Around this time last year, Dominic Ruck Keene examined the County Court decision in Ramdhean v Agedo and The Forum Dental Practice Limited 2020 WL 00620352. HHJ Belcher concluded that a dental practice owed a non-delegable duty of care with respect to treatment carried out by a dentist working there.
Another Circuit Judge has now reached the same conclusion on the same preliminary issue. In Breakingbury v Croad (Cardiff County Court, 19 April 2021), a dentist who retired in 2000 found himself being sued 19 years later for treatment carried out at FDC, a Merthyr Tydfil dental practice. Mr Croad had continued to own the practice until 2012, which covered the period material for the purposes of the claim.
Mr Croad entered into contracts with the local health board to provide dental services. He met his contractual obligations by engaging self-employed dentists to treat patients – a fairly common business model.
A claim was issued in October 2019, which HHJ Harrison considered to have been within the 3-year limitation period beginning with the date when the Claimant had acquired the requisite knowledge for the purposes of s.14 of the Limitation Act 1980.
The allegations of negligence concerned various attendances between 2008 and 2012. The events that triggered the investigation of a claim were evidenced by an internal email from a separate practice the Claimant had attended:
“I will write an x ray report and send to you over the weekend… the bridge is crap and has been since it was placed [.] [I]f I was her and wanted implants, she should sue the dentist who did the bridge… give her [the] number for Dental Law Partnership when you see her… but you can’t have the work done until the case is settled.”
In his defence, Mr Croad averred that the associate dentists at FDC were all self-employed and individually insured. He denied the existence of a non-delegable duty and the relevance of the Claimant’s arguments as to vicarious liability.
Those issues, and the question of limitation, were hived off for a preliminary issues trial.
As in Ramdhean, the judge applied the approach set out by Lord Sumption in Woodland v Swimming Teachers Association (2014) AC 537:
- Is the claimant a patient or a child or for some other reason especially vulnerable or dependent on the protection of the defendant against the risk of injury? “On any sensible construction of the meaning of the word… yes.” The judge considered that it was not possible to distinguish the nature of a doctor-patient relationship from the relationship that existed between a dental surgeon and his patient.
- Is there an antecedent relationship between the claimant and 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? This Claimant regarded herself as a patient of “the practice”. She had registered with it. They provided her with dental care. The practice regarded her as “belonging” to it. The contract between the associate dentist and the practice made it clear that the patient was not to be poached if an associate moved on. The contractual obligation with the health board lay with the practice. The practice was paid for the service. The Claimant did not choose which dentist would see her.
- Did the claimant lack control over how the defendant chose to perform its obligations, i.e. whether personally or through third parties? The Claimant had no control over how dental care was provided to her. It was up to the practice who did the work. It did not matter whether the patient could be viewed as having “elected” to accept treatment from the practice; “… what is at the heart of this characteristic is the Claimant’s lack of control over how the service she elects to receive is provided… they could provide the service in whatever way they choose. It was not open to her to insist on how they did so.”
- Had the defendant delegated to the third party some function which was an integral part of the positive duty he had assumed towards the claimant? Was the third party exercising, for the purpose so delegated, the defendant’s custody or care of the claimant and the element of control that goes with it? As far as HHJ Harrison was concerned, the associate dentists provide the care provided to the Claimant within the ambit of the local Health Board contract. They did so, effectively, on behalf of FDC. This aspect was made out.
- Did the alleged negligence relate to the performance of the very function assumed by the Defendant? Yes, said the judge: “The pleaded allegations of negligence relate to the central function of the practice, namely the provision of dental services.”
HHJ Harrison acknowledged that the assessment of whether there was a non-delegable duty was not limited to a tick-box exercise. Applying Lady Hale’s approach in Woodland, he applied a broader sense check: “… if one stands back and asks if a practice… should owe a duty to a patient for whose care they are paid by the local health board, then the answer must in my judgment be, yes.”
The Claimant’s case had also been put on the alternative basis of vicarious liability, which the judge went on to deal with obiter. The associate dentists were not employed by the practice, but the latter was held to be vicariously liable for the following reasons:
- Mr Croad had accepted that he was the “provider” of dental care and that the practice had an overarching obligation to ensure that the services provided were safe and met the expected standard set by the health board.
- The associate dentists were given targets to meet. The practice was telling the associates what to do without telling them how to do it. The relationship between the two was “akin to employment”.
- The associates’ work was undertaken on behalf of the practice; they provided dental care, which was the defendant’s business. The defendant received a direct financial benefit from the work the associates undertook. The practice brought the patients in. “Having considered the various factors in this case I am unable to conclude that the associates were engaged in their own separate business.”
- Judge Harrison noted that his findings were consistent with those of HHJ Belcher in Ramdhean, a decision that did not bind him but that he plainly considered to be persuasive.
On the question of date of knowledge, the judge reached a fact-specific determination in favour of the Claimant.
But he went on to deal nonetheless with what he would have made of the Claimant’s section 33 argument. On the face of it, the delay in this case might have been expected to pose some difficulties: there were no records available, and the index consultations took place many years earlier.
However, HHJ Harrison concluded that the issue of liability would not be a matter of the Claimant’s recollection, but “an analysis of the treatment provided and recorded by appropriate experts.” He found that the effect of the passage of time on that exercise would be limited. He did not specifically address the total lack of contemporaneous documentation.
But all of this was academic given his determination that the limitation period was still current at the point of issue.
How the higher courts might resolve issues such as those presented in Ramdhean and Breakingbury remains to be seen. But this further Circuit Judge decision chips further at any tenable distinction between how dental service providers and private hospitals ought to be treated when it comes to the question of the non-delegability or otherwise of the common law duty of care.