09
Dec
21
Briefings, Medical Law
Medical Law Briefing - December 2021

Medical treatment and non-delegable duties of care

  1. A recent trio of dental treatment claims (Ramdhean v Agedo (2020), Breakingbury v Croad (2021) and Hughes v Rattan (2021)) have all resulted in findings that a dental practice (or its owner) owes a non-delegable duty of care to the end user. Consequent to these decisions and the related High Court decisions of Razumas v Ministry of Justice (2018) and Hopkins v Akramy (2020), there is now greater clarity around the circumstances in which a non-delegable duty of care is owed to the recipient of healthcare services, and by whom, and this clarity is to be welcomed.

 

  1. In this article I shall summarise in brief the law regarding non-delegable duties, take a tour through some of the leading cases involving non-delegable duties in healthcare settings, and extract what I regard as the decisive factors in determining whether a non-delegable duty is owed, and by whom.

Non-delegable duties of care: the law

  1. As will be familiar, a non-delegable duty is a personal duty, not just to take reasonable care in performing work, but to procure the reasonable performance of work delegated to others. It is thus an exception – along with vicarious liability – to the general rule that the law of negligence is fault-based.  Importantly for our purposes it enables a litigant to bring their claim against (typically) a large corporate entity when the tortfeasor himself is un-insured or under-insured.  Conversely it exposes such an entity to significant liability risks; these risks can be minimised by ensuring that any independent contractors are financially sound and covered by adequate insurance, and that any contract contains a suitable indemnity clause.

 

  1. The landmark case of Woodland v Swimming Teachers Association and ors [2013] UKSC 66; [2014] A.C. 537 gives the legal test for a non-delegable duty to arise at common law. Lord Sumption, giving the leading judgment, stated that the starting point was a relationship between the two parties giving rise to a positive duty on the part of the defendant to protect a particular class of persons (including the claimant) against a particular class of risks.  At paragraph 23 he identified the five defining features of a non-delegable duty.  Imposition of such a duty would also need (paragraph 25) to be fair, just and reasonable, although the Supreme Court in Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] A.C. 355 at paragraph 36 has clarified that this threshold is met if the five defining features are satisfied.

 

Read the Medical Law Briefing by Susanna Bennett in full here.

 

Written by or involving: Susanna Bennett

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