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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Hughes v Rattan (Rev1) [2021] EWHC 2032 (QB) (21 July 2021) URL: https://www.bailii.org/ew/cases/EWHC/QB/2021/2032.html Cite as: [2021] EWHC 2032 (QB), [2021] WLR(D) 405, (2021) 181 BMLR 189, [2022] 1 WLR 194 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
____________________
MRS IRIS HUGHES | Claimant |
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| - and - |
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MR RAJENDRA RATTAN | Defendant |
____________________
Neil Davy (instructed by Dental Protection Limited Leeds) for the Defendant
Hearing dates: 9 & 10 June 2021
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
Heather Williams QC (sitting as a Deputy High Court Judge):
Introduction
Rattan,
the former owner of the Manor Park Dental Practice ("the Practice"). The claim arises from NHS dental treatment provided to the Claimant, Mrs
Hughes,
by four dentists engaged at the Practice, Drs Shahin Boghani, William Beattie, Rubina Fur and Yavar Khan. Dr Khan was an employed assistant dentist; the others were self-employed associate dentists. I will refer to the four collectively as "the Treating Dentists" and to the three associates as "the Associate Dentists". Save as I indicate in paragraph 3 below, the Defendant contends that as a matter of law he is not liable for the acts and omissions of the Treating Dentists.
"Whether the Defendant is liable for the acts or omissions of Drs Shahin Boghani, William Beattie, Yavar Khan and Rubina Fur byvirtue
of
vicarious
liability or a non-delegable duty of care."
vicariously
liable for the acts and omissions of Dr Khan as at the relevant time he was a trainee engaged under a contract of employment. Aside from that, the preliminary issues remain in dispute and were listed for hearing before me. I emphasise that I am solely concerned with determination of the preliminary issues and not with the merits of the alleged negligence.
v
Swimming Teachers Association and others [2013] UKSC 66, [2014] AC 537.
vicarious
liability question, the issue is whether the relationship between the Defendant and the Associate Dentists was sufficiently akin to employment to make it fair and just to hold the former responsible for their acts and omissions. As confirmed by the Supreme Court in
Various
Claimants
v
Barclays Bank plc [2020] UKSC 13, [2020] ICR 893, this is the first of two criteria that must be shown when
vicarious
liability is in issue. The Defendant accepts that if this relationship criterion is met, then the second limb of the test, concerning the closeness of the connection between the relationship and the alleged wrongdoing, is satisfied.
v
Agedo and another, unrep. 28 January 2020 and Breakingbury
v
Croad, unrep. 19 April 2021, have considered similar issues, both finding in the respective claimant's favour. I am told that there has been no appeal from either of those decisions.
The factual circumstances
Agreed and disputed facts
"1. Between 28 August 2009 and 1 December 2015 the Claimant was a patient who attended at the Manor Park Dental Practice, 88 Manor Park Road, West Wickham, Kent, a dental practice owned by the Defendant, for consultations and dental treatment.
2. Between 28 August 2009 and 6 November 2012 the Claimant was provided with NHS dental care at the practice by 4 dentists, Dr Shahin Boghani, Dr William Beattie, Dr Rubina Fur and Dr Yavar Khan.
3. On first attending at the Practice the Claimant was asked to fill out a form at reception.
4. NHS dental care was provided at the Defendant's practice pursuant to a Contract between the PCT and the Defendant (the General Dental Services Contract) under which the Defendant contracted to provide dental services to patients at the practice. The GDS Contract provided for an annual quantity of courses of dental treatment (and, after
variation,
time spent on dental treatment) to be provided to patients at the practice. The GDS Contract allowed the Defendant as Contractor to sub-contract his obligations arising under the Contract, alternatively to employ or engage other dentists to carry out the dental treatment (styled Performers under the Contract).
5. Dr Khan was a trainee at the relevant time and was employed by the Defendant as an assistant dentist pursuant to a contract of employment for
vocational
training. In respect of NHS work he was also allocated to be a Performer under the GDS Contract.
6. Drs Shahin Boghani, Dr William Beattie, and Dr Rubina Fur were engaged by the Defendant as associate dentists pursuant to associate agreements. They were not employed under contracts of employment with the Defendant. In respect of NHS work they were also Performers under the GDS Contract.
7. The Claimant was a patient of Dr Boghani, Dr Beattie, Dr Fur and Dr Khan whilst undergoing treatment provided by them.
8. Dr Boghani, Dr Beattie, Dr Fur and Dr Khan:
8.1 Each personally held professional indemnity cover for negligence claims.
8.2 Were responsible for the standard of their own work.
8.3 Were responsible for their own tax and national insurance contributions.
8.4 Did not receive sick pay or pension from the Defendant.
8.5 Had complete clinical control over the dental treatment provided to the Claimant at each of their consultations.
8.6 Could work for other owners or businesses if they wanted.
8.7 Were responsible for their own clinical audits of their patients."
vicarious
liability basis. Paragraph 9 of the Agreed Facts also recorded that the Defendant is contractually entitled to an indemnity from each of the Associate Dentists.
Hughes
was a patient of the Practice at the relevant times was in issue. Further, the Claimant's account was: (i) at no time did she choose which dentist treated her. She was simply given an appointment with a named dentist. She did not know which dentist she would be seeing until she was called through to the surgery; (ii) she made her appointments at reception, not with the individual dentists and saw whichever dentist was allocated to her when she arrived; (iii) she made her payments at reception, never to any individual dentist; and (iv) as far as she was concerned she was a patient of the practice.
The Defendant and the Practice
Hughes
at any stage. Mr
Rattan
owned the premises and the equipment used at the Practice. He directly employed the reception staff and the practice nurses. During the period 2009 – 2012 approximately 70% of the Practice turnover was NHS work.
The GDS Contract
value
of the Defendant's contract was £498,877. The contract sum was paid to him in 12 monthly instalments.
varied
in June 2011 as the Practice took part in a new pilot scheme. In short, the payment arrangements were amended so that some payments were to be made by the PCT to the Contractor on the basis of time spent, known as "sessions" (either a morning or an afternoon), rather than for the number of UDAs completed. It is unnecessary to detail this further as the parties are agreed that it does not impact upon the determination of the preliminary issues.
The Associate Dentists
i) Warranted that s/he was self-employed (clause 5.3);
ii) Would keep the Practice Owner indemnified from and against all costs and judgments which the latter suffered as a consequence of the direct breach or negligent performance or failure in performance by the Associate; and
iii) Agreed to inform the Practice Owner of any complaints, claims or NHS investigations against him / her and co-operate with the Practice Owner in relation to the handling of such matters.
vary
their hours of work at the Practice within the hours that it was open and the surgeries and staff were available. Clause 18 said that the Practice Owner would not: "place any restriction on the NHS patients that the Associate may attend or the types of treatment that he or she may provide save that all patients treated and treatment provided must be in accordance with" the Practice Owner's GDS Contract.
"The goodwill relating to patients treated by the Associate at the premises belongs to the Practice Owner and the Associate shall not inform such patients of the new practising arrangements before or after termination of this Agreement nor seek to disclose details of his private or NHS lists of patients to a third party".
"For a period of 24 months from the date of his/her ceasing as aforesaid carry on practice as a general dental practitioner at premises situated within a radius of 2 miles of [the address of the Practice premises] whether as an associate, locum tenens, or contractor or performer in the General Dental Services / Personal Dental Services…(sub-clause (i))
For a period of 24 months from the date of his ceasing as aforesaid within a radius of 2 miles from and whether as associate locum tenens or contractor or performer in the General Dental Services / Personal Dental Services provide any professional service of any kind normally provided by a general dental practitioner to any person who was at the date of his so ceasing or had been at any time within the period of twelve months prior to his so ceasing, a patient of the Practice as defined in clause 40(b) (sub-clause (ii))
For a period of 24 months from the date of his ceasing as aforesaid solicit in any manner or any person who was, at the date of his so ceasing, a patient of the Practice to the intent that such person should become a patient of the Associate as a general dental practitioner or of any practice of general dental practitioners in which the Associate is a partner associate locum tenens, contractor or performer (sub-clause (iii))
Advertise within the Restricted Area the Performers [sic] services as a dental practitioner (sub-clause (v))."
Rattan
described Dr Beattie working two or three days a week for another practice and Dr Fur as having undertaken work for another practice during part of the 2009 – 2012 period.
Dr Yavar Khan
vocational
trainee at the Practice between 1 September 2012 and 31 August 2013. He was employed by the Defendant under a nationally agreed contract of employment supplied
via
the London Deanery. Dr Khan was paid a nationally agreed salary which Mr
Rattan
claimed back from the NHS. He was the only employed dentist working at the Practice.
Patients and patient record-keeping
Rattan
said this box would be completed with a stamp bearing his name. Under the field for inclusion of the patient's details, the text read: "The dentist named on this form is providing you with a course of treatment. Information regarding your NHS dental treatment is detailed overleaf".
The Claimant
Hughes
was born on 21 October 1956. She first attended the Practice on 28 August 2009 as she required a filling. She selected the Practice on the recommendation of her daughter, who accompanied her on that occasion. On attendance she was asked by the receptionist to fill out a form and duly did so. Unsurprisingly, the Claimant perceived this as a registration process. In all likelihood she completed a medical history form (see paragraph 50 above). The form from 2009 is no longer available, but Mrs
Hughes
agreed that it was similar to a medical history form in the bundle which she subsequently completed on 1 April 2014.
Hughes
said in her oral evidence that her daughter had recommended a dentist at the Practice called "Andy", but when she arranged the appointment she was told that he was fully booked. She said the receptionist did not tell her when she made the booking who the appointment would be with and that she first knew that her dentist on that occasion would be Dr Fur when she came to get her from the waiting room. She said that after her treatment Dr Fur told her she would need a follow-up, so she made an appointment at the reception desk to see Dr Fur again. She paid at the receptionist desk at the end of her appointment.
Rattan
agreed that all appointments were made
via
the Practice reception staff. He said that the normal procedure was for the receptionist to tell the person making the booking, the name of the dentist they would be seeing as well as the date and time of the appointment. He had no direct knowledge of whether this had been done with the Claimant either for her first appointment or on subsequent occasions.
various
dentists at the Practice would not have been familiar to her at the time, it strikes me as difficult for Mrs
Hughes
to be confident that she was not given the name of Dr Fur before she attended on the first occasion. In any event my conclusions do not depend upon resolving that particular point of dispute.
via
her daughter about the number of different dentists she had been seen by. She agreed that her request to be seen by the same dentist for each appointment was then adhered to. Prior to that, Mrs
Hughes
had not asked to be seen by a particular dentist. I accept that if she had made such a request it would have been honoured in so far as it was practically possible to do so, as shown by the arrangements subsequently made in respect of Dr Mehta. Her appointments were organised centrally by the reception staff who handled all of the administration tasks and allocated her an available dentist. Mrs
Hughes
saw a number of different dentists for the reasons identified by Mr
Rattan.
As I have indicated in relation to the first appointment, I do not find it necessary to decide whether the Claimant was told who she would be seeing at the time when she made the
various
bookings or subsequently when she attend the Practice for the appointments.
Hughes
considered that she was a patient of the Practice.
Applicable law
Non-delegable duties of care
v
Swimming Teachers Association and others [2013] UKSC 66, [2014] AC 537 ("Woodland") at para 4:
"Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed tovicarious)
liability for what others do or fail to do…The expression 'non-delegable duty' has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others."
"First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is byvirtue
of that relationship personal to the defendant."
"The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant's. Its delegation makes no difference to his legal responsibility for the proper performance of the duty which is his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully."
vulnerability
of the claimant, the existence of a relationship between the claimant and the defendant by
virtue
of which the latter has a degree of protective custody over him, and the delegation of that custody to another person" (para 11). Lord Sumption then reviewed the circumstances in which non-delegable duties had been held to arise, including cases involving injuries sustained by employees, by school pupils and by hospital patients. I will return to the latter category.
"(1) The claimant is a patient or a child, or for some other reason is especiallyvulnerable
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 preform 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."
v
Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355 ("Armes") that where the Woodland factors were established, it was not routinely necessary for the judge to ask what would be fair and just as a second stage of the analysis (para 36).
The hospital cases
v
Essex County Council [1942] 2 KB 293 ("Gold"), a case where a
voluntary
hospital operated by a local authority was held liable for the negligence of a radiographer employed by it. The main issue concerned
vicarious
liability, but Lord Greene MR considered more broadly the basis of the hospital's liability for the negligence of those through whom it discharged its duty of care to patients. At p. 301 he said that whether the relationship was contractual, as in the case of a nursing home operated for profit, or non-contractual, as in the case of a hospital that gives free treatment: "the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once that is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill".
v
Ministry of Health [1951] 2 KB 343 ("Cassidy"), a negligence claim which also involved the actions of employed medical staff. A majority of the Court of Appeal (Somervell and Singleton LJJ) treated the case as one of
vicarious
liability, but Denning LJ considered that the critical factor was the hospital's relationship with the patient. He said (pp 362 – 363):
"when hospital authorities undertake to treat a patient, and themselves select and appoint and employ professional men and women who are to give the treatment, then they are responsible for the negligence of those persons in failing to give proper treatment, no matter whether they are doctors, surgeons, nurses, or anyone else…It does not depend on whether the contract under which he [the doctor] was employed was a contract of services or a contract for services. That is a fine distinction which is sometimes of importance; but not in cases such as the present, where the hospital authorities are themselves under a duty to use care in treating the patient."
v
Ministry of Health [1954] 2 QB 66, where Denning LJ repeated the analysis he gave in Cassidy, Lord Sumption observed that "these dicta have never been adopted as part of the ratio of any English case. But the principle which they embody is supported by powerful dicta". He cited Lord Browne-Wilkinson's leading speech in X (Minors)
v
Bedfordshire County Council [1995] 2 AC 633 where he referred to these earlier cases and observed at p 740:
"It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital…They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of the staff is himself in breach of a separate duty of care owed by him to the plaintiff…"
v
Ministry of Defence [2005] QB 183 ("A (A Child)") and Farraj
v
King's Healthcare NHS Trust [2010] 1 WLR 2139 ("Farraj").
"the hospital undertakes the care, supervision and control of its patients who are in special need of care. Patients are avulnerable
class of persons who place themselves in the care and under the control of a hospital and, as a result, the hospital assumes a particular responsibility for their well-being and safety."
virtue
of being a hospital. The claimants were not admitted to the hospital for treatment and "in my judgment, there is a significant difference between treating a patient who is admitted to hospital for [the purpose of carrying out the tests] and carrying out tests on samples which are provided by a person who is not a patient…The special duty that exists between a patient and a hospital arises because the hospital undertakes the care, supervision and control of persons who, as patients, are in special need of care" (para 92).
"No one has seriously questioned that if a hospital patient is injured as a result of a nurse's carelessness it matters whether the nurse is employed by the hospital or by an agency; or if a pupil at school is injured by a teacher it matters whether the teacher is employed by the school or is self-employed…The reason why the hospital or school is liable is that the hospital has undertaken to care for the patient, and the school has undertaken to teach the pupil, and that responsibility is not discharged simply by choosing apparently competent people to do it. The hospital or school remains personally responsible to see that care is taken in doing it."
Vicarious
liability
Various
Claimants
v
Barclays Bank plc [2020] UKSC 13, [2020] ICR 893 ("Barclays Bank") Baroness Hale explained (at para 1) that:
"Two elements have to be shown before one person can be madevicariously
liable for the torts committed by another. The first is a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other…The second is the connection between that relationship and the tortfeasor's wrongdoing."
"The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant."
"The boundaries ofvicarious
liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment…" (emphasis added).
v
English Province of Our Lady of Charity and another [2012] EWCA Civ 938, [2013] QB 722 ("E's case"). The claim concerned allegations of sexual abuse by a priest appointed by the diocesan bishop occurring when the claimant was resident at a children's home operated by a Roman Catholic order of nuns. The defendants included trustees of a trust that had stood in the place of the bishop at the material time. A majority of the Court of Appeal (Ward and Davis LJJ; Tomlinson LJ dissenting) dismissed the appeal against the trial judge's finding of
vicarious
liability on the part of the trustees. Having reviewed the authorities, Ward LJ said (para 62):
"If there is a close connection test, it is that the relationship between the defendant and the tortfeasor should be so close to a relationship of employer / employee that forvicarious
liability purposes, it can fairly be said to be akin to employment. One may at least ask the
very
broad question whether the tortfeasor bears a sufficiently close resemblance and affinity in character to a true employee that justice and fairness to both
victim
and defendant drive the court to extend
vicarious
liability to cover his wrongdoing. For this purpose one is looking to identify the broad characteristics of the employer / employee relationship."
very
well-known words of MacKenna J at p 515 in Ready Mixed Concrete (South East) Ltd
v
Minister of Pensions and National Insurance [1968] 2 QB 497 that a contract of service exists if three conditions are fulfilled:
"(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with it being a contract of service."
various
tests which should cumulatively point either towards an employer / employee relationship or away from one" (para 69). He elaborated at para 70 as follows:
"Whilst it may be useful to carry out some sort of comparative exercise for the purposes of ascertaining how close the relationship [in that case was] to a relationship of employer / employee as opposed to that of employer / independent contractor, my judgment is that one should concentrate on the extent to which, if at all, he is in a position akin to employment. The cases analysed in the immediately preceding paragraphs should be noted with aview
to abstracting from them, if it is possible, the essence of being an employee. To distil it to a single sentence I would say that an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer's business for his employer's business. The independent contractor work in and for his own business at his risk of profit or loss."
vicarious
liability" identified by Professor Richard Kidner in his article "
Vicarious
liability: for whom should the 'employer' be liable?" (1995) 15 LS 47. In summary, these signposts were: (1) the degree of managerial control exercised by the 'employer'; (2) the level of control the contractor has in relation to how s/he arranges work, use of assets and payment; (3) the extent to which the activity is a central part of the employer's business from the point of
view
of the objectives of the business; (4) whether the activity is part of the employer's business or some separate business; and (5) whether the person is in business on their own account, taking the risks in respect of profit and loss. Ward LJ then applied those signposts in concluding that the relationship in that case was one akin to employment (paras 74 – 81).
Various
Claimants
v
Catholic Child Welfare Society and others [2012] UKSC 56, [2013] 2 AC 1 ("Christian Brothers"), a case also concerned with sexual and physical abuse allegations, Lord Phillips endorsed Ward LJ's "impressive" judgment in E's case. In a much cited passage at para 35, Lord Phillips identified the "policy reasons that usually make it fair, just and reasonable to impose
vicarious
liability on the employer when these criteria are satisfied" as follows:
"(i) the employer is more likely to have the means to compensate thevictim
than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee's activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (
v)
the employee will, to a greater or lesser degree, have been under the control of the employer."
vicarious
liability on a defendant. Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to
vicarious
liability on the ground that it is 'akin to that between an employer and an employee'. That was the approach adopted by the Court of Appeal in E's case".
v
Ministry of Justice [2016] UKSC 10, [2016] AC 660 ("Cox") the Supreme Court allowed the claimant's appeal against a finding that the defendant was not
vicariously
liable for the negligence of a prisoner who had dropped a heavy bag of rice on her back. The claimant worked as a catering manager in a prison, where she was assisted by prisoners assigned to work in the kitchen in return for prison service pay. Lord Reed, giving the leading judgment, cited para 35 of Lord Phillips' judgment in Christian Brothers, noting that the first and the fifth of the five incidents were likely to be of lesser significance than the other three inter-related incidents (paras 19 – 23). Lord Reed summarised Lord Phillips' approach as follows:
"…a relationship other than employment is in principle capable of giving rise tovicarious
liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question."
"There is nothing, therefore in the trilogy of Supreme Court cases discussed above to suggest that the classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been eroded."
vicarious
liability. She commented that it would be tempting to align the law of
vicarious
liability with employment law by saying that the definition of a worker in section 230(3)(b) of the Employment Rights Act 1996 ("ERA 1996") (those who work under a contract "whereby the individual undertakes to do or perform personally any work or services for another party to the contact whose status is not by
virtue
of the contract that of a client or customer of any profession or business undertaking carried on by the individual") encapsulates the distinction between people whose relationship is akin to employment and true independent contractors. She recognised that "asking that question may be helpful in identifying true independent contractors. But it would be going too far down the road to tidiness for this court to align the common law concept of
vicarious
liability, developed for one set of reasons, with the statutory concept of 'worker', developed for a quite different set of reasons" (para 29).
The parties' submissions
Non-delegable duty of care
vulnerable
to injury. He said there was no distinction of principle between Mrs
Hughes'
circumstances and those of a patient in a hospital, where it is now accepted that a non-delegable duty of care would be owed.
Hughes
as a patient, once she completed the formalities that the Practice required her to do in order to receive treatment, the Defendant assumed a responsibility for her care. The GDS Contract, although between the Defendant and the PCT, was relevant as Mrs
Hughes
was treated pursuant to this contract, under which the Defendant agreed to provide NHS dental services to patients such as Mrs
Hughes
and to be remunerated accordingly. The Claimant had no relationship with any individual dentist until they began to treat her; she had booked the appointment with the Practice staff, who had allocated the dentist, and she paid the Practice for her treatment. This position was also reflected in the Associate Agreement; clauses 39 – 40 were aimed at ensuring that patients remained the responsibility of the Practice, rather than of individual dentists (paragraphs 42 - 44 above). Mr Collins also relied upon the Claimant's own understanding that she was a patient of the Practice.
vulnerability
was required before it could be fair and just to impose non-delegable liability on the basis of a person's status as a patient.
Hughes.
v
Home Office [2015] EWHC 819 (QB) ("GB") where Coulson J concluded that the third factor was established as the claimant in that case was detained in an immigration removal centre ("IRC") and thus "she was obliged to accept the medical treatment she was given. There was no free choice. Her position was different to that of someone who was at liberty".
Vicarious
liability
very
substantial part, the Defendant retained the profit / loss risks. Further, by entering into these arrangements, the Defendant created the risk of the negligence alleged in this case. The fact that the Associate Dentists had their own insurance and tax arrangements did not displace this analysis. Further, the Associate Agreement reinforced this position, particularly the terms concerning termination and goodwill.
v)
they were free to work at other dental practices and the Associate Dentists each had their own independent business in the provision of dental treatment.
Discussion and conclusions
Non-delegable duty of care
i) Despite his comprehensive review of the authorities, Lord Sumption did not identify any such requirement in Woodland, the leading case on this topic;
ii) Indeed Lord Sumption made clear that a personal obligation on the part of a defendant to undertake the work was not needed: "The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant's. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own" (para 7). I also note that at para 4 Lord Sumption characterised the issue as to the scope of the local authority's duty in the following terms, whether it was under "a duty to take reasonable care in the performance of functions entrusted to it, so far as it performed those functions itself, through its own employees" or a duty "to procure that reasonable care was taken in their performance by whomever it might get to perform them". In turn, it is clear from his judgment that Lord Sumption envisaged that the answer to this question lay in the presence or absence of the five factors he listed in para 23;
iii) An inquiry into whether such a criterion was established would require an examination of the nature of the antecedent relationship between the parties, and, as such, it would entail considerable overlap with the second factor identified in Woodland and pre-empt that evaluation. The Woodland factors were themselves intended to identify the circumstances in which a non-delegable duty arose;
iv) In so far as Mr Davy appeared to attach weight to the sheer fact that Mr
Rattan
was able to delegate performance of the agreed UDAs to Associate Dentists or sub-contractors, this is a neutral feature. The ability to delegate the relevant acts to third parties will be a feature of any case where a non-delegable duty is alleged to remain with the defendant, as absent a delegation of the work in question, the point would not arise. This is also recognised by Lord Sumption in the passage at para 7 of his judgment that I have quoted in sub-paragraph (ii); and
v)
I do not consider that Lord Reed's analysis in Armes supports Mr Davy's contention. Lord Reed cited Lord Sumption's analysis with approval at paras 33 – 36; he did not suggest that there was an additional criterion, satisfaction of which was a necessary pre-requisite for the Woodland factors to apply. The Court's conclusion that the local authority was only under a statutory duty to arrange, supervise and pay for the children's day-to-day care, rather than a duty to provide them with day-to-day care, meant that the necessary antecedent relationship did not exist in that case: see paras 37, 38 and 47 in particular. This was described by Lord Reed as the "critical question…in the present case" (para 37) and it is apparent that he did not find it necessary to address the other Woodland factors in light of this conclusion.
The first factor
Hughes
was a patient of the Practice in respect of the supply of dental services and not just a patient of each of the Treating Dentists when they provided dental treatment to her. The Practice held her dental records and her contact details and arranged her appointments. Payment was made to the Practice in respect of a course of treatment. Her NHS treatment was provided and remunerated in accordance with the terms of the GDS Contract the Defendant had made with the PCT. Under this agreement, the Claimant was a patient to whom the Defendant was providing dental services; and the Defendant determined whether the dental services he had contracted with the PCT to supply would be provided by himself, his employees, associates or sub-contractors. Upon termination of an Associate Agreement, the Defendant took responsibility for the care of patients treated by an Associate whose treatment plans were not completed (paragraph 41 above). The goodwill relating to patients treated by an Associate was retained by the Defendant (paragraph 42 above) and Associates were restricted from working in competition with the Practice after leaving and from soliciting patients (paragraph 43 above). The latter provisions made multiple references to "patient of the Practice".
vulnerable
to the risk of injury (given the nature of dental treatment) and dependent upon the Practice in respect of the treatment provided: see in particular my references in paragraphs 68, 70 and 72 – 74 above to the discussion of the hospital cases in the judgments of Lord Sumption and Baroness Hale. Lord Sumption's description of the first factor (paragraph 63 above) does not support Mr Davy's proposition that a high threshold of
vulnerability
must be established in addition to showing that the claimant was a patient in the sense used in Woodland.
Rattan
did not simply procure dental services, he ran the Practice where Mrs
Hughes
was treated and she was a patient of the Practice for the purposes of the dental services provided (as I address in further detail when I consider the second factor).
Hughes
was a patient of the Practice and thus of Mr
Rattan
for the purposes of receiving dental treatment.
The second factor
Hughes
in Mr
Rattan's
care in respect of the provision of dental treatment, entailing a positive duty to protect her from harm caused by that treatment. I consider that the arrangements made between the Claimant and the Practice, the terms of the GDS Contract and the nature of the Associate Agreement all support this conclusion.
Hughes
was an NHS patient and all the dental treatment she received was covered by the GDS Contract. I do not have to decide whether the same duty would be owed to private patients. I note that under the GDS Contract:
i) The Defendant, as the Contractor, undertook to provide an agreed amount of dental services to patients from the Practice address. The provision of those services was the Defendant's responsibility as the Contractor: see the contract terms I have referred to at paragraphs 14 – 16 and 18 above;
ii) The Defendant, as the Contractor, was responsible for complying with the duties imposed by the contract; responsible for carrying out his obligations under the contract with reasonable care and skill; and for providing appropriate premises, equipment and facilities sufficient to enable proper performance of the contracted services (paragraph 17 above);
iii) The Defendant, as the Contractor, agreed to a series of obligations in relation to patients of the Practice, including keeping records, providing patient information and proving a complaints procedure (paragraph 19 above);
iv) Whilst he could choose to deliver the services by sub-contractors or
via
associates, the Defendant was subject to a series of requirements in relation to their selection, training and oversight (paragraphs 21 – 22 above); and
v)
The Defendant received payment from the PCT in respect of all UDAs provided to patients of the Practice pursuant to the contract, irrespective of who had undertaken the treatment (paragraph 23 above). It was then for Mr
Rattan
to agree with any sub-contractors or associates he had chosen to use, how receipts and expenses were to be apportioned between them. Under the arrangements with the Associate Dentists he retained 50% of fees received.
i) Mrs
Hughes
provided her medical history and her personal details to the Practice, she was allocated a Practice reference number and her records were held by the Practice (paragraph 50 above);
ii) Her appointments were booked by the Practice staff, who determined the dentist she would see from those who the Defendant had arranged to work from the Practice, albeit she could request a particular dentist (paragraphs 54, 56 and 57 above);
iii) She was treated at the Practice premises, using equipment, nursing staff and other facilities provided by the Defendant; and
iv) She made payment for the NHS Charge element of her treatment to the Practice reception staff. The Personal Dental Treatment Plan she was provided with setting out the treatment and charges named the Defendant as the provider of the course of treatment (paragraphs 51 and 53 above).
vary
from patient to patient" (para 90). However, the factors that gave rise to Mrs
Hughes'
perception, specifically those I have identified in the preceding paragraph, are themselves relevant, objective indicators that she was for present purposes a patient of the Practice.
Hughes
had booked an appointment with the Practice and completed the formalities required of her by the reception staff, she was a patient of the Practice for the purposes of receiving dental treatment which the Defendant provided pursuant to the GDS Contract.
vicarious
liability issue, I note that arrangements under the Associate Agreement support, rather than undermine, the analysis I have set out in the preceding paragraphs. The starting point is that in relation to NHS treatment, the Defendant made arrangements with the Associate Dentists to work from the practice in order to enable him to meet his UDA commitment under the GDS Contract. The fact that he felt it unnecessary to specify particular targets in the Associate Agreement (paragraph 39 above) does not alter the fact that this was the role that the Associate Dentists were performing, as reflected in the recitals to the agreement and clauses 17 and 18 (paragraphs 29 and 39 above). In addition:
i) The Defendant provided the premises, the equipment, the staff and the other the facilities which enabled the Associate Dentists to undertake dental treatment (paragraph 32 above);
ii) All records of patients attended and treatment provided were retained by the Practice (paragraph 41 above);
iii) Upon termination of the Associate Agreement, and in accordance with the GDS Contract, the Defendant took responsibility for the care of patients treated by the Associate whose treatment plans had not been completed (paragraph 41 above);
iv) The goodwill relating to patients treated by the Associate at the premises belonged to the Defendant as the owner of the Practice (paragraph 42 above); and
v)
Clause 40 imposed a series of restrictions on the Associate upon termination effective for the following two years, including not to operate as a general dental practitioner within a two mile radius of the Practice, not to treat anyone who was a "patient of the Practice" at the time of termination or within the previous 12 months, within that geographical area; and not to solicit any person who was a "patient of the Practice" on termination (paragraphs 43 – 44 above).
Rattan
had assumed a responsibility and in relation to which he could choose how to discharge that responsibility. The third factor, which I discuss below is also relevant to the question of control. Furthermore, the sheer fact that the Claimant was also under the care of the Treating Dentist whilst they provided her with dental treatment, did not in itself preclude an antecedent relationship with the Defendant from arising.
v
Agedo and another, unrep. 28 January 2020 ("Ramdhean") concerned a claim for alleged negligent NHS dental treatment provided by Dr Agedo. The treatment was given pursuant to the obligations of the Second Defendant, the Forum Dental Practice Limited ("FDPL"), under an Intermediate Oral Surgery ("IMOS") contract with the local Primary Care Trust. It took place at premises specified in the IMOS that were not owned or operated by the FDPL. Ms Ramdhean was referred to the FDPL by her regular dentist practice for a wisdom tooth extraction. Dr Adego was an associate of the FDPL. The judgment of HHJ Belcher at paras 33 - 44 indicates that she rejected a number of submissions analogous to those made on behalf of Mr
Rattan
in the present case, in particular that FDPL had insufficient control and that the FDPL's function was merely administrative, passing the patient to Dr Agedo for treatment. In rejecting that latter submission, the Judge had regard to the FDPL's position as Contractor for the provision of the dental services under the IMOS. In my judgment she was correct to do so, as I have done in relation to the GDS contract. The Judge found that all of the Woodland factors were established and that a non-delegable duty of care arose in relation to the treatment provided.
v
Croad, unrep. 19 April 2021 ("Breakingbury") the claim related to NHS dental work carried out by associate dentists at a dental practice owned by Mr Croad, who had a contract for the provision of General Dental Services with the Local Health Board ("LHB"). This appears to have been similar in nature to Mr
Rattan's
GDS Contract. The BDA template reflected the terms used in the agreements between Mr Croad and his associate dentists. Again it seems that some similar submissions were made, including that the circumstances were analogous to Farraj and materially distinct from treatment in a hospital, although, unlike Ramdhean, it was not argued that the dental practice had only been performing an administrative function (paras 36 - 42). HHJ Harrison found that the Woodland factors were present and that a non-delegable duty of care was owed. In finding that the necessary antecedent relationship was present, the Judge relied, amongst other features, on the termination and goodwill provisions in the associate agreement; the defendant's obligations as the contractor with the LHB; and the booking and payment arrangements with Miss Breakingbury (paras 43 – 44).
The third factor
Rattan
could choose whether to provide the NHS dental services himself or
via
employees, associates or sub-contractors. At most Mrs
Hughes
could request, although not insist upon, a particular dentist from that pool of dentists which he had selected to provide dental services at the Practice. The fact that the Claimant could chose to reject the services altogether and go to a different dental practice altogether is not in point, as Lord Sumption's description of the third factor shows.
Rattan
(paragraph 100 above). Inevitably a detainee in an IRC has a greater curtailment on their freedom of choice than a person in Mrs
Hughes'
position. However, neither person can control how the obligations stemming from the antecedent relationship regarding medical / dental treatment are performed. In the passage which Mr Davy relies on, Coulson J was simply emphasising the lack of free choice that existed for someone in the detainee's position, he was not suggesting that those who were not in detention would be unable to satisfy the Woodland third factor or suggesting that Lord Sumption's criterion should be re-formulated.
Conclusion
Rattan
placing her in his charge or care in respect of dental treatment she received at the Practice and that she had no control over how he chose to perform his obligations, then the fourth and fifth factors would also be present. This is plainly a correct concession. The delegation to the Treating Dentists of the provision of dental treatment to Mrs
Hughes
was an integral part of the positive duty Mr
Rattan
had assumed and the alleged negligence related to the performance of the
very
functions he had assumed, rather than to a collateral aspect.
view
of the proceedings for me to also determine the
vicarious
liability position in relation to the Associate Dentists, but in light of the fact that the issue was fully argued before me and given the basis upon which this case was transferred to the High Court, I consider it appropriate to do so.
Vicarious
liability for the acts of the Associate Dentists
vicarious
liability. In Barclays Bank the Supreme Court re-affirmed the distinction between that situation and one where a genuinely independent contractor is in business in their own account. It is plain, post Barclays Bank, that this is the correct starting point, rather than beginning with a consideration of whether the five policy incidents identified by Lord Phillips in Christian Brothers are present. In reviewing the relevant caselaw, I have sought to identify the essence of what makes a person an employee and in turn, what can render a relationship sufficiently akin to employment for these purposes: see paragraphs 79 – 82, 87 and 88 above. Self-evidently, the sheer fact that the Associate Dentists were self-employed, responsible for their own tax and national insurance and not in receipt of the kinds of benefits that would be received by employees does not answer that question one way or the other.
variable
and they had a large amount of freedom over how much time they worked at the Practice and how they divided their work there between NHS and private patients. Whilst it is not necessary to establish the kind of irreducible minimum of mutual obligations found in an employment contract, I accept that this degree of freedom casts some light on the nature of the relationship and could, depending on the impact of the other features I will come on to discuss, be an indicator that the Associate Dentists were independent contractors, albeit it is not a decisive indicator of that.
i) The Defendant determined when the premises were open and when his nursing and reception staff were made available to the Associate Dentists;
ii) The Associate Dentists agreed to provide services as a Performer under the terms of the GDS Contract which the Defendant had made with the PCT (paragraphs 29 and 39 above). In turn this meant that in carrying out dental treatment the Associate Dentists were subject to Mr
Rattan's
powers and responsibilities under that Contract, for example his duty to use reasonable endeavours ensure that all courses of treatment were completed within a reasonable time (paragraph 18 above);
iii) The Associate agreed to comply with the Practice's policies and procedures; to comply with any requirements in the GDS Contract relating to appraisal, CPD, clinical governance and quality assurance; to comply with the Practice's complaints procedure; to submit to clinical audit; and to replace failed treatment as specified (paragraph 33 above);
iv) Each Associate Dentist was subject to the Defendant's payment arrangements under which he retained 50% of the monies received for the NHS work they undertook (paragraph 25 above);
v)
The Defendant retained the goodwill relating to patients (paragraph 42 above);
vi)
The Associate Dentists were required to adhere to detailed restrictions applicable on termination aimed at ensuring that patients remained patients of the Practice and that the Practice retained their records (paragraphs 41 and 43 – 44 above);
vii)
The Associate Dentists' freedom to treat private patients was subject to the proviso that it did not contravene the terms of the Defendant's GDS Contract (paragraph 38 above); and
viii)
There was a limitation on the number of holidays that the Associate Dentist could take (paragraph 36 above).
i) The work was undertaken at the Practice premises owned by the Defendant, using staff, equipment and other facilities that he provided;
ii) The dental work the Associate Dentists undertook enabled the Defendant to meet his obligations to the PCT under the GDS Contract. Whilst he did not place particular targets on them, it is clear that he would not have been able to deliver the agreed number of UDAs (or later, sessions) had he not recruited associates to work at the Practice;
iii) Payment for the NHS work undertaken by the Associate Dentists was made by the PCT to the Defendant, who then retained a 50% share. Similarly the Practice collected the NHS Charges paid by patients (and private patients' fees) and the Defendant retained 50% of these fees;
iv) The Defendant had chosen to discharge his commitment to the PCT to undertake the agreed number of UDAs (and later, sessions) by retaining associates, rather than by other means;
v)
As I have identified when addressing the non-delegable duty issue, Mrs
Hughes
was a patient of the practice for the purposes of receiving dental treatment and the Defendant had an antecedent relationship with her in respect of the provision of that treatment;
vi)
The Defendant exercised elements of control over the dental treatment work which the Associate Dentists undertook, as I have summarised in paragraph 126 above; and
vii)
Whilst the Associate Dentists bore an element of the business risk in terms of the amount of work they undertook, the risk of bad debts and certain expenses they were responsible for in whole or part (paragraphs 25 – 27 above), the Defendant plainly bore the substantial majority of the financial risk and potential profits in terms of the dental work undertaken at the Practice.
vicarious
liability. The circumstances in the present case are quite different from the position of Dr Bates in the Barclays Bank case whose work examining patients was entirely separate from the bank's business.
Rattan's
evidence that this was an addition from the new BDA template rather than something he had specifically applied his mind to and it is unclear whether it was inserted simply in case associates were found to be "workers" within the meaning of the Regulations[4] by a Court or Tribunal at some future juncture.
vicariously
liable for the alleged negligent treatment. However, I do not derive any assistance in respect of this issue from Ramdhean. It was decided prior to the defendant's successful appeal to the Supreme Court in Barclays Bank by applying Lord Phillips' five incidents in Christian Brothers (para 67), HHJ Belcher rejecting the submission that she should consider whether the relationship was akin to employment (para 72). Breakingbury was decided after the Supreme Court's decision in Barclays Bank, but in so far as HHJ Harrison relied primarily on the UDA targets that the associates were subject to in finding that there was sufficient control (paras 56 and 57), the circumstances were factually different to the present case. As the Judge considered that the targets established a sufficient level of control, understandably, he did not go on to address other potential indicators of control. He did conclude that the work undertaken by the associates was done on behalf of and for the benefit of the practice (para 58), but the full circumstances are not clear from the relatively succinct reasoning on this point. Accordingly, there is limited assistance that I derive from this decision. As I explained in relation to the non-delegable duty issue, I have arrived at my own assessment and conclusion on the basis of the material before me.
Conclusion
Rattan
and the Associate Dentists was sufficiently akin to employment, then the second element of the
vicarious
liability test is also satisfied.
vicariously
liable for the acts and omissions of Drs Shahin Bogani, William Beattie, Yavar Khan and Rubina Fur in respect of the Claimant's dental treatment at the Practice and the Defendant owed her a non-delegable duty of care in respect of this treatment.
Note 1 The services included “mandatory services”, which entailed “all proper and necessary dental care and treatment”, including “the care which a dental practitioner usually undertakes for a patient” (clause 74). [Back] Note 2 The Regulations set prescribed payment sums dependent upon whether the treatment fell within Bands 1, 2 or 3. [Back] Note 3 I was not shown the relevant statutory provisions and Mr Collins suggested it was an oversimplification of the complex relationship between the duties on the Secretary of State to provide health services and the arrangements then made for the procurement of medical services from the Note 4 The Working Time Regulations 1998 use the same definition of “worker” as section 230(3)(b) ERA 1996. [Back]
various Trusts. [Back]