Iris Hughes v Rajendra Rattan
|England & Wales
|Lady Justice Simler,Lady Justice Nicola Davies,Lord Justice Bean
|04 February 2022
| EWCA Civ 107
|Case No: B3/2021/1461/QBENF
|Court of Appeal (Civil Division)
 EWCA Civ 107
Lord Justice Bean
Lady Justice Nicola Davies
Lady Justice Simler
Case No: B3/2021/1461/QBENF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HEATHER WILLIAMS QC sitting as a deputy judge of the High Court
QB 2021 000978
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Davy (instructed by Dental Protection Limited Leeds) for the Appellant Defendant
Ben Collins QC (instructed by The Dental Law Partnership) for the Respondent Claimant
Hearing date: 13 January 2022
This judgment was handed down remotely at 10:30 on 4 February 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
The Claimant Iris Hughes received dental treatment on a number of occasions between August 2009 and December 2015 at the Manor Park Dental Practice, West Wickham, Kent (“the Practice”). The Defendant Dr Rajendra Rattan was then the owner and sole principal dentist at the Practice, as he had been since 1986. The Claimant was not treated by the Defendant personally but by six different dentists. She alleges that the treatment by four of them – Drs Boghani, Beattie, Fur, and Khan – was negligent. Dr Khan was a trainee employed by Dr Rattan under a contract of employment, and it is no longer in issue that Dr Rattan is vicariously liable for any negligence proved against him. Drs Boghani, Beattie and Fur, however, were self-employed Associate Dentists, and the preliminary issue raised on this appeal is whether Dr Rattan is liable for their acts or omissions by virtue of either a non-delegable duty of care or vicarious liability.
The claim was issued in the County Court on 7 September 2018, originally for damages limited to £20,000 (later amended to £40,000). On 11 February 2020 District Judge Fine ordered trial of the preliminary issue. It was originally listed for a one day hearing in the County Court before DJ Fine, but was never tried in the County Court. On 19 February 2021 HH Judge Backhouse made an order transferring the preliminary issue to the High Court, where it was heard by Heather Williams QC (as she then was: now Heather Williams J) (“the judge”) on 9 and 10 June 2021. By a reserved judgment handed down on 21 July 2021 the judge determined the preliminary issue in favour of the Claimant on both grounds. With permission granted by Asplin LJ the Defendant appeals to this court. It should be emphasised that the merits of the claim have yet to be tried.
The parties helpfully prepared a List of Agreed and Disputed Facts. The agreed facts were stated to be as follows:
“1. Between 28 August 2009 and 1 December 2015 the Claimant was a patient who attended at the Manor Park Dental Practice, 88 Manor Park Road, West Wickham, Kent, a dental practice owned by the Defendant, for consultations and dental treatment.
2. Between 28 August 2009 and 6 November 2012 the Claimant was provided with NHS dental care at the practice by 4 dentists, Dr Shahin Boghani, Dr William Beattie, Dr Rubina Fur and Dr Yavar Khan.
3. On first attending at the Practice the Claimant was asked to fill out a form at reception.
4. NHS dental care was provided at the Defendant's practice pursuant to a Contract between the PCT and the Defendant (the General Dental Services Contract) under which the Defendant contracted to provide dental services to patients at the practice. The GDS Contract provided for an annual quantity of courses of dental treatment (and, after variation, time spent on dental treatment) to be provided to patients at the practice. The GDS Contract allowed the Defendant as Contractor to sub-contract his obligations arising under the Contract, alternatively to employ or engage other dentists to carry out the dental treatment (styled Performers under the Contract).
5. Dr Khan was a trainee at the relevant time and was employed by the Defendant as an assistant dentist pursuant to a contract of employment for vocational training. In respect of NHS work he was also allocated to be a Performer under the GDS Contract.
6. Drs Shahin Boghani, Dr William Beattie, and Dr Rubina Fur were engaged by the Defendant as Associate Dentists pursuant to associate agreements. They were not employed under contracts of employment with the Defendant. In respect of NHS work they were also Performers under the GDS Contract.
7. The Claimant was a patient of Dr Boghani, Dr Beattie, Dr Fur and Dr Khan whilst undergoing treatment provided by them.
8. Dr Boghani, Dr Beattie, Dr Fur and Dr Khan:
8.1 Each personally held professional indemnity cover for negligence claims.
8.2 Were responsible for the standard of their own work.
8.3 Were responsible for their own tax and national insurance contributions.
8.4 Did not receive sick pay or pension from the Defendant.
8.5 Had complete clinical control over the dental treatment provided to the Claimant at each of their consultations.
8.6 Could work for other owners or businesses if they wanted.
8.7 Were responsible for their own clinical audits of their patients.”
The Agreed Facts said at paragraph 9 that the Defendant did not hold direct indemnity cover for liability as a practice owner for any negligence on the part of the Associate Dentists or Dr Khan in the dental treatment they provided. However, by the time of the hearing, the Defendant's indemnity provider had indicated that practice owners with three or fewer practices would now be covered for such liabilities, whether they arose on a non-delegable duty or a vicarious liability basis. Paragraph 9 of the Agreed Facts also recorded that the Defendant is contractually entitled to an indemnity from each of the Associate Dentists.
The document listed what were said to be the areas of factual dispute at paragraphs 10 – 12. Whether Mrs Hughes was “a patient of the Practice” at the relevant times was in issue. The document stated:
“The Claimant's account was: (i) at no time did she choose which dentist treated her. She was simply given an appointment with a named dentist. She did not know which dentist she would be seeing until she was called through to the surgery; (ii) she made her appointments at reception, not with the individual dentists and saw whichever dentist was allocated to her when she arrived; (iii) she made her payments at reception, never to any individual dentist; and (iv) as far as she was concerned she was a patient of the Practice.
However, the Defendant's position was that: (i) as a new patient, the Claimant was asked if she wanted to be seen by a particular dentist and she did not express a preference; (ii) thereafter it was open to her to request that she be seen by a particular dentist, but she did not do so; and (iii) in the absence of a request, the Claimant would be allocated her usual dentist or an alternative dentist if they were not available.”
Individuals were not registered with the Practice in the sense that they had a status which conferred a right to return for other treatment after their course of treatment was completed. Equally, they were free to elect to have future treatment at another dental practice of their choosing.
New patients who attended the Practice were given a medical history form to complete by the receptionist. This included a checklist of medical questions and fields for insertion of the person's contact details. Records of their dental treatment were held at the Practice.
Both NHS and private patients were provided with a “Personal Dental Treatment Plan” in respect of each course of treatment, indicating the diagnosis, proposed treatment and the charge (either the full charge for private treatment; or the banded figure if it was on the NHS). The judge was shown, as we were, an example of the form. The top of the form has fields for the “Provider's details”. It was accepted that this referred to the Contractor under the relevant General Dental Services Contract; and Dr Rattan said in evidence before the judge that this box would be completed with a stamp bearing his name. Under the field for inclusion of the patient's details, the text read: “The dentist named on this form is providing you with a course of treatment. Information regarding your NHS dental treatment is detailed overleaf”. No other dentist was named on the form.
Mrs Hughes was born on 21 October 1956. She first attended the Practice on 28 August 2009 as she required a filling. She selected the Practice on the recommendation of her daughter, who accompanied her on that occasion. On attendance she was asked by the receptionist to fill out a form and duly did so.
Mrs Hughes said in her oral evidence that her daughter had recommended a dentist at the Practice called “Andy”, but when she arranged the appointment she was told that he was fully booked. She said the receptionist did not tell her when she made the booking who the appointment would be with and that she first knew that her dentist on that occasion would be Dr Fur when she came to get her from the waiting room. She said that after her treatment Dr Fur told her she would need a follow-up, so she made an appointment at the reception desk to see Dr Fur again. She paid at the reception desk at the end of each appointment.
Dr Rattan agreed that all appointments were made via the Practice reception staff. He said that the normal procedure was for the receptionist to tell the person making the booking the name of the dentist they would be seeing as well as the date and time of the appointment. He had no direct knowledge of whether this had been done with the Claimant either for her first appointment or on subsequent occasions.
The Defendant emphasised before the judge that the Claimant was free to request the services of a particular dentist. He said...
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