April 1, 2020

Supreme Court: Barclays successfully appeal vicarious liability for assaults by independent doctor

The Supreme Court has overturned the Court of Appeal decision in Barclays Bank plc v Various Claimants.  The Supreme Court found that Barclays was not liable for sexual assaults committed by a medical practitioner in the course of medical examinations carried out at Barclays' request. The examinations were carried out either as a precursor to or during the claimants' employment with Barclays.

On the facts of the case, the Supreme Court held the doctor was not at any time an employee of Barclays, or close to being so.  The doctor was a true indepedent contractor; he carried his own portfolio of clients and work as a medical practitioner. The doctor was not subject to a retainer, and was free to refuse work from Barclays; it was expected that he would have his own medical liability insurance.  The doctor's work was considered part of a network of many others who did work for Barclays but were clearly independent contractors, "ranging from the company hired to its windows, to the auditors hired to audit its books" [28]. 

The five factors identified in the Christian Brothers decision may help to identify a relationship analogous to employment where is not clear whether or not the tortfeasor is carrying on their own independent business. However, "where it is clear that the tortfeasor was carrying out his own independent business it is not necessary to consider the five incidents" [27].

This decision reiterates the existence of the 'independent contractor' defence to claims of vicarious liability, carrying not only important implications for the law of vicarious liability but also the scope of abuse claims for which parties can be liable, along with the associated exposure for liability insurers. 

We will be writing further detailed updates on these issues in the near future.

Background

Litigation was brought by 126 claimants against Barclays Bank for sexual assaults committed by a self-employed doctor during medical examinations carried out as part of the claimants' employment with Barclays. Barclays relied on the defence that they had no contract of employment with the doctor that could give rise to vicarious liability, and he was acting as an independent contractor.

Vicarious liability was established at first instance in the High Court. Mrs Justice Davies found that the circumstances of the case satisfied the two stage test:

  1. Was the relevant relationship between the doctor and Barclays one of employment or "akin to employment"? (the Cox test)
  2. Was the tort (sufficiently closely connected with that employment or quasi employment? (the Mohamud test)

The High Court considered the five criteria set out in Christian Brothers case when addressing the first stage of the test, specifically whether the relationship between the doctor and Barclays was one of employment or “akin to employment”.

Both limbs of the test were satisfied and Barclays was found vicariously liable.

Barclays appealed against the conclusion regarding the first stage of the test in the Court of Appeal.  The appeal was dismissed. The Court of Appeal agreed with Mrs Justice Davies' conclusions to each of the five characteristics. The degree of control held by Barclays over the examinations was considered to be “perhaps the most critical factor”; a set formula had been prescribed for the doctor to follow during the examinations.

The Court of Appeal agreed that examining the health of prospective employees as a pre-employment check was an integral part of Barclays’ business and interests.

Initial analysis

The Supreme Court rulings in both WM Morrisons and Barclays Bank will come as a relief to insurers and employers, who have seen their potential liability expand with previous decisions on the issue of vicarious liability. The Supreme Court have provided welcome clarification on the application of both stages of the two-stage vicarious liability test, restraining the expansion of those parties which are considered to be employees or 'quasi-employees', and the range of wrongful actions of employees for which the employers can be held to be vicariously liable.

Our case alert on the Supreme Court decision on vicarious liability in WM Morrisons Supermarkets plc v Various Claimants can be found via the link.