Each associate held professional indemnity cover and was responsible for the standard of their work. The defendant did not contribute towards their sick pay or pension. The associates were required to honour their own tax obligations. The associates had clinical control over their patients and were responsible for clinical audits of their patients. They were free to work for other healthcare practices while employed by the defendant.

The court found in favour of Ms Hughes on the issues of a non-delegable duty and vicarious liability.

Non-delegable duty

In applying the test to determine if there was a non-delegable duty on the part of the defendant, the court held that a duty will arise if:

• The claimant is a patient or a child, or is vulnerable or dependent on the protection of the owner of the practice against the risk of injury;
• There is a pre-existing relationship between the claimant and the owner of the practice which is independent of the negligent act or omission, and this relationship places the claimant in the custody or care of the practice owner, and it is possible to impute, to the practice owner, the assumption that they have a positive duty to protect the claimant from harm, and not merely to refrain from negligent conduct; or
• The claimant has no control over whether the practice owner treats the patients personally or through associates or third parties

Ms Hughes had placed herself in the care of and was dependent on the treatment provided to her by the practice. She was furthermore vulnerable to the risk of injury. There was an antecedent relationship between Ms Hughes and the practice which imposed a positive duty on the practice to protect her from harm caused by the treatment. The court stated further that the defendant could choose whether to render treatment himself or through his associates. Ms Hughes therefore lacked control over how the defendant chose to perform his obligations towards her.

Reference was made to the contract entered into between Ms Hughes and the defendant which defined “a patient” as “a person to whom the Contractor is providing services to under the Contract” and a “practice” as “the business operated by the Contractor for purposes of delivering services under the Contract”. As such, “patient” included anyone receiving treatment from a dentist, including Ms Hughes whom, it was held, was a patient of the practice.

Ms Hughes signed a Personal Dental Treatment Plan prior to each treatment session which cited the defendant as the treatment provider. It made no reference to any other dentist such as an independent contractor or an employee of the practice. The court held that this relationship placed Ms Hughes in the actual care of the defendant himself in his capacity as owner of the practice. The court held further that the fact that Ms Hughes had the option to seek treatment by a specific dentist did not mean that she was not owed a non-delegable duty for failure to do so.

The court held in favour of Ms Hughes that the duty of care to her as the patient could not be delegated to the associates. Therefore the owner of the practice was liable for his own negligence and it was not necessary to deal with vicarious liability.

Vicarious liability

The court nonetheless determined the vicarious liability issue. The court held that one must consider whether the relationship may be described as being akin to employment having regard to the contractual relationship between the parties.

The court held that the test for vicarious liability had not been met although that finding did not save the owner from liability for the breach of his non-delegable duty of care to the patient.

The associates could decide on the number of hours they wished to work and they could work at other practices. The defendant had no control over their clinical judgment. The associates could choose which laboratories to use and shared the costs of those laboratories. They were responsible for their own tax and national insurance. They shared the risk of bad debts written off by the practice and were responsible for their own professional indemnity insurance. It was clear that they were treated as independent contractors.

Even though the defendant exercised some degree of control, and the associates were under a contractual duty to follow the practice’s policies and procedures, the degree of control exercised by the defendant did not outweigh those factors which pointed towards the associates being independent contractors.

Takeaways from the judgement

The circumstances of each case must be considered in determining whether a non-delegable duty exists or if the owner of a practice may be held vicariously liable for the negligent acts or omissions of associates. In the absence of a treatment plan and the specific contract terms described above, a patient might not be able to support the contention that she is a patient of the practice. The contractual provisions that govern the relationship between a practice owner and the associate and between the patient and the practice are fundamental in establishing liability. The nature of the relationship, the scope of employment, the legal implications for each party in the event of failure by one party to comply with the terms of the contract and, among others, the liability of each party should be set out clearly in the contract.

The case is Iris Hughes Hugh v Rattan 2022[2022] EWCA Civ 107.