Breakingbury v Croad: Non-Delegable Duties and Vicarious Liability Considered in the Context of Claims Against Dental Practices

Articles | Tue 8th Jun, 2021

In a claim in by a patient against her dental practice where she had received negligent treatment over several years the Court held, following trial of three preliminary issues, that the owner of the dental practice, the Defendant, was liable to the Claimant on the basis that: (1) a non-delegable duty of care was owed to the Claimant; and (2) that the Defendant was vicariously liable for the negligent actions of the associate dentists operating out of the practice.

The Court also considered limitation and found for the Claimant on both the issue of ‘date of knowledge’ under ss11 and 14 Limitation Act 1980 and would in any event have disapplied the limitation period pursuant to s33 LA 1980.

Written by Katie Ayres, Barrister at 1 Chancery Lane Chambers.

Miss Lynda Breakingbury v Mr John Martin Croad (19 April 2021, Cardiff County Court)

What are the practical implications of this case?

This judgment is likely to have significant practical implications for claims against dental practices. The judgment mirrors and endorses the approach taken by HHJ Belcher in Ramdhean v The Forum Dental Practice Ltd (unreported 28 January 2020, Leeds County Court) and continues the shift towards liability being established in such claims.

It is becoming increasingly hard to argue that dental practices ought to escape liability for negligent treatment carried out by a treating associate dentist on the basis that no duty of care was owed or that no vicarious liability exists between the practice and the dentist. It now seems highly unlikely (absent some very unusual arrangement between the practice and its associate dentists) that the practice itself can escape liability for negligent treatment.

In these circumstances, it is likely to become more relevant to explore the possibility of pursuing an indemnity from the treating dentist and an analysis of the Associate Agreement and insurance position is likely to be required. Consideration of the merits of a Part 20 Claim against the treating dentist may be beneficial.

What was the background?

The Claimant sought damages from the Defendant arising out of her treatment as an NHS patient at the Fountain Dental Centre practice (‘FDC’) in Merthyr Tydfil. The Defendant retired as a dentist in around 2000 but was the owner of FDC until he sold it in 2012.

The allegations of negligence spanned the period from 2008 to 2012 and related to work carried out by the practice rather than work carried out by the Defendant personally. Notwithstanding the Defendant’s retirement as a dentist, he continued to enter into contractual relationships with the Local Health Board to provide dental services. The contractual obligations were discharged by way of a series of associate dentists working under the umbrella of FDC. Although the actual associate agreements with the dentists at FDC were not available, the Court was provided with the proforma BDA Associate Agreement which the Defendant accepted accurately represented the position. Pursuant to that arrangement the LHB would pay to the practice sums representative of dental activity; such sums would then be split 50/50 between the practice and the treating dentist.

The Claimant argued that the arrangement gave rise to a non-delegable duty of care owed by the Defendant to the Clamant and/or that the relationship between the Defendant and the treating associate dentists was ‘akin to employment’ and thereby the principle of vicarious liability arose.

The Claimant had experienced significant problems with her teeth over many years and attended FDC on numerous occasions as well as another practice sporadically. On one occasion in 2011 she was hopsitalised for 6 days due to complications arising out of an extraction (although records were no available for this in-patient stay).

The Defendant sold FDC in 2012 but had in fact relinquished the day to day control of the practice to a manager (who went on to purchase the practice) in 2011 as a result of injunction proceedings brought by the Defendant against the Local Health Board.

The Court ordered that the following issues be determined by preliminary issue: (1) The existence of a non-delegable duty of care; (2) the existence of a relationship of vicarious liability; and (3) Limitation.

What did the court decide?

Non-Delegable Duty

The Court determined that the Defendant (as owner of FDC) owed a non-delegable duty to the Claimant in respect of her treatment at the practice. The Court analysed the leading authority of Woodland v Swimming Teachers Association [2014] AC 537 in which Lord Sumption undertook a comprehensive review of the authorities and identified five ‘defining features’ relevant to the identification of cases where a non-delegable duty arises.

The Court went on to apply the five factors and concluded decisively that each of these was clearly met and as such a duty was imposed:

1. The Claimant was a ‘patient’ in the relevant sense.
2. There was an antecedent relationship between the Claimant and the Defendant (she considered herself a patient ‘of the practice’) which involved the requisite level of control and placed the Claimant in the care of the Defendant such that a positive duty arose to protect the Claimant from harm, and not merely a duty to refrain from conduct which would foreseeably cause damage.
3. The Claimant did not have control, in the relevant sense, over how the Defendant chose to perform its obligations towards her. Although she could in one sense ‘choose’ which practice to attend and indeed if to attend, this did not amount to having control for the purposes of this factor.
4. The Defendant had delegated to a third party (the associate dentists) a function (dental treatment) that was clearly integral to the duty (to provide competent dental treatment) assumed to the Claimant.
5. The associate dentists’ negligence (if proven) was not a collateral function to the function assumed by the Defendant and delegated to them.

Vicarious Liability

The Court went on to find that in any event the Defendant was vicariously liable for the acts of the associate dentists. The Court considered the leading authority on the so-called ‘second limb’ (‘akin to employment’) of vicarious liability: Various Claimants v Barclays Bank [2020] ICR 893 SC. It was not in dispute that the ‘first limb’ (‘close connection’) was satisfied.

The Court applied the five ‘policy factors’ discussed in Barclays Bank, whilst emphasizing that this exercise was not a ‘checklist’ and found that the practice was vicariously liable for the actions of the dentists. Most pertinently the Judge found that the ‘setting of targets’ for units of dental activity was relevant to the degree of control that FDC had over the dentists’ working practices and that this satisfied the Court that the relationship was indeed ‘akin to employment’. The fact that the associate dentists held their own insurance and managed their own tax arrangements did not displace this conclusion.

Limitation

The Court found that the claim had been brought within 3 years of the Claimant’s ‘date of knowledge’ for the purposes of ss11 and 14 LA 1980. Despite the Defendant’s argument that the Claimant’s hospitalization in 2011 triggered the limitation period, the Court found that there was an ongoing course of treatment which had to be assessed against the background of the Claimant’s experience of significant problems with her teeth over many years and that constructive knowledge was only gained in January 2018 at a consultation at another practice at which her dental bridge was (colourfully!) described as ‘crap’.

Further and in any event the limitation period would have been disapplied under s33 given the lack of prejudice suffered by the Defendant as a result of any delay in bringing the claim.

Case details

• Court: Cardiff County Court
• Judge: His Honour Judge Harrison
• Date of judgment: 19/4/2021

This article was first published by Lexis Nexis 27^th May 2021.