Hughes v Rattan [2022] EWCA Civ 107
In Hughes v Rattan [2022] EWCA Civ 107, the Court of Appeal answered the following question: was the owner and principal of a dental practice liable for the negligence of his self-employed associates? The claim arose from NHS care provided by three associate dentists. The Court held that, whilst vicarious liability did not arise, the practice owner was liable because he owed a non-delegable duty of care to his patients.
Non-Delegable Duty of Care
The Court analysed non-delegable duty by reference to the principles affirmed by Lord Sumption in Woodland v Swimming Teachers Association and others[2013] UKSC 66:
“(1) The claimant is a patient or a child, or for some other reason is especially vulnerable 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.”
The Court held that the Claimant was a “patient of the practice”, not just in layman’s language but as a matter of law. The treatment plan signed by the patient clearly identified the practice owner/principal as the dentist who would be providing NHS treatment. It was also very significant that associates were required to sign stringent restrictive covenants. This prohibited them from treating “patients of the practice” for 12 months after ceasing employment.
As to the first Woodland factor, all that was required was for a claimant to be a “patient”. This did not mean a patient in the old sense of someone who lacked mental capacity. Nor was the term confined to accident and emergency patients or those admitted to hospital overnight. There was no requirement that the patient needed to be especially vulnerable.
As to the second factor, the necessary “antecedent relationship” was established on each occasion when a patient signed a personal dental treatment plan. That was sufficient to place the practice owner under a positive duty to protect them from injury.
As to the third factor, patients had “no control” over how the principal chose to perform his obligations whether personally or through his associates. Patients could express a preference about which dentist they wanted to see but no more than that. The Court held that it was irrelevant that patients could exercise control by refusing to be seen by anybody other than a particular dentist or by refusing to be treated at all. This would apply to all dental patients and to all hospital outpatients with mental capacity. The ability of patients to exercise control in this limited way was not sufficient to avoid a non-delegable duty.
Vicarious Liability
As to vicarious liability, the Court considered the correct approach to be applied following the Supreme Court’s decision Court in Various Claimants v Barclays Bank plc [2020] UKSC 13. Baroness Hale said at [24] that:
“there is nothing…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.”
At [27] she said that:
“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 Court considered that it was not sufficient, for the purposes of vicarious liability, that the associates were carrying on their activities as an integral part of the practice’s business. Nor that that they were not conducting recognisably independent businesses of their own. The “critical question” was whether their relationship could properly be described as “akin” (or “analogous”) to employment, with the focus being on the contractual relationship between tortfeasor and defendant.
On the facts, this test was not met. The points which, in combination, led to this conclusion were as follows:
“(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;
(3) The Defendant had no right to control, and did not control, the clinical judgments they made or the way in which they carried out treatment;
(4) They chose which laboratories to use and shared the cost of disbursements to laboratories;
(5) They were responsible for their own tax and national insurance payments, and were treated as independent contractors by HMRC;
(6) Although the Defendant took most of the financial risk by virtue of running the premises and paying ancillary staff, they shared the risk of bad debts;
(7) They were required to carry personal professional indemnity insurance and to indemnify the Defendant against any claims made against him in respect of their treatment of patients;
(8) They had to pay for their own professional clothing and professional development, and for any equipment they wished to use which was not provided by the Practice;
(9) There was no disciplinary or grievance procedure.”
Comment
Whether private healthcare providers are liable for the actions of their independent contractors remains a hotly contested issue in clinical negligence litigation. The Court of Appeal’s recent judgment is interesting in at least two respects.
First, it suggests a relatively low bar for establishing a non-delegable duty. For the purposes of establishing the first Woodland factor, all that is required is for the Claimant to be a patient undergoing treatment. There is no additional requirement for any special vulnerability. The existence of an “antecedent relationship” may be satisfied by the existence of a contract to provide medical care. Moreover, the ability of a patient to choose which of the defendant’s practitioners should treat them does not negate a non-delegable duty. Ultimately the Court will step back and ask itself whether, on the facts and contracts, the Claimant was “a patient of the defendant.”
Second, it suggests a relatively high bar for establishing vicarious liability. It is not sufficient to prove that a negligent practitioner was working as an integral part of the defendant’s business. Nor that they were not in business on their own account. The correct focus is upon whether the relationship between the practitioner and the defendant is “akin to employment.” There are no bright lines. The answer will depend upon an open textured exercise of evaluative judgment. The features of the relationship that resemble employment go on one side of the scales. The features that do not resemble employment go on the other. The court must decide whether the scales tip towards ‘employee’ or ‘independent contractor’.
Following a decade of rapid development, the Court of Appeal’s judgment is the latest example of judicial restraint in the application of vicarious liability. Conversely, it suggests that a wider range of private healthcare providers will be found to owe non-delegable duties in the future. The author predicts that Hughes v Rattan will be the first of many cases in which the Woodland boundaries are mapped out.
See past QMLR articles on non-delegable duty and vicarious liability here and here.
