Medical Law Briefing: December 2021

Medical treatment and non-delegable duties of care

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.

Read the Medical Law Briefing by Susanna Bennett in full here.