Iris Hughes v Rajendra Rattan

The Court of Appeal dismissed the appellant's challenge to the High Court's finding that the owner of a dental practice owed a patient a non-delegable duty of care in respect of NHS dental treatment provided at the practice. The court applied the Woodland factors for non-delegable duties and held that a patient who signs the practice's Personal Dental Treatment Plan and is treated at the practice is a patient in the relevant sense, that an antecedent relationship of care existed between patient and practice owner, and that the patient lacked control over how the practice owner chose to perform the contractual obligations (personally or through others).

The court considered vicarious liability separately. Applying the recent authorities (including Cox and Barclays), the court concluded that, on the particular contractual and factual matrix of the associate agreements and the General Dental Services Contract, the associate dentists were not carrying on recognisably independent businesses and were integrated into the practice; however, when measured against the Barclays line of analysis the relationship did not satisfy the test for being sufficiently "akin to employment" to impose vicarious liability. The non-delegable duty finding made resolution of the appeal straightforward: the appeal was dismissed.

Background and parties:

• The claimant, Mrs Hughes, received NHS dental care at Manor Park Dental Practice between 2009 and 2015. The defendant, Dr Rattan, owned and ran the practice as sole principal. The claimant alleged negligent treatment by four dentists who saw her at the practice; three were self-employed associates and one was an employed trainee.

Procedural posture:

• The claimant issued proceedings in the county court and a preliminary issue was transferred to the High Court. Heather Williams QC, sitting as a deputy High Court judge, decided the preliminary issue in the claimant's favour on both grounds (non-delegable duty and vicarious liability). Permission to appeal to the Court of Appeal was granted and the appeal was heard by Bean LJ, Nicola Davies LJ and Simler LJ.

Nature of the application and issues:

• The preliminary issue was whether the practice owner was liable for negligence by the associate dentists either because he owed a non-delegable duty of care to the patient or because he was vicariously liable for the associates' acts.

Evidence and contractual framework:

• The court had a List of Agreed and Disputed Facts and considered the General Dental Services Contract (GDS Contract) between the defendant and the Primary Care Trust, the British Dental Association standard form associate agreements, and the Personal Dental Treatment Plan form used for NHS courses of treatment. The associate agreements described the associates as self-employed, provided for use of practice facilities, required adherence to practice procedures and contained restrictive covenants protecting the practice's goodwill.

Issues framed by the court:

The Court of Appeal analysed (i) whether the Woodland factors for a non-delegable duty were satisfied in the dental practice context; and (ii) whether the relationship between practice owner and associate dentists was "akin to employment" so as to give rise to vicarious liability, considering post-Christian Brothers authorities including Cox and the later Barclays decision.

Court’s reasoning and decision:

• On non-delegable duty: the court held that a patient who signs the Personal Dental Treatment Plan is a patient of the practice for the purposes of Woodland; the GDS Contract and the associate agreements created an antecedent relationship that placed the claimant in the practice owner's care; and the claimant lacked control over how the practice owner performed his obligations. The Woodland factors were satisfied and a non-delegable duty arose.
• On vicarious liability: the court analysed the multi-factorial indicators of control, integration and business risk. Although the associate dentists worked at the practice premises, used its staff and facilities and their work enabled the contractor to meet GDS obligations, the Court of Appeal concluded that when the Barclays approach was applied the relationship did not meet the threshold of being sufficiently akin to employment. Factors such as freedom to work elsewhere, variable hours, separate financial responsibilities, and professional indemnity arrangements weighed against vicarious liability.
• Outcome: because the non-delegable duty finding was upheld, the appeal was dismissed even though the court did not uphold the High Court's finding of vicarious liability.

Wider context: the judgment applies Woodland in the primary care dental setting and emphasises the continuing distinct analyses for non-delegable duty and vicarious liability after the Supreme Court's decisions, notably Barclays. It demonstrates that a finding of a non-delegable duty can make resolution straightforward even where vicarious liability is not established.

The appeal is dismissed. The Court of Appeal held that the practice owner owed the claimant a non-delegable duty of care in respect of NHS dental treatment provided at the practice because the Woodland factors were satisfied: the claimant was a patient, an antecedent relationship of care existed, and she lacked control over how the defendant chose to perform his obligations. Applying the law on vicarious liability, and the later Supreme Court approach exemplified in Barclays, the court concluded that the associate dentists were not shown to be in a relationship sufficiently akin to employment to impose vicarious liability; however, the non-delegable duty made it unnecessary to rely on vicarious liability to dispose of the appeal.

Preliminary issue originally listed in the County Court following issue of claim on 7 September 2018. Transferred to the High Court by HH Judge Backhouse (QB 2021 000978) and heard by Heather Williams QC on 9–10 June 2021; High Court reserved judgment 21 July 2021 determining the preliminary issue for the claimant. Permission to appeal granted by Asplin LJ. Appeal determined in the Court of Appeal: [2022] EWCA Civ 107 (04 February 2022).