Case Report: Breakingbury v Croad, Cardiff County Court, 19 April 2021 - Harry Peto, Temple Garden Chambers
15/06/21. The Claimant sought damages from the Defendant arising from her treatment as an NHS patient at a particular dental clinic. The Defendant was the owner of the practice at the time of the allegedly negligent acts (which were carried out at the practice but not by the Defendant personally, the Defendant having retired some years earlier).
The Defendant denied liability on the ground that the dentists who carried out the relevant work were all self-employed.
Vicarious Liability
The Court held that the Defendant was vicariously liable for the negligence of the self-employed dentists who carried out the work at the Defendant’s clinic.
The Defendant was found to have owed the Claimant a non-delegable duty of care, following Woodland v Swimming Teachers Association (2014) AC 537. The Claimant had not chosen to receive treatment from particular dentists, but from the clinic as a whole. When a dentist left the clinic, the Claimant would be allocated a new dentist (chosen by the clinic). The Claimant paid the clinic for her treatments and not individual dentists. She had no control over which dentist would treat her. Further, the allegations of negligence related to a central function of the clinic, and there was sufficient control of the clinic over the dentists for this to be regarded as ‘akin to employment’. Finally, the Judge could not conclude that the dentists who carried out the treatment were in business on their own account.
Limitation
The Defendant further sought to defend the claim on the ground of limitation.
The Court found that the action was not statute-barred, as the negligence occurred as part of ongoing treatment and the Claimant received treatment regularly. The Court stated that it would, if necessary, have exercised its discretion under s.33 of the Limitation Act 1980 in any event, as a fair trial of liability and quantum could still take place.
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