Victorious in Vicarious Liability challenge
The first instance decision from July 2021, in the case of Hughes v Rattan, has recently been appealed by Mr Raj Rattan. The Court of Appeal has recently delivered its Judgment regarding the non-delegable duty of care and vicarious liability.
The initial claim for dental negligence was brought by the Plaintiff against Mr Rattan, Practice Principal, even though he had provided no treatment to her. Rather, the treatment received by the Plaintiff was provided by a number of other dentists, three of whom were Associate and all of whom were identifiable and willing to participate in the claim. At first instance, it was decided that Mr Rattan had both a non-delegable duty of care and was vicariously liable for the treatment provided by the Associate dentists who treated the Plaintiff.
At Appeal, Bean LJ upheld the Judge’s decision regarding the non-delegable duty of care. More significantly, however, and in recognition of the ‘test’ nature of this case, Bean LJ provided interesting obiter comments regarding the vicarious liability element of the claim. She rejected the first instance decision in this regard, expressing the view that the relationship of the Associates was not akin to employment. This was due to, amongst other issues, the Associates freedom to work as and when they wished and for other practices, their freedom regarding their clinical judgments, their bad debt risk in relation to the overall business, the fact that they had to have their own indemnity arrangements and that they paid for their own clothing and professional development. The other Lord Justices sitting concurred.
Consideration is now being given as to whether to progress to the Supreme Court to challenge the decision on the non-delegable duty of care.
This is a welcome development for all Practice Principals of Dental Practices and it may have far reaching implications for other professions falling victim to vicarious liability claims. Watch this space!
If you would like further information on the issues discussed in this article, please contact Francesca Lowry or another member of the Healthcare team.