DIRECT AND VICARIOUS LIABILITY FOR SELF-EMPLOYED MEDICAL PRACTITIONERS WORKING WITHIN A PRACTICE: CLAIMANT SUCCESSFUL IN HER ARGUMENTS

I am grateful to Heather Owen from the Dental Law Partnership  for sending me a copy of the decision of HHJ Harrison in Breakingbury -v- Croad (Cardiff County Court 19th April 2021), a copy of which is available here      Breakingbury v Croad Judgment (1).  The judgment deals with issues of direct and vicarious liability of a dental practice for self-employed dentists working within that practice. It also deals with the issue of limitation and date of knowledge.

 

THE CASE

The claimant brought an action for negligence in relation to dental treatment.  The work was carried out between 2008 – 2012.  The work had been done at a dental practice. At the time in question the defendant had retired as a dentist (having retired in 2000) but complied with his contractual relationship with the Local Health Board by a series of associate dentists working within the practice umbrella.

THE ISSUE: WAS THE DEFENDANT LIABLE FOR THE ASSOCIATE DENTISTS?

The defendant denied liability on the grounds that the dentists that carried out the work were all self-employed.  The defendant also pleaded limitation.

LIABILITY FOR THE “SELF-EMPLOYED” DENTISTS

The judge found that the practice was liable for the negligence of the dentists that did the work.

The judge found that:

  • The defendant owed a non-delegable duty of care, akin to the principles set out in Woodland -v- Swimming Teachers Association (2014) AC 537.
  • The claimant regarded herself as a patient of the “practice”, not any individual dentist. She did not choose which dentist to deal with and when a dentist moved on she was allocated a new dentist by the practice.
  • When she had to make a payment the claimant paid the practice and not any individual dentist.
  • The claimant had no control over who did the work, it was all done by the practice.
  • The allegations of negligence related to a central function of the practice.
  • The judge was unable to conclude that the associate dentists that did the work were in business on their own account.
  • There was sufficient control of the practice over the dentists for this to be regarded as “akin to employment”.

LIMITATION

The judge rejected the argument that the action was statute barred. The negligence occurred as part of ongoing treatment and the claimant regularly returned to the practice.

The judge found that, in any event, if it had been necessary he would have exercised his discretion under S.33 of the Limitation Act 1980 to allow the claim to continue. A fair trial of the issue of liability and quantum could still take place.