Iris Hughes v Rajendra Rattan

A patient receiving dental treatment is within the first Woodland factor without proof of separate exceptional vulnerability. An antecedent relationship may arise between the patient and practice owner when treatment is accepted, creating a personal positive duty even where treatment is delegated. The patient’s ability to request another dentist, refuse treatment or attend another practice does not defeat the relevant control factor.

Vicarious liability remains distinct. The question is whether the tortfeasor is in a relationship akin to employment, rather than carrying on an independent business. Freedom over working hours, work for other practices, clinical autonomy, personal insurance, expenses and financial risks may outweigh the practice owner’s facilities and limited control.

The claimant received NHS dental treatment at the defendant’s practice from several dentists. One dentist was employed by the defendant. The others were self-employed associate dentists. The claimant alleged negligence by four dentists and argued that the defendant was liable for the associates’ acts or omissions.

The High Court, Heather Williams QC sitting as a deputy judge, determined the preliminary issue for the claimant on both non-delegable duty and vicarious liability grounds in a judgment handed down on 21 July 2021. The defendant appealed. The central issues were whether the defendant owed a non-delegable duty of care and whether the associates’ relationship with him was sufficiently akin to employment for vicarious liability.

1. The appeal was dismissed. The defendant owed the claimant a non-delegable duty of care in relation to treatment provided by the associate dentists.
2. The applicable framework was the five cumulative factors identified in Woodland v Swimming Teachers Association and others [2014] AC 537. A dental patient receiving treatment satisfies the first factor without needing to establish an additional high degree of vulnerability. The question whether the factor extends to patients merely receiving advice in consultation was left open.
3. The claimant’s antecedent relationship with the defendant arose, at the latest, when she signed the Personal Dental Treatment Plan before treatment. The plan named the defendant as provider. The relationship placed her in the care of the practice owner and imposed a positive duty to protect her from injury. Delegation of performance did not remove the defendant’s personal legal responsibility.
4. The third factor was also satisfied. The claimant could express a preference for a dentist, but she could not control whether the defendant performed his obligations personally or through employees, associates or contractors. Her ability to refuse treatment or attend another practice was irrelevant to that factor.
5. On vicarious liability, the court applied the distinction reaffirmed in Various Claimants v Barclays Bank Plc [2020] UKSC 13. The focus was whether the associates were carrying on business on their own account or were in a relationship akin to employment. Their status as self-employed, tax treatment and absence of employment benefits were not decisive, and whether they were workers under the Employment Rights Act 1996 was irrelevant.
6. The associates’ freedom to work as many or as few hours as they wished, work for other practices, make independent clinical decisions, bear specified expenses and risks, maintain personal indemnity insurance and lack of disciplinary procedures outweighed the defendant’s provision of premises, equipment and limited control. The relationship therefore did not satisfy the Barclays Bank test. The judge’s vicarious liability conclusion was wrong, but the appeal remained dismissed because the non-delegable duty finding was correct.

1. Court of Appeal (Civil Division): The defendant’s appeal was dismissed. The court upheld liability on the basis of a non-delegable duty but rejected vicarious liability.
2. High Court, Queen’s Bench Division: Heather Williams QC, sitting as a deputy judge, determined the preliminary issue for the claimant on both grounds in a reserved judgment handed down on 21 July 2021.