​Barclays Bank v Various Claimants [2020] UKSC 13

06 April 2020

John_mccloskey_(96x96)

Facts

Dr Gordon Bates who died in 2009, was a doctor who performed medical examinations for Barclays between 1968 and 1984. He was not employed by Barclays but was engaged by them as a “classic independent contractor.” The High Court found as a matter of fact that he was in business on his own account and had a portfolio of clients and patients, one of whom was Barclays Bank. Dr Bates was not paid a retainer by the bank but was paid a fee for each report he prepared. He had the option to refuse to carry out any examination requested by the bank and had arranged his own medical liability insurance (although it is unlikely this would have covered him for deliberate wrongdoing).

One hundred and twenty six claimants alleged that Dr Bates had sexually assaulted them in the course of performing his medical examinations. The issue to be determined by the Court was whether Barclays Bank could be held liable for the actions of an independent contractor. The Court of Appeal held that Barclays Bank was vicariously liable for the actions of Dr Bates thus the claimants were entitled to compensation.

Judgment

In reaching a decision Lady Hale reviewed three recent Supreme Court decisions which had dealt with the issue of vicarious liability. The Catholic Child Welfare Society & Others v Various Claimants & Others [2012] UKSC 56 (the “Christian Brothers” case), Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660 and Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 855.

In the Christian Brothers case, the Court held that the Institute of Christian Brothers was liable for the actions of the Brothers despite the fact that the Brothers were not employees of the Institute. In this case Lord Phillips set out 5 considerations to take into account when deciding whether an employer should be vicariously liable for the acts of their employee:-

(i) 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;

(ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

(iii) the employee’s activity is likely to be part of the business activity of the employer;

(iv) the employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee;

(v) the employee will, to a greater or lesser degree, have been under the control of the employer.

Lord Reed contemplated these factors in the case of Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660. He considered the main criteria to be (ii), (iii) and (iv) above. He identified (i) and (v) as lesser considerations. This particular case dealt with the issue of whether the Prison Service was responsible for the actions of a prisoner working on Prison Service pay under the Plaintiff’s direction (the Plaintiff was a prison manager). In this case the Court held that the Prison Service were vicariously liable for the actions of the prisoner.

In Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 855 the Court had to decide whether the County Council could be vicariously liable for physical and sexual abuse allegedly perpetrated by two foster parents. The County Council had placed the Plaintiff in the case of these foster parents. Again, the Court held that the Council was vicariously liable.

The issue considered in the Barclays Bank case was whether the 3 judgements above had eroded the distinction between work done for an employer as part of the business of that employer and work done by an independent contractor as part of the business of that contractor.

Lady Hale (giving the judgment of the Court) held that there had been no erosion of this distinction. The five considerations set out by Lord Phillips in the Christian Brothers case are taken into account when there is a debate as to whether the tortfeasor (in this case Dr Bates) was an employee or independent contractor. In this case there was no debate. Dr Bates was an independent contractor. As such, Barclays Bank was not vicariously liable for his actions and the claimants could not recover compensation from them.

Comment

This decision serves to clarify the issue of whether an employer can be liable for the acts of an independent contractor. If the Court holds that the tortfeasor is an independent contractor (as opposed to an employee), the employer will not be held liable for their actions or negligence.

This judgment also affirms the factors that are taken into account when deciding whether a tortfeasor is an employee or independent contractor following the Christian Brothers case.

If you would like any further information or advice please do not hesitate to contact John McCloskey or another member of the Defence Insurance Litigation team at Carson McDowell.

Back