Mrs Iris Hughes v Mr Rajendra Rattan

Hearing dates: 9 & 10 June 2021

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Heather Williams QC

Heather Williams QC (sitting as a Deputy High Court Judge):

Introduction

This is a dental negligence claim brought against the Defendant, Mr Rattan, the former owner of the Manor Park Dental Practice (“the Practice”). The claim arises from NHS dental treatment provided to the Claimant, Mrs Hughes, by four dentists engaged at the Practice, Drs Shahin Boghani, William Beattie, Rubina Fur and Yavar Khan. Dr Khan was an employed assistant dentist; the others were self-employed associate dentists. I will refer to the four collectively as “the Treating Dentists” and to the three associates as “the Associate Dentists”. Save as I indicate in paragraph 3 below, the Defendant contends that as a matter of law he is not liable for the acts and omissions of the Treating Dentists.

By an Order dated 25 February 2020 District Judge Fine directed the trial of the following preliminary issues, namely:

“Whether the Defendant is liable for the acts or omissions of Drs Shahin Boghani, William Beattie, Yavar Khan and Rubina Fur by virtue of vicarious liability or a non-delegable duty of care.”

By letter dated 23 September 2020 the Defendant admitted that he was vicariously liable for the acts and omissions of Dr Khan as at the relevant time he was a trainee engaged under a contract of employment. Aside from that, the preliminary issues remain in dispute and were listed for hearing before me. I emphasise that I am solely concerned with determination of the preliminary issues and not with the merits of the alleged negligence.

A witness statement was provided on behalf of the Claimant dated 20 May 2020. The Defendant filed two statements dated 20 May 2020 (the first of these addressed disclosure issues) and a further statement dated 21 October 2020. Both parties gave oral evidence, confined to matters relating to the preliminary issues. I was also referred to the contents of an agreed bundle of documents comprising largely the Claimant's clinical records and the relevant agreements between the Defendant and the Bromley Primary Care Trust (“the PCT”) and between the Defendant and the Associate Dentists.

The parties are agreed that the question of whether the Defendant owed a non-delegable duty of care as the owner of the Practice in relation to the treatment provided by the Treating Dentists, depends upon the application of the factors identified by the Supreme Court in Woodland v Swimming Teachers Association and others [2013] UKSC 66, [2014] AC 537.

As regards the vicarious liability question, the issue is whether the relationship between the Defendant and the Associate Dentists was sufficiently akin to employment to make it fair and just to hold the former responsible for their acts and omissions. As confirmed by the Supreme Court in Various Claimants v Barclays Bank plc [2020] UKSC 13, [2020] ICR 893, this is the first of two criteria that must be shown when vicarious liability is in issue. The Defendant accepts that if this relationship criterion is met, then the second limb of the test, concerning the closeness of the connection between the relationship and the alleged wrongdoing, is satisfied.

By her Order dated 19 February 2021, HHJ Backhouse transferred these proceedings from the Central London County Court because the issues raised were legally complex and would benefit from consideration at first instance by the High Court and as the outcome would be likely to have significant consequences for other users and providers of dental services and for dental negligence litigation. Two earlier County Court cases, Ramdhean v Agedo and another, unrep. 28 January 2020 and Breakingbury v Croad, unrep. 19 April 2021, have considered similar issues, both finding in the respective claimant's favour. I am told that there has been no appeal from either of those decisions.

The factual circumstances

Agreed and disputed facts

The parties helpfully prepared a List of Agreed and Disputed Facts. It will be necessary for me to expand upon some of the agreed matters, in light of the oral evidence I heard and the relevant documentation. I will also address the matters in dispute in so far as it is necessary to do so. 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.”

Reflecting the situation at the time when the document was prepared, 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 indemnifiers 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 parties' document described 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. Further, 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.

The Defendant and the Practice

The Defendant owned the Practice for 28 years, selling it in March 2015. During the period that the Claimant received treatment, he was the sole principal dentist. In 2009 he worked at the practice three days week, but he did not personally treat Mrs Hughes at any stage. Mr Rattan owned the premises and the equipment used at the Practice. He directly employed the reception staff and the practice nurses. During the period 2009 – 2012 approximately 70% of the Practice turnover was NHS work.

The GDS...