Medical Law Briefing - December 2021

Published date19 December 2021
subjectMatterFood, Drugs, Healthcare, Life Sciences
Law Firm1 Chancery Lane
AuthorSusanna Bennett

1. A recent trio of dental treatment claims (Ramdhean v Agedo (2020), Breakingbury v Croad (2021) and Hughes v Rattan (2021)) have all resulted in findings that a dental practice (or its owner) owes a non-delegable duty of care to the end user. Consequent to these decisions and the related High Court decisions of Razumas v Ministry of Justice (2018) and Hopkins v Akramy (2020), there is now greater clarity around the circumstances in which a non-delegable duty of care is owed to the recipient of healthcare services, and by whom, and this clarity is to be welcomed.

2. In this article I shall summarise in brief the law regarding non-delegable duties, take a tour through some of the leading cases involving non-delegable duties in healthcare settings, and extract what I regard as the decisive factors in determining whether a non-delegable duty is owed, and by whom.

Non-delegable duties of care: the law

3. As will be familiar, a non-delegable duty is a personal duty, not just to take reasonable care in performing work, but to procure the reasonable performance of work delegated to others. It is thus an exception - along with vicarious liability - to the general rule that the law of negligence is fault-based. Importantly for our purposes it enables a litigant to bring their claim against (typically) a large corporate entity when the tortfeasor himself is un-insured or under-insured. Conversely it exposes such an entity to significant liability risks; these risks can be minimised by ensuring that any independent contractors are financially sound and covered by adequate insurance, and that any contract contains a suitable indemnity clause.

4. The landmark case of Woodland v Swimming Teachers Association and ors [2013] UKSC 66; [2014] A.C. 537 gives the legal test for a non-delegable duty to arise at common law. Lord Sumption, giving the leading judgment, stated that the starting point was a relationship between the two parties giving rise to a positive duty on the part of the defendant to protect a particular class of persons (including the claimant) against a particular class of risks. At paragraph 23 he identified the five defining features of a non-delegable duty. Imposition of such a duty would also need (paragraph 25) to be fair, just and reasonable, although the Supreme Court in Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] A.C. 355 at paragraph 36 has clarified that this threshold is met if the five defining features are satisfied.

5. Lord Sumption's five defining features are these (paragraph 23):

"(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3) The claimant has no control over how the defendant chooses to perform those obligations, ie whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him."

6. The duty owed by a hospital to its patients is identified in Woodland as a paradigmatic example of a common law non-delegable duty (along with that owed by an education authority to its pupils and by an employer to its employees): paragraph 34. This remark, although strictly obiter, reflects obiter dicta to the same effect in numerous earlier decisions by appellate courts, beginning with Gold v Essex County Council [1942] 2 K.B. 293, 301. For example, the House of Lords in X (Minors) v Bedfordshire County Council1 [1995] 2 A.C. 633 noted, "It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital", and the Court of Appeal in Farraj v King's Healthcare NHS Trust [2009] EWCA Civ 1203; [2010] 1 W.L.R. 2139 noted, ".I shall assume that a hospital generally owes a non-delegable duty to its patients to ensure that they are treated with skill and care."

7. A non-delegable duty may alternatively arise pursuant to statute, in which case it is determined according to normal principles of statutory interpretation. In Armes the Supreme Court found that a local authority did not owe a non-delegable duty to children in its care whom it had placed with foster carers pursuant to section 21 of the Child Care Act 1980. The provision stated, "A local authority shall discharge its duty . by boarding him out [i.e. placing him with foster carers]". It was held that the local authority's duty was limited to arranging for, and then monitoring, the provision of care.

8. Other decisions regarding the interpretation of written duties (whether...

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