Vicarious Liability (VL) and Non-Delegable Duty Of Care (NDDOC)

Since early 2020, there has suddenly been a lot of discussion in dental circles about the legal concepts of vicarious liability and non-delegable duty of care.  These issues have been of particular concern to dental practice owners who, for many years, rested assured that claims arising from treatment performed by self-employed associates in their practices would be pursued against those associates.

At Dental Defence Society, your membership includes protection against vicarious liability (VL) and/or non-delegable duty of care (NDDOC) claims arising from treatment provided by associates in your practice.  Our Executive Committee are also involved in ongoing discussions with other indemnity organisations, insurers and dental representative bodies, such as the BDA, with a view to agreeing practical solutions which may spare owners the stress of being brought into legal claims unnecessarily.

Whilst that work is ongoing, we thought our members might find it helpful to understand the differences between VL and NDDOC and why these legal concepts have become so topical in dentistry.  An explanation appears below.  Together with our legal partners, we have also drafted a set of amendments to the BDA standard associate contract, with a view to strengthening the protection of each party’s status.  If you are a member of Dental Defence Society and would like to receive further information, please get in touch.

What is the difference between Vicarious Liability (VL) and Non-Delegable Duty Of Care (NDDOC)?

Vicarious liability (VL)

VL is a rule of law under which a party may be held liable for the wrongdoing of someone else under their control.  The classic example is that an employer is, generally speaking, liable for the actions of their employee.  In contrast, for many years the general rule has been that a party is not liable for negligence committed by a third party independent contractor.

Dental practice owners do not routinely engage associate dentists as employees.  Traditionally, associate dentists within a practice have been engaged as self-employed, independent contractors who hold their own indemnity or insurance in respect of their work.  As such, any patient claims arising from that work have been pursued against the associate dentists rather than the practice owners and the question of VL has not arisen.

If VL is found to exist, it means that the principal/practice owner will, like an employer, be liable for the actions of associate dentists working in their practice.

Non-delegable duty of care (NDDOC)

NDDOC is a similar legal concept to VL.  All dentists owe a duty of care to their patients and, in general terms, a duty of care which is owed to someone may be delegated.  However, the Supreme Court has held that, in some circumstances, the duty of care may not be delegated to another party.  Whether a NDDOC exists is defined by reference to a number of features in a given case, for example where the claimant is a patient or a child, or for some other reason is especially vulnerable.

If a particular duty of care is found to be non-delegable, it means that the principal/practice owner will be liable for the negligence of any third party, such as an associate dentist, to whom they delegated the work.

Why are VL and NDDOC so topical?

Since early 2020, the courts have considered a number of dental negligence claims involving issues of VL and NDDOC.  In the case of Ramdhean v Agedo and The Forum Dental Practice, The Forum Dental Practice was held to be liable, on the basis of both VL and NDDOC, for the actions of a self-employed specialist in oral surgery, Mr Agedo, whose whereabouts were unknown (and who had been erased from the GDC register) by the time of Ms Ramdhean’s claim.  In the case of Breakingbury v Croad, retired dentist and practice owner Mr Croad was held to be liable, on the basis of both VL and NDDOC, for dental work carried out by self-employed associates between 8 and 12 years following his own retirement from clinical work and some 9 further years after he had sold the practice.

Hughes v Rattan

Both of the cases mentioned above were decided at County Court level, meaning they did not form a binding precedent.  However, in 2021 a similar case was decided at High Court level, thereby giving rise to an authority.  In the case of Hughes v Rattan, Mr Rattan was found to be liable, on the basis of both VL and NDDOC, for dental treatment provided to Mrs Hughes by three self-employed associates in the practice which he owned.  A noteworthy point in the Hughes v Rattan case is that the three associate dentists were identified, held adequate indemnity or insurance and were willing to respond to Mrs Hughes’ claim.  However, Mrs Hughes (via her solicitors, The Dental Law Partnership), actively chose to pursue Mr Rattan rather than the associate dentists who performed her treatment.

Mr Rattan received permission to challenge this decision before the Court of Appeal, stating that he was doing so because “its potential impact cannot be understated…and poses a risk to the long-established arrangements that exist between practice owners and their associates”.

On 4 February 2022, the Court of Appeal handed down Judgment.  It found that Mr Rattan was not liable to Mrs Hughes under VL.  However, it found that Mr Rattan was liable to Mrs Hughes under NDDOC.  In other words, Mr Rattan’s duty of care to Mrs Hughes as a patient of his dental practice could not be delegated to the associates who actually performed her treatment.

What next?

It’s important to bear in mind that this is an evolving area of law.  Mr Rattan has said that he is pleased about the decision on VL but “will now explore whether we can take the fight on non-delegable duty of care to the Supreme Court”.

As things currently stand, dental practice owners should ensure that they hold cover in respect of claims pursued against them on a VL or NDDOC basis.  As little as 10 years ago, no such indemnity scheme or insurance policy existed within the market.  However, in modern dentistry, it’s an essential.