Professional protection for dental technicians vicarious liability

Since the General Dental Council registration deadline for Dental Technicians passed on 30th July 2008, the Dental Laboratories Association has seen more interest than ever before from members enquiring about their liability insurance cover. Of these enquiries, the subject of vicarious liability has been one of the hottest topics raised with Towergate MIA about Professional Protection. To help you we’ve created the following short guide with the Dental Laboratories Association summarising some of the key information about vicarious liability and how it might affect you.

What is vicarious liability?

Vicarious Liability is defined as the liability of one person for torts committed by another person.

What is a tort?

A tort is a civil wrong, in other words, an act committed by someone that could result in them having some form of liability to another because of negligence, trespass, nuisance, defamation, or breach of privacy for example.

How could this impact on you?

In terms of dental laboratories, negligence and breach of privacy are most likely to be the primary areas of concern.

The liability is dependant on the relationship between the two individuals so, as a lab owner, in order to make you vicariously liable a worker must:

1. Be your employee
2. Have committed tort in the course of their employment

You should bear in mind the wide definition of 'employee' that is used these days. A typical definition to be found is:

1. A person under contract of service or apprenticeship with the Insured
2. A person engaged in connection with a work experience or training scheme
3. A labour master or person supplied by a labour master
4. A person employed by labour only sub-contractors
5. A self-employed person working on a labour only basis under the control or supervision of the Insured
6. A person hired to or borrowed by the Insured
7. A prospective employee who is being assessed by the Insured as to his or her suitability for employment
8. any working partner or proprietor named as the Insured in the Policy Schedule provided that the working partner or proprietor is deemed to be an employee under the applicable compulsory legislation while working for the Insured in connection with the Business

Importantly, as the employer, you may be found liable in addition to the employee.

So, the claimant can sue you as an employer (vicarious liability), your employee (prime liability) or both of you (joint liability). As an employer you are vicariously liable for negligent acts or omissions by your employees in the course of employment, irrespective of whether or not the act or omission was specifically authorised by you.

To avoid vicarious liability, you must demonstrate either that your employee was not negligent (i.e. the employee was reasonably careful) or that your employee was acting in his own right rather than on your business.

 

Laboratory insurance

You will almost certainly have public and products liability insurance in place to protect you and your laboratory should you commit acts of negligence which result in injury to third parties or damage to their property. Given what has been said above, it is reasonable to expect that your insurer would also indemnify you if it was one of your employees that committed the negligent act against the third party.

It is usual to expect a third party to take action against the legal entity and not against an individual employee. Insurers, as part of ordinary insurance market practice, do not normally seek to recover their outlay to a third party made under an insurance policy. This would involve them identifying the individual employee within that legal entity who caused the loss to the third party which, in practice, might be very difficult.

Additionally, this would not be fair or in the public interest - an insurer may have paid a third party say £750,000 - should they really expect to recover this amount from an employee earning about £300 per week?

Registration for technicians

Has GDC registration for technicians affected the position outlined above to an extent where insurers of dental labs might seek to recover any outlay they make on behalf of a legal entity from the individual GDC registered employee who caused the injury to a third party? If so, what should laboratories and individuals do?

The GDC states a registered Dental Technician or their employer must have insurance if they cannot be 100% certain that a patient will not pursue them personally for a claim. Bearing this in mind it is entirely possible that the insurers of a legal entity may try to recover their outlay from an individual employee in certain circumstances if they are aware that the employee has their own insurance in place.

Most insurers' policy wordings, including those offered by Towergate MIA, contain standard conditions relating to how they might recover their outlay on claims they have paid, from other parties, or how the insurance policies of those other parties might share the cost of a claim. It is important that a dental laboratory checks its own wording in this respect.

 

Getting more advice

Not all policies operate the same way so Towergate MIA can only comment on their own laboratory product and the DLA Professional Protection scheme.

It is imperative that you check your own policy, and/or you ask your broker for their advice - after all, that is what you pay them to do.

Bear in mind that your lab could be covered by policies from more than one insurer. If so, all of your policies will need to be checked.

To find out more, or take out a Professional Protection policy, simply contact the Professional Indemnity team - Patricia Woodroff, Elizabeth Hall or Jayne Cantwell - at Towergate MIA, quoting your dental laboratory's DLA membership number.