Every business owes a duty of care to its workers and visitors to their premises but understanding the extent of that duty may not be fully appreciated – potentially exposing the company to the risk of a claim. The commercial lawyers at ParrisWhittaker are specialist advisers to businesses on their contractual and common law duties.
A recent ruling illustrates how important it is for company owners – in this case, the owner of a dental practice in England – to appreciate the significance of their duty of care and to what extent it binds them. The ruling1 is significant because it was handed down by the UK’s Court of Appeal and has persuasive authority on the courts in The Bahamas.
What’s the background?
A patient visited the dental surgery on various occasions over a six-year period. During that time, she was treated by a number of different dentists – four of which she said were negligent in how they treated her. She brought a damages claim against the surgery owner/sole principal dentist for £40,000 .
Three of the dentists she claimed were negligent were self-employed dental associates; and so at issue was whether the defendant was liable for the negligent treatment actually provided by the self-employed dentists.
The Court of Appeal ruled that the defendant did owe a non-delegable duty of care to the claimant in relation to the treatment she was given. It’s reasoning was that she was clearly a patient of the practice itself and that relationship placed her in the defendant’s ‘actual care’ as practice owner.
In addition, the claimant had no control over how the defendant decided to perform his obligations.
Not vicariously liable
However, it’s worth businesses noting that the appeal court made clear that the dental practice owner was not vicariously liability for the treatment received. Vicarious liability is a rule imposing liability on a business as employer for wrong doing committed by an employee in the course of their work.
The appeal court went on to suggest the factors and principles businesses would need to take into account when considering in what circumstances they may be liable for a worker’s actions or omissions. The factors relate to autonomy of the worker and include:
Is the worker free to work for the business for as many or as few hours as they wish?
Are they free to work for other businesses?
Do you have any right to control the work being carried out?
Is the worker responsible for their own tax and NI; treated as independent contractors by HMRC; and required to carry personal professional indemnity insurance?
Does employer and worker share the risk of bad debts?
Is there any disciplinary or grievance procedure applicable to the worker?
The dental associates in this case ticked these boxes, which meant the defendant was not liable under the vicarious liability principle. It was a moot point, however, as the defendant owed a duty of care to the claimant which he could not delegate to those associates.
What does this mean?
All business owners need to ensure they understand their duty of care to clients and customers and the potential legal risks of delegating the practical operations of the business to other workers.
The commercial solicitors at ParrisWhittaker are experienced in supporting businesses in all industries in understanding the nature and extent of their legal duties to other workers and individuals. For specialist advice, contact us at []
