Barclays Bank plc v Various Claimants  UKSC 13
With the majority of the world distracted by Covid-19 and the upheavals this has entailed, the Supreme Court handed down judgment on 1 April 2020 in 2 important cases, which clarify the extent of an organisation’s vicarious liability for the actions of others.
In the first of these cases (Barclays Bank plc v Various Claimants  UKSC 13) the Supreme Court held that Barclays should not be held vicariously liable for sexual assaults perpetrated by an independent doctor who carried out medical examinations on behalf of the bank. This decision is an important pause on the expansion of vicarious liability and decisively establishes that an organisation should not be responsible for the actions of independent contractors.
The second case (WM Morrison Supermarkets plc v Various Claimants  UKSC 12) which places further limits on the doctrine of vicarious liability will be considered in more detail in a separate article later this week.
The index claims arose out of a series of alleged sexual assaults by a self-employed medical practitioner, Dr Gordon Bates, who carried out pre-employment medical examinations for Barclays Bank in the North East of England between 1968 and 1984. In the course of these examinations, Dr Bates is alleged to have sexually assaulted as many as 126 women. The medical examinations usually took place in a consulting room at Dr Bates’ home.
Dr Bates died in 2009 before the alleged offences were investigated by police. It has been reported that a subsequent investigation in 2013 established that if Dr Bates had still been alive, police considered that there would have been sufficient evidence to pursue a charging decision/prosecution.
With Dr Bates deceased and his estate distributed, Dr Bates’ victims were left to pursue claims against Barclays on the basis that the assaults were committed during the pre-employment medical examinations arranged by the bank.
First Instance and Court of Appeal
At first instance and in the Court of Appeal, the courts found that Barclays was vicariously liable for the assaults committed by Dr Bates. The decision focussed on the 2 stage test for vicarious liability established in Various Claimants v Catholic Child Welfare Society  UKSC 56 (AKA the Christian Brothers case) and the 5 policy reasons identified by Lord Phillips which dictate whether it is fair, just and reasonable to hold an organisation vicariously liable for the actions of someone else:
- The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability
- The tort will have been committed as a result of activity being taken by the employee on behalf of the employer
- The employee’s activity is likely to be part of the business activity of the employer
- The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee
- The employee will, to a greater or lesser degree, have been under the control of the employer
On the facts, both the High Court and the Court of Appeal found that it was fair to impose vicarious liability. The medical examinations were part of Barclays’ business activities (i.e. part of their hiring process) and they had created the risk of the assaults occurring by requiring applicants to undergo a medical with a pre-selected doctor. Dr Bates was under the control of Barclays as he was required to answer prescribed questions using a standard form.
The Supreme Court
The lower instance decisions have now been overturned by the Supreme Court who unanimously held that Barclays should not be responsible for assaults by Dr Bates as he was an independent contractor.
In an authoritative judgment, Lady Hale reiterated the applicability of the 2 stage Christian Brothers test:
- The relationship between the parties must be such that it is “proper for the law to make one pay for the fault of the other”
- Where, Stage 1 is satisfied, there must be a close connection between the relationship and the wrongdoing of the third party
The Claimants’ cases fell down at stage 1 of the test as an independent contractor will not usually be in a relationship akin to employment and it is not fair, just or reasonable to hold an organisation responsible for the actions of an independent contractor. This was clearly and comprehensively set out at paragraph 28 of the judgment:
- Clearly, although Dr Bates was a part-time employee of the health service, he was not at any time an employee of the Bank. Nor, viewed objectively, was he anything close to an employee. He did, of course, do work for the Bank. The Bank made the arrangements for the examinations and sent him the forms to fill in. It therefore chose the questions to which it wanted answers. But the same would be true of many other people who did work for the Bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books. Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the Bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance, although this may not have covered him from liability for deliberate wrongdoing. He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the Bank.
This case places a clear limit on the doctrine of vicarious liability which has expanded rapidly in recent years to cover a vast array of individuals who fall outside usual employee-employer relationships including prisoners who cause injury in the course of the work duties within a prison (Cox v Ministry of Justice  UKSC 10) and foster parents who abused the children placed in their care (Armes v Nottinghamshire County Council  UKSC 60) and to employees who commit wrongful acts by assaulting customers (Mohamud v WM Morrison Supermarkets plc  UKSC 11) or colleagues at a work party (Bellman v Northampton Recruitment Ltd  EWCA Civ 2214).
The decision in Barclays shows that in many cases it is not necessary to go beyond Stage 1 of the Christian Brothers test (i.e. is there a relationship of employment or akin to employment?). It will only be necessary to consider Lord Phillips’ policy reasons in borderline or novel cases where the relationship is not clear cut. These cases frequently involve sexual abuse claims arising out of assaults by volunteers or members of the clergy/religious organisations.
For now, the law seems settled. Organisations will not be vicariously liable for the actions of independent contractors where it is established that those contractors are carrying on business on their own account. Going forwards, expect the battleground of vicarious liability to shift towards the emerging gig economy (e.g. Uber, Deliveroo, DPD, etc.) where workers sit somewhere between the traditional roles of employee and independent contractor.
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Marlon Ellis, Solicitor
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