This article is to cover the issues of non-delegable duties and vicarious liability, in the light of Hughes v Rattan [2022] EWCA Civ 107. That case was about clinical negligence, so this article should specifically be of interest to clinical negligence practitioners, but there are also general points.

A Claimant often has a problem about suing medical practitioners, such as where there are several potential Defendants, several potential insurers, untraceable potential Defendants, and impecunious Defendants.

Unsuccessfully suing Defendants has costs consequences, not just for Claimants’ recoverable costs from Defendants but for Claimants being responsible for the Defendants’ costs. For historic claims this responsibility for successful Defendants’ costs under CPR 44.14 was only from damages and interest awarded and not from monies in settlement  – Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 6541. For historic claims also the responsibility for partly-successful Defendants’ costs and successful Defendants’ costs did not include set-off against the successful Claimant’s costs –  Ho v Adelekun [2021] UKSC 43. Note however the changes in the rules which have come into force on claims issued on and after the 6^th April 2023, which reverse both Cartwright v Venduct and Ho v Adelekun in favour of Defendants being able to enforce their costs against Claimants both on settlements and by set-offs against Claimants’ costs.

Since the handing-down of the Judgment in the Court of Appeal over 21 months ago, there is no reported case exactly on the point, which I can find.

Before Hughes v Rattan there were at least two County Court decisions on non-delegable duty and on vicarious liability in dental clinical negligence:  The Court of Appeal only mentioned these, the cases of Ramdhean v Agedo and The Forum Dental Practice Ltd (2020 – 28^th January 2020; case number D33YM060; Leeds CC; HHJ Belcher), and Breakingbury v Croad (2021  – 19^th April 2021; case number F14YY798; Cardiff CC; HHJ Harrison).

In Ramdhean the Claimant sued Dr Agedo, the dentist, who had undertaken her dental treatment, but who could not be found, and the dental practice, for which Dr Agedo had worked while carrying out the treatment, and which had provided the dental services under an Intermediate Minor Oral Surgery contract with the Primary Care Trust. Her NHS dental practice had referred her to The Forum Dental Practice for an extraction. Dr Agedo negligently failed to remove all the roots. Dr Agedo did have professional indemnity insurance cover by Dental Protection (a mutual), but failed to notify his insurer about the claim so that the insurer, lawfully, repudiated cover. The Forum Dental Practice, a limited company, did not have insurance cover for the clinical negligence of associates such as Dr Agedo. HHJ Belcher found that the Defendant was liable both under a non-delegable duty and under vicarious liability for its associate dentist’s negligence, albeit that the Supreme Court had not yet handed down judgment in the Various Claimants v Barclays Bank PLC appeal.

In Breakingbury the Claimant sued the Defendant, a retired dentist, owner of a dental practice for negligence between 2008 and 2012. The NHS contracts were under the NHS (General Dental Services) Regulations 2005 (as amended) ie the same in essence as in Hughes v Rattan below. The Defendant contracted with dentists on the British Dental Association standard terms – again, the same as in Hughes v Rattan below. HHJ Harrison found that the Defendant was liable both under a non-delegable duty and under vicarious liability for his associate dentists’ negligence on the BDA standard associate contracts.

Non-Delegable Duty

The leading case on a non-delegable duty is Woodland v Swimming Teachers Association & Others [2014] AC 537. Lord Sumption there set out the five necessary conditions to establish a non-delegable duty:

1. the duty is owed to a child/patient/ dependent person/ vulnerable person;

2. there has to be an antecedent relationship between the Claimant (child, patient, dependent/vulnerable person) and the Defendant:

a.  independent of the negligence

b. placing the Claimant in the custody, charge or care of the Defendant,

c. and from which antecedent relationship the Court could impute an assumption of responsibility by the Defendant,

d. so that the Defendant had a positive duty to protect the Claimant from harm (and not just a duty to avoid conduct foreseeably harmful to the Claimant);

[the “Control Test”];

3. the Claimant has no control over how the Defendant performs its positive duties (such as by performing them directly, or by employees, or by other third parties, for example independent contractors/ the self-employed);

4. the Defendant then delegates either all or part of its positive duty assumed to the Claimant (this positive duty to protect the Claimant from harm) to a Third Party, so that the Third Party has either all or part of the Defendant’s custody, charge or care of the Claimant, and thus the element of control;

5. the Third Party, not collaterally but in the performance of the positive duty assumed by the Defendant to the Claimant and delegated by the Defendant to the Third Party, is then negligent as to the Claimant (not protecting the Claimant from harm).

For there to be a non-delegable duty, each of the five necessary conditions above must apply.

Stage 2 of Woodland has the Defendant with a “Control Test” over the Claimant, while at the same time Stage 3 of Woodland has the Claimant with a “No Control Test” over how the Defendant performs the positive duties.

Hughes v Rattan

In Hughes v Rattan the Court of Appeal expressly and throughout followed Woodland, as had the first-instance judges, and there is really no gloss from the Court of Appeal on the Woodland five-stage test. The Hughes v Rattan case is therefore the highest appellate authority so far on the correct application of the Woodland test to a clinical negligence setting.

“Non-delegable duty” – confusingly – does not mean that a party cannot lawfully delegate the performance of that duty. What “Non-delegable Duty” means generally is that a party may lawfully delegate the performance of that duty to a third party, but the delegating party is liable for the performance (and thus has liability from negligent performance and omission) by the delegated third party performer.

In Hughes v Rattan the Defendant (the Appellant) disputed Stages 1, 2 and 3 of the Woodland test, and lost on all. Many of the facts in Rattan were not in dispute on appeal.

The NHS (General Dental Services) Regulations 2005 (as amended) applied. The Primary Care Trust had an NHS General Dental Services Contract with the Defendant, Dr Rattan, the Contractor. Dr Rattan had to carry out a certain number of UDAs – Units of Dental Activity – for the PCT within the NHS. He was both able to employ others, and to sub-contract to others to perform dental services to fulfil that contract – subject to terms in the GDS Contract, including his taking reasonable steps to ensure that:

(a) It was reasonable to sub-contract;

(b) The Sub-Contractor was qualified and competent;

(c) The Sub-Contractor did not himself sub-contract;

(d) The Sub-Contractor had adequate insurance.

Dr Rattan used standard British Dental Association terms on which to contract with three dentists – “Performers”. The BDA contracts between Dr Rattan the Contractor and the three Performers included:

(a) The Performers being self-employed, liable for their own tax and national insurance;

(b) The Performers being able to use the Contractor’s facilities;

(c) The Performers being able to take 21 days of holiday a year;

(d) The Performers indemnifying the Contractor for his liabilities caused by them;

(e) The Performers having 24-month and/or 2-mile restrictive covenants;

(f) The Performers being able to work for others at the same time;

(g) The Performers having their own insurance.

Dr Rattan collected NHS charges from the PCT, and, where applicable, from the patients, who had to pay NHS treatment charges. Dr Rattan and the Performers took 50-50 the fees for NHS treatment.

The Claimant Mrs Hughes alleged negligence from August 2009 to December 2015 by four dentists. There was a trial on the preliminary issue of whether Dr Rattan was liable for the acts and omissions either by a non-delegable duty of care or by vicarious liability. One of the four dentists was a trainee in the employment of Dr Rattan. There was no dispute that Dr Rattan was vicariously liable for the negligent acts and omissions of this employed trainee.

The disputed facts included whether the Claimant was a “patient of the practice”. The Claimant never asked for a particular dentist. The Claimant could have asked for (and probably got, by inference) a particular dentist.

In simple, decisive terms, Bean LJ held that the Claimant was a “patient of the practice”, with the forms being consistent with this and the extraneous factor that the associate dentists had restrictive covenants about them treating “patients of the practice”. He addressed the stages one, two and three of the five-stage Woodland test, those in dispute, as being met, because:

(1) A “patient” is a patient in the normal meaning eg someone receiving dental (and presumably other medical) treatment;

(2) There was an antecedent relationship by the Claimant signing the Personal Dental Treatment plan, an NHS requirement, which put the Claimant in the care of the Defendant as owner of the practice, who thereby assumed a positive duty to protect the Claimant from harm, not just to avoid reasonably foreseeable injury {the “Control Test”};

(3) The Claimant had no choice about how the Defendant performed the duties – effectively, being able to express a preference as to who did it, and being able to consent and to refuse consent to treatment were not “control”; there is no difference between a patient with full capacity who is free and a patient with full capacity {the “No Control” Test}.

Vicarious Liability

Vicarious liability is the liability of one person for torts committed by another person, without fault on the part of the first person. This does not exempt the second person from (joint) liability in tort. Vicarious liability depends upon the relationship between the first and the second person (eg employer-employee) and upon the connection between the first person and the tort by the second person (eg the tort being within the scope of second person’s employment by the first person employee).

Vicarious liability may extend further than liability for the negligent acts and omissions of the second person. Indeed, the acts and omissions may not be negligent but deliberate in another sense e.g. vicarious liability of educational, religious and other establishments for sexual assaults by employees.

In Hughes v Rattan the Court of Appeal overturned the first-instance trial judge in her finding that Dr Rattan was also vicariously liable for the negligence of his Performers, the self-employed dentists.

However, given that the Court of Appeal upheld the finding that Dr Rattan had a non-delegable duty for the negligent acts and omissions of his Performers, this did not matter in this case to the outcome: the Defendant, Dr Rattan, was liable on the direct, non-delegable duty basis.

The highest and most recent authority up to the point of the Court of Appeal’s decision in February 2022 on vicarious liability was Various Claimants v Barclays Bank PLC [2020] UKSC 13 per Baroness Hale at paragraph 27. (The Court of Appeal in Rattan used this, probably above all.)

“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.”

This is a multi-factorial approach. In other words, Claimants and Defendants have to try to weigh up the factors for and against vicarious liability in each case to see whether the relationship between contractor and sub-contractor was sufficiently akin to employment to make it fair and just to impose vicarious liability on the contractor.

Because most of the primary facts were not in dispute, the Court of Appeal did look into, and ultimately interfere with, the first-instance judge’s finding that the Defendant Dr Rattan was vicariously liable for the Performers, the three allegedly-negligent dentists.

In simple, decisive terms again Bean LJ found that the question was whether the individual dentists were in a relationship with the Defendant either akin to or analogous to employment, and the answer was that they were not, principally because on the contractual basis they were in business on their own account, not on the Defendant owner’s account.

Bean LJ listed nine factors in combination as being why there was no relationship akin to / analogous to employment:

1. The Performers being free to work for as many or as few hours as they wished;
2. The Performers were able to work for – and some did work for – other practice owners;
3. Neither in contract nor in fact had Dr Rattan control over the Performers’ clinical judgment and execution of treatment;
4. The Performers chose the laboratories used, and paid 50% of the laboratory fees;
5. The Performers were responsible for tax and NI, with the HMRC treating them as independent contractors;
6. The Performers ran some financial risks of bad debts;
7. They were responsible for their own tax and NI;
8. They had to pay for their own professional clothing and development and any equipment not provided by the practice;
9. There was no disciplinary and grievance procedure.

Bean LJ put particular weight on factors one and two above, and overturned the first-instance decision “with some hesitation” [paragraph 91].

Of the factors the other way, showing some control by Dr Rattan over the Performers, the fact that the Performers had a contractual duty to follow the Practice Owner’s, Dr Rattan’s, policies and procedures, did not much matter, in that there were no policies and procedures relevant to show control.

Some of the factors seem to be ones much discounted elsewhere in cases (eg when hospital used to aver that they were not vicariously liable for their surgeons, because they just could not tell their surgeons what to do and how to do it). What the risk of bad debts was, when the NHS paid for the treatments, is hard to tell. Responsibility for tax and for NI is a traditional factor, very weak in that, if a person were on PAYE, it would be next to impossible to argue that this person was not an employee – the argument for not being an employee cannot usually begin without a person having different tax provisions from an employee’s usual PAYE position, and the argument for not even being a worker also does not usually begin without a person doing his own tax returns.

Since Hughes v Rattan in the Court of Appeal, the Supreme Court has looked again at vicarious liability: Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15. That was a sexual abuse case. S, an elder of the congregation, raped BXB, the Claimant, after T, another elder of the congregation and the father of S, told BXB to go on with the relationship. There was a finding that “but for” the relationship of S being an elder of the congregation of which BXB was a member, there would not have been the rape. This, however, was not a decisive point in the three-stage test.

The BXB case has a three-stage test (the third stage is probably the new addition):

(1) Was there employment/ a relationship akin to employment between the Defendant and the wrongdoer?

(2) Was there a close connection between the act and the relationship of employment/ quasi-employment [the link between the wrongdoing/tort and the relationship]?

(3) After looking at all the circumstances, was it still just and fair to impose vicarious liability?

The Claimant failed and the Defendant succeeded, because the unauthorized act was not so closely connected with the authorized acts of S in the course of quasi-employment that the unauthorized act, the sexual abuse, was not considered fairly and properly to be within the course of quasi-employment, and also because the policy of vicarious liability also did not justify the imposition of vicarious liability in such circumstances.

Thus BXB, post-dating Hughes v Rattan, is not going to matter in almost all clinical negligence cases, where stage one, not stages two and three, probably matters most.

Sejpal v Rodericks Dental Ltd [2022] EAT 91 [2022] ICR 1339 mentions Hughes v Rattan, but is an appeal in the Employment Appeal Tribunal limited to holding that the Claimant, an associate dentist on a contract with the Defendant, did provide personal work/service under a contract (in an employment case) consistent with her being a worker rather  than independent contractor. The EAT then remitted the remaining question of whether the Defendant was a client/customer of the Claimant inconsistent with her being a worker to an Employment Tribunal. (If the Claimant were a worker, this would probably fit the “akin to employment” relationship, rendering the Defendant vicariously liable for the Claimant’s work, were that to have been an issue in a clinical negligence claim.)

Pawley v Whitecross Dental Care Ltd [2021] EWCA Civ 1827 mentions only at Paragraph 33 the first-instance decision of Hughes v Rattan, because it was before the appeal judgment in the Court of Appeal. This was a case about a Claimant having to join a dentist as a Defendant at the existing Defendants’ application, which the Court of Appeal overturned.

Mabey v Kularni [2022] 11 WLUK 705 the first-instance Judge, HHJ James, found that there was neither vicarious liability for a consultant surgeon on the hospital nor direct liability for the consultant surgeon on the hospital. This was about private care and not about NHS care. The Claimant paid the hospital for part of the treatment, and the surgeon separately for his treatment. The documents stressed how the surgeon was not an employee and agent of the hospital. The judge held that the Claimant was a patient of the surgeon. This is not surprizing, because the contractual documents and payments showed that the Claimant had contracted with the surgeon/ his own surgical company, and the allegations of negligence and contract were about the surgery, not about the hospital stay and hospital treatment.

Practical Outcomes

First, where the NHS (General Dental Services) Regulations 2005 (as amended) apply as to the NHS and the practice owner, Claimants can probably sue in safety the Contractor/s (the Practice Owner/s). However, each case will turn on its own facts. Anecdotally, dental practices by their insurers are often now accepting that they owe non-delegable duties in the pre-action protocol.

Second, the same logic should apply, but still may have to be tested, to other such NHS contracts, not least with GPs.

Third, out of caution, Claimants should send letters of claim to the Practice Owners, asking for a written admission of their being liable for the negligence of any self-employed practitioner covered, while making the point that, in the absence of any such written admission the Claimants may have to pursue also the self-employed practitioners, and may pursue the unnecessary costs of so doing (either win or lose) from the Practice Owners for such.

Fourth, potential Defendants – Practice Owners – should have insurance covering the negligent acts and omissions of their self-employed contractors (the “Performers” in the Rattan context). In the NHS GDS contract Dr Rattan had an obligation to hold adequate insurance “against liability arising from negligent performance of Clinical Services under the Contract”. However, it may be that the Practice Owners do not have insurance cover for work done outside the NHS contract by “Performers”, although there may be contractual liability on the Practice Owners in such non-NHS work.

Fifth, changes and reforms in the NHS may alter the position again.

Sixth, the value of a claim against a Practice Owner still depends on assessments of the alleged negligence at each point, and overall. For instance, the earliest allegation of negligence might be the most valuable for quantum, with the whole of the following pain, suffering and losses flowing from that, and with causation easiest to prove, but breach might be hardest to prove at this point.

Seventh, the higher courts maintain the distinction for vicarious liability between employment/ a relationship akin to employment and independent contracting, such that as a starting point, finding a relationship “akin to employment” where otherwise it seems to be and is described as “self-employment” and/or “independent contracting”, is going to be hard and risky for Claimants.

Eighth, Hughes v Rattan applies to the tort of negligence – only and not to contractual claims, whether for negligence or otherwise. The Mabey v Kularni case above illustrates, in a straightforward fashion, that, where there are contractual arrangements for private care outside NHS provision, then the contractual responsibilities come to the fore, rather than direct liability/ non-delegable duties.