In an interesting recent “test case” decision, the Court of Appeal held that a dental practice owner and sole principal dentist could in principle be held liable for any acts or omissions of self-employed associate dentists performing work at the practice on the basis of a non-delegable duty of care. This case is important for not just dentists but also any business owners who engage self-employed contractors to service clients of their business. It underlines the care needed not only when drafting client contracts and assessing employment status but also when monitoring how such arrangements work on a day to day level which often won’t neatly match the contractual terms.
Case Facts
In Hughes v Rattan [2022] EWCA Civ 107, the Claimant, Mrs Hughes, alleged that the treatment she received from three self-employed dentists who worked at a dental practice owned by the Defendant, Dr. Rattan’s practice was negligent. As an aside, it was not in dispute that the Defendant was vicariously liable for an employed trainee. The court was asked to determine whether Dr. Rattan could be held liable to Mrs Hughes for any later finding of any acts and omissions of the self-employed dentists operating at the practice by virtue of a non-delegable duty of care or vicarious liability.
Non-delegable duty
A non-delegable duty arises, for example, when a business who engages with a customer or patient may accept a duty to ensure any third party who has been delegated to perform the service does not act negligently.
Having considered the five factors set out in the case of Woodland v Swimming Teachers Association and others. The court agreed that the test in establishing whether the practice owner owed Mrs. Hughes this duty was satisfied. This was due to the requirement for the Mrs. Hughes to be a “patient” of the practice to receive treatment. An antecedent relationship between the patient and the dental practice owner was established when Mrs. Hughes signed the relevant treatment plan, which placed her in the practice owner’s care. Finally, Mrs. Hughes had no control over whether the dental practice owner chose to perform his obligations personally or through employees or third parties.
With this in mind the court held that Dr Rattan could be, in principle, liable for any negligence of the self-employed associates through this non-delegable duty which was “a positive or affirmative one to protect the patient from injury, not simply to avoid acting in a way that foreseeably causes injury; and it involved an element of control over the patient.”
It’s worth noting that the stringent post-termination restrictions imposed on the associate dentists was regarded as being “very significant”.
Vicarious Liability
The Court of Appeal didn’t have to decide the vicarious liability point based on its finding above but chose to do so as this was in the nature of a test case and it was asked to do so.
The Court of Appeal expressed the view that Dr Rattan would not be vicariously liable for the actions of the associate dentists. This was because the relationship between the self-employed dentists and Dr Rattan could not properly be described as sufficiently “akin or analogous to employment”.
In these circumstances, it was key that the contractual arrangement between Dr Rattan and the self-employed dentists was too distant to meet this test with specific importance being placed, for example, on the fact that the dentists could choose the hours they worked, they could work at other practices and that they had free reign over their clinical judgments. Other factors are set out at paragraph 89 of the judgement. With this in mind the court stated that the test for vicarious liability had not been met, “on balance” although this conclusion was reached “with some hesitation”.
Key Take-Aways
This case underlines the importance of accurately and carefully drafting contracts with both self-employed agents who undertake work for your business and the contractual relationship with clients of the business. It is critical to ensure self-employed contracts are drafted and then operated in such a way that does not exert too much control or otherwise point towards establishing a relationship “akin to employment”.
Although this case involved the dental sector, this case is highly relevant to any sectors involving similar arrangements.
Note: Each case turns on its own specific facts and the above is a very high level summary of a lengthy and detailed judgment and does not constitute and should not be relied on as legal advice. If any specific advice is required please contact our Employment and Corporate teams.
