at paragraph 128.
Dr Rattan appealed against the first instance decision both as to a non-delegable duty and vicarious liability.
In the judgement given by Bean LJ it was held at paragraph 68 that “the judge was clearly right to hold that Dr Rattan was under a non-delegable duty of care to the Claimant in respect of the treatment she received at the Practice.” He reached this conclusion for a number of reasons.
First, the Personal Dental Treatment Plan signed by the Claimant named Dr Rattan as the Provider of the treatment. This document is consistent with the provisions of the GDS Contract. It is also consistent with the terms of the Associate Agreements under which patients are described as "patients of the Practice".
Secondly, the judge was right to find that the Claimant satisfied all the factors identified by Lord Sumption at paragraph 23 of Woodland.
Bean LJ reached a different decision as to that of Heather Williams QC on the issue of vicarious liability. The reasons given for his conclusion are at paragraph 89, but he stated that the first twoare the most significant, which are that:
(1) The Associate Dentists were free to work at the Practice for as many or as few hours as they wished.
(2) They were also free to work for other practice owners and business, and some in fact did so.
However, the appeal was dismissed in light of the Court’s conclusion in relation to the non-delegable duty ground of appeal.
This judgment can be read in conjunction with the Court of Appeal of Pawleyv Whitecross Dental Care Ltd  EWCA Civ 1827. It was held that the Claimant is entitled to decide who they will sue, and what cause of action they will pursue against the Defendant. However, the court acknowledged that there may be exceptional circumstances in which a party is joined as a Defendant against the Claimant’s wishes.