A Business’ Duty of Care: Is it Delegable?
To what extent does a business owe a duty of care, not only to its employees but also to visitors and other third parties? A key lesson for any company following a recent appeal1 is to ensure they understand when they owe a duty of care, as well as the nature of vicarious liability for breaches.
Vicarious liability is, in general terms, the rule that imposes liability on a business as employer for wrong doing committed by an employee in the course of their work.
What happened in this case?
The claimant visited a dental surgery on a number of occasions over a six-year period, and received treatment from six different dentists – four of which she said were negligent. Three were self-employed dental associates.
At issue was whether the former boss of the practice (the defendant) was liable for the claimant’s dental treatment that had been provided by the self-employed dentists.
The Court of Appeal agreed with the judge at first instance that the defendant owed a non-delegable duty of care in relation to the treatment she had been provided with. The claimant was clearly a patient of the practice itself and that relationship placed her in the defendant’s ‘actual care’ as he was the practice owner. Furthermore, she had no control over how the defendant decided to perform his obligations.
However, the appeal judges found that the defendant was not vicariously liable (though this was a moot point).
Vicarious liability
Here, it was not strictly necessary to go onto the issue of vicarious liability given that the business owner was found to have a non-delegable duty of care towards the claimant.
However, the appeal court considered the issue as it was asked to do so. It set out some important factors and principles which businesses will find a useful reference point when having to determine whether or not they could be liable for a worker’s actions or omissions.
In particular:
The dentists (as self-employed) were free to work at the practice for as many or as few hours as they wished
They were also free to work for other practice owners and business (some did so)
The defendant had no right to control, and did not control their clinical judgements or how they carried out treatment
They were responsible for their own tax and NI; were treated as independent contractors by HMRC; and were required to carry personal professional indemnity insurance
They shared the risk of bad debts
There was no disciplinary or grievance procedure
Key takeaways
Business owners and operators across healthcare and in other sectors need to ensure they understand their duty of care to service users. Where the individual is a client/patient of the business/clinic etc as a matter of fact and of law, the duty of care would invariably be non-delegable.
If a dispute arises and it is arguable that no duty of care is owed, the principle of vicarious liability ought to be considered. The overarching question is of control – to what extent does the employer exert control over the worker? Specialist advice should always be taken.
1Hughes v Rattan [2022] EWCA Civ 107
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