Vicarious liability (VL) and non-delegable duty (NDD) are hot topics in a dental context. In the recent High Court case of Hughes vs. rattan the Court concluded that a dental office owner owed a non-transferable obligation to the claimant for the treatment provided by the dentists he had engaged and that the office was vicariously liable for the acts and omissions of treating dentists. While this decision is under appeal by the respondent, the issue continues to be relevant.
It is not attractive for an individual practice owner or a legal person to assume liability for the dentists he engages if the dentists are personally indemnified for this liability. Can treating dentists therefore be associated with the procedure by the defendant?
There are two ways to do this; the first is a request to join the treating dentists as defendants under part 19. The second is to bring an additional demand for contribution against the treating dentists under part 20. In the recent judgment in Pawley v Whitecross Dental Care Limited (1) and (Petrie Tucker ad Partners Limited (2) the Court of Appeal overturned lower court decisions allowing a part 19 claim when the plaintiff opposed the joinder, effectively closing that avenue to the defendants.
Part 19 allows a party to be joined under CPR 19.2 (2) when the limitation is not in issue and it is “desirable” to add the new party to resolve all issues or an issue. particular issue in the proceedings. When the statute of limitations has expired, CPR 19.5 (2) provides that the part can only be added if it is “necessary” (defined in 19.5 (3) (b) as a situation where the claim cannot be properly exercised by or against the original part unless the new part is added). However, there is an additional provision applicable to personal injury claims only in CPR 19.5 (4) which allows for the addition of a part after the limitation period expires when section 11 of the Limitation Act 1980 is not. applied with respect to the new party (that is, because a section 33 discretion has been exercised) or the issue of limitation is to be decided at trial. What CPR 19.5 (4) does not say is whether the threshold in such cases is that it is “desirable” or “necessary” to add the part.
In Pawley practices for contacting attending dentists under Part 19. A district judge allowed the claim, despite the claimant’s objection to the addition of the defendants. She considered that the choice of defendants by the Claimant had made case management difficult and considered that it was “necessary” to add the dentists so that she did not have to consider the question of the Claimant’s consent. . A county court judge upheld the district judge’s decision. He found that the district judge was entitled under subsection 19.5 (4) to consider all of the circumstances, including the overriding objective, and that she had not made a wrong decision.
The appeal to the Court of Appeal was allowed for 2 reasons:
- The Court did not give sufficient weight to the assertion that a plaintiff could not be compelled to initiate proceedings against the defendants and become liable for their costs;
- The judge mistakenly confused the issues of “necessity” and “necessary” in that he assigned a broader power under RPC 19.5 (4) which was based on “all the circumstances, including the objective primordial ”.
In the judgment, Lord Justice Stuart-Smith concluded that the plaintiff was entitled to succeed on the first ground. He concluded that it was in principle wrong for the Court to exercise the power to join a party against the will of the plaintiff, and this principle is not limited to cases where the plaintiff would potentially become liable for the costs of the new party. respondent. The Claimant was entitled to choose who she sued, despite the fact that in this case she was exposed to a greater risk of failure overall than if she had chosen to broaden the scope of her claim by also pursuing the claims. treating dentists.
With respect to ground 2, the Court noted that while 19.5 (4) is relevant, there is no clarification as to whether the threshold is that it is “desirable” or that it is ” necessary ”to add the part. Lord Justice Stuart-Smith said that there was logic in the suggestion that in a case where s. 11 is not applied by the Court, there is no further question of limitation and therefore the test should be that the addition of the part is “desirable”, but that in a case where the limitation is left at trial, the test should be that it is “necessary” to join in the fun. However, he also felt that it could be said that leaving limitation to trial means that the defense of limitation is not established and that, therefore, requiring necessity is too high a threshold.
In the end, it was held that since the Court found in favor of the plaintiff on ground 1, a threshold of expediency test (which would involve all the circumstances and the application of the objective primordial) would not be satisfied in this case.
The effect of Pawley is that requests to add defendants under Part 19 are unlikely to succeed unless the plaintiff consents, notwithstanding that the powers of Part 19 are broad enough to add a defendant when the plaintiff opposes the joinder.
However, the Court noted that it is common for Part 20 proceedings to be initiated where the defendant denies any liability to the plaintiff but asserts that if the defendant is held liable to the plaintiff, he seeks compensation or compensation. such contribution which may appear fair to the Tribunal, whether under the Civil Liability (Contribution) Act 1978 or on a contractual basis.
As such, Part 20 remains a viable avenue for adding attending dentists to the procedure. In addition, Lord Justice Stuart-Smith pointed out that if Part 20 proceedings are issued, the Court may make appropriate case management orders on the extent to which the main action’s findings are binding in the proceedings under Part 20 and vice versa. This suggests that there may be a possibility of interaction between the plaintiff and the Party 20 defendants in the litigation.