Breakingbury v Croad “Why be a professional – be a footballer”

The adoration bestowed upon footballers far outweighs the gratitude bestowed upon members of the professions for the work they undertake. The consequences for an unsuccessful professional are far greater than for an unsuccessful footballer. Take for example the case of the former dentist Dr Croad (Breakingbury v Croad judgment 19^th April 2021).

The legal case against the practice owner

HHJ Harrison’s judgement imposed a non-delegable duty of care upon Dr Croad, for work undertaken by associates within his practice.  The decision has caused anxiety within the  dentists profession as the case is being held out as a binding precedent.

​The facts

Ms Breakingbury, had experienced significant problems with her teeth over many years, including prior to her attendance at Fountain Dental Practice (“FDP”).  Ms Breakingbury attended FDC on numerous occasions as well as another practice sporadically. Dr Croad retired from dentistry in 2000 but owned FDP until 2012. Dr Croad never treated her. Allegedly negligent treatment was carried out by a number of associates at FDP between 2008 and 2012. The claim was made some 7 years after Dr Croad sold FDP.

In 2011 Ms Breakingbury was hospitalised for 6 days due to complications arising out of an extraction undertaken by another practice. Neither the extraction records nor the hospital records were available.  Dr Croad sold FDP in 2012, with Ms Breakinbury’s pleaded case seeking to attribute liability after the sale of FDP. At trial, it was conceded that Dr Croad could have no responsibility after he sold FDP [60].

The Circuit Judge determined the preliminary issues and imposed a “non-delegable duty of care” upon Dr Croad as the practice owner and/or vicarious liability for the acts and omissions of the treating dentists in delivering care, and determined the claim was not statute barred due to the Claimant’s knowledge. The allegations of negligent dental treatment were for a subsequent trial.

A non-delegable duty

In Woodland v Swimming Teachers Association [2014] AC 537 Lord Sumption identified 5 features to identify a non-delegable duty of care at [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.”

The term describes a duty which cannot be discharged by entrusting its performance to another agent even if that agent is apparently a competent independent contractor. In such a situation, vicarious liability can be imposed on the party that has a non-delegable duty in certain circumstances, when it is fair, just and reasonable to do so  and they become liable for that wrongful act even though they themselves do not commit the act personally.

HHJ Harrison referred to the approach of HHJ Belcher in Ramdhean v The Forum Dental Practice Ltd(unreported 28 January 2020, Leeds County Court) and made findings consistent with that judgement.

HHJ Harrison rejected Dr Croad’s attempts to distinguish Woodland v Swimming Teachers Association. Dr Croad had argued that it was mandatory for children to attend school, thus pupils are entrusted by parents to the school, who must look after them. The school and individual teachers stand in the place of parents, thus are in control of the children. In contrast, Dr Croad, had no control over Ms Breakingbury attending FDP, it being her choice to do so, and he had no control over the treatment given by the individual dentists, it being a matter of agreement between Ms Breakingbury and the dentists.

Interpreting the judgement

The non-delegable duty is said to have arisen partly because Dr Croad had a commercial contract with the NHS to deliver activity and he had delegated that duty to achieve those targets to the associates. FDP introduced patients to the associate who could choose to treat them (or not) whilst FDP retained the goodwill. HHJ Harrison concluded that the practice had an overarching obligation to ensure that the dental services provided were safe and met the expected standards.

Practices owners might have a non-delegable duty depending on the governance and contractual arrangements in a practice. With regards to the targets set and accepted by the associates, FDP was exerting control that, in the view of the judge, was sufficient to form the basis of vicarious liability and is to be regarded as “akin to employment”. HHJ Harrison concluded that the non-delegable duty of the practice owner existed even where the associates were responsible for their own tax affairs and own indemnity arrangements.

Questions raised by this case

Lots of unanswered questions arise concerning the issue of “control.” It was noted that payment was made  by Ms Breakingbury to FDP [43]. The case never really delved into the provision of facilities to associates; but the duty could possibly be demonstrated by equipment and materials being made available for use by the associates, the provision of a uniform, compliance with practice policies, clinical audits, performance reviews, and controlling the appointment times that can be worked by associates. The BDA Agreement’s meant that the associates were liable for the dental services that they provided, which sat inconsistently with Dr Croad retaining control or responsibility. It certainly raises issues as to the manner in which dental practices will operate and how they engage associates.

Dr Croad gave an undertaking to have no involvement with the dental practice to the High Court in 2011 as a result of injunction proceedings he brought against the Local Health Board. Dr Croad relinquished the day to day control of the practice to a manager (who went on to purchase the practice) in 2012. Notwithstanding the fact Dr Croad had nothing to do with the practice after the summer of 2011, HHJ Harrison concluded Dr Croad was responsible given the non-delegable duty of care [60]. That may be considered a harsh conclusion.

Ms Breakinbury could have claimed against the associates involved, but did not do so, no doubt because it was considered the practice owner was an easier target and more likely to be insured. It remains to be seen whether a large number of associate dentists would have all been negligent, but clearly, contribution proceedings will follow.

Ms Breakinbury’s lawyers failure to obtain her medical and dental records for the 2011 hospital admission, resulted in an adjournment for them to be requested and written submissions. However, the records could not be traced. HHJ Harrison rejected the arguments that i) the absence of those documents was so prejudicial that the claim should be struck out, and ii) that Ms Breakingbury must have had actual or constructive notice of the alleged defective work, because of the significance and duration of her hospital admission. Dr Croad contended that the discussions with and views tendered by the treating dentists/medical profession would have provided Ms Breakingbury with knowledge for the purposes of Section 14. The analysis of this issue at [80] may be considered scant. HHJ Harrison’s conclusion that “It is likely in such circumstances that a more generalised criticism of previous treatment would arise”, whilst overlooking the degree of attention provided by such a lengthy admission, ought surely to have filled Ms Breakingbury with actual knowledge in 2011 or sufficient knowledge for her to have investigated the treatment. In light of HHJ Harrison’s conclusion that must surely have sparked curiosity on Ms Breakinbury’s part?

Concerns

Reliance on County Court judgments sets a worrying practice as neither judgment is a binding precedent. In fairness to HHJ Harrison he recognised Ramdhean was not binding on him at [36].  Points of principle should be determined by the higher courts. However dental claims are of low value meaning that these authorities are being used by claimants as binding precedents and the judiciary encouraged to follow them.

The judgment mirrors and endorses the continued shift towards liability being established in non-delegable duty of care cases.  These cases represent a further move in what appears to be the policy of the courts to impose extended liability on professionals, apparently driven by the knowledge that the professionals have earned a living (here there was cross-examination about the livelihood derived from FDP) and the fact that professionals are or apparently should be insured.  If this is to be public policy or the direction of travel, then one might question why Parliament has not legislated. Has the time come for Parliament to legislate upon such claims?

Professionals must exercise caution over the terms of their insurance policies. It is a real possibility and worry that current insurance policies may not cover changes in the law that occur years after the inception of the policy.

It raises a wider society issue given the burdensome and onerous regulation and duties imposed upon professions. The worldwide pandemic has demonstrated the need for expert medical professionals! However, parents would presumably now encourage their offspring to become footballers or media celebrities, where there is an absence of duties and obligations. Alternatively, become a builder where you can do what you like without redress.

Julian Reed acted for the defendant in the case Breakingbury v Croad. For further information on his practice, please contact our clerking team on 020 7353 0711 via email: clerks@pumpcourtchambers.com.