Caroline Wood discusses Barclays Bank Plc v Various Claimants [2020] UKSC 13

Caroline Wood discusses Barclays Bank Plc v Various Claimants [2020] UKSC 13

Apply legal principles when imposing vicarious liability, not policy: The doctrine of vicarious liability does not apply to independent contractors.

Professor Glanville Williams’ rather scathing view in Vicarious Liability and the Master’s Indemnity, 1957 MLR 220, 231 was:

“Vicarious liability is the creation of many judges who have different ideas of its justification or social policy, or no idea at all…”

The doctrine of vicarious liability has moved on since Professor Glanville Williams’ article written in 1957, with the expansion of vicarious liability to include those in a relationship akin to employment in addition to those in a relationship of employer and employee.

The imposition of vicarious liability requires fulfilment of a two part test, namely: –

1. A relationship between the defendant and the wrongdoer, and

2. A connection between that relationship and the wrongdoer’s act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoer’s conduct.

The test applies to both employees and non – employees. An employee would fulfil part one without further consideration.

The Supreme Court had to determine in Barclays Bank v Various Claimants whether Barclays Bank was vicariously liable for sexual assaults allegedly committed by a Dr Bates when he performed medical examinations on the various claimants prior to confirmation of their employment with Barclays Bank. The Court was considering part one of the test.

At first instance and in the Court of Appeal the Claimants succeeded on the preliminary issue, namely, “Whether the defendant (Barclays Bank) is vicariously liable for any assaults that any claimant may prove to have been perpetrated by Dr Gordon Bates in the course of medical examinations carried out at the request of the defendant either before or during their employment with the defendant.”

Lady Hale, in a more forgiving observation than that of Professor Williams, noted that, “There appears to have been a tendency to elide the policy reasons for the doctrine of the employers’ liability for the acts of his employee, set out in paragraph 35 of Christian Brothers, with the principles which should guide the development of that liability into relationships which are not employment but which are sufficient akin to employment to make it fair and just to impose such a liability”.

The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases the five policy reasons identified by Lord Philips in Christian Brothers may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five policy reasons.

Those policy reasons are: –

1. The employer is more likely to have the means to compensate the victim that the employee;

2. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

3. The employee’s activity is likely to be part of the business activity of the employer;

4. The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee;

5. The employee will, to a greater or lesser degree, have been under the control of the employer.

Lord Reed, hearing a parallel case of WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, stated that “Those [five] factors were not concerned with the question whether the wrongdoing in question was so connected with the employment that vicarious liability ought to be imposed, but with the distinct question whether, in the case of wrongdoing committed by someone who was not an employee, the relationship between the wrongdoer and the defendant was sufficiently akin to employment as to be one to which the doctrine of vicarious liability should apply.”

The Supreme Court found that Dr Bates was never an employee and nor was he in a relationship akin to employment. Dr Bates did do work for Barclays and Barclays made arrangements for the examinations and sent him forms to fill in including the questions they wanted answering. Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from Barclays. 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 clients and patients. One of those clients was the Bank. Barclays Bank’s appeal was allowed and they are not vicariously liable for any wrongdoing of Dr Bates.

A person’s employment status can be categorised differently for different purposes.

Finally, the Supreme Court noted that an individual’s employment status may be categorised differently for different purposes. Until these recent developments, it was largely assumed that a person would be an employee for all purposes – employment law, tax, social security and vicarious liability. The Supreme Court held that it would be going too far down the road to tidiness to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of “worker”, developed for a quite different set of reasons.

Caroline Wood practises in Personal Injury, including disease, Clinical Negligence and Inquests arising in a healthcare setting. She successfully represented a defendant local council in respect of a claim arising from an assault by a teaching assistant on a lunchtime supervisor, both of whom were employees at the same school. If you would like to contact Caroline Wood about this or any other matter relating to her areas of practice please contact her clerks on clerkscivil@psqb.co.uk or call 0113 245 9763.