Today, 1st April 2020, the Supreme Court has handed down judgment in Barclays Bank v Various Claimants  UKSC 13. This is an important decision clarifying the scope of vicarious liability for independent contractors. Lizanne Gumbel QC and Robert Kellar QC appeared for the Respondents.
They were instructed by Slater and Gordon and Shaw & Co to represent 126 claimants seeking damages against Barclays Bank. The group litigation concerned the vicarious liability of a bank for sexual assaults in the 1970s and early 1980s. The alleged assaults were committed in the North East by a now deceased general practitioner. The assaults occurred during pre-employment health checks of prospective employees. Barclays Bank resisted liability on the basis that Dr. Bates was an “independent contractor”.
The High Court held that the the Bank was was vicariously liable for Dr. Bates’ assaults. That finding was upheld by the Court of Appeal.
However, the Bank’s appeal was allowed by the Supreme Court. It held that there was nothing in the Christian Brothers case, Cox v. Ministry of Justice or Armes v. Nottinghamshire CC to cast doubt on the classic distinction between employees (and those in relationships “akin to employment”) and independent contractors. Vicarious liability did not arise in respect of independent contractors.
The key question remained whether the tortfeasor was “carrying on business in his own account” or whether he was in a relationship “akin to employment”. Where it was clear that a tortfeasor was carrying on business in his own account it was not necessary to consider the various tests (the “five factors”) described in previous Supreme Court decisions. On the facts, it was clear that Dr. Bates was in business in his own account. Therefore the Bank was not vicariously liable for his assaults.
Judgment available here.