Barclays Bank Plc v Various Claimants

Vicarious liability is not determined by the label independent contractor. The court must ask whether the relationship is one of employment or akin to employment, and whether the tort is sufficiently closely connected with that relationship. The relationship inquiry includes means to compensate, activity undertaken on the defendant’s behalf, integration with its business, creation of risk and control. Means are assessed at the time of litigation and carry little weight alone. The risk criterion does not require negligence; it is sufficient that the defendant’s arrangements place the claimant in a position of risk. Independent contractors may attract liability where the two-stage test is satisfied.

One hundred and twenty-six claimants brought group litigation alleging sexual assaults by Dr Gordon Bates during medical examinations arranged by Barclays Bank before or during employment. The examinations were conducted at Dr Bates’s home, under arrangements made or required by the Bank.

On a preliminary issue, the High Court held that the Bank was vicariously liable, notwithstanding that Dr Bates was said to be self-employed and an independent contractor: [2017] EWHC 1929 (QB). The Bank appealed, arguing that the independent-contractor analysis excluded liability and that the modern vicarious-liability criteria were not satisfied. The central issues were whether Dr Bates’s relationship with the Bank was akin to employment and whether the alleged assaults were sufficiently closely connected with that relationship.

Appeal dismissed. Lord Justice Irwin delivered the leading judgment. The President of the Queen’s Bench Division and Lord Justice McCombe agreed.

1. The applicable approach is the two-stage test developed in Cox v Ministry of Justice [2016] UKSC 10 and Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11, and affirmed in Armes v Nottinghamshire County Council [2017] UKSC 60. The court must ask whether the relationship is one of employment or akin to employment, and whether the tort is sufficiently closely connected with that relationship. Independent-contractor status is not itself the determinative test. Liability may therefore arise in a case involving an independent contractor.
2. At stage one, the relevant factors are the defendant’s means and insurance, whether the activity was undertaken on its behalf, whether it formed part of the defendant’s business, whether the defendant created the risk, and the degree of control. The means factor is assessed at the time of litigation and has limited weight alone. The risk criterion does not require negligence. It is satisfied where the defendant’s acts place the claimant in a position of risk.
3. Control must be assessed in relation to the identified activity. It concerns the defendant’s ability to direct what the tortfeasor does, rather than necessarily how professional expertise is exercised. The Bank prescribed the examination requirements and directed the time, place and examiner. The claimants had no choice of doctor, and many were required to undergo intimate examinations. Dr Bates’s professional autonomy, home practice and other work did not prevent sufficient control.
4. At stage two, the close-connection requirement was plainly satisfied. The examinations were the whole purpose of the relationship and would not have occurred without it. The arrangements placed the claimants in physical proximity to Dr Bates and facilitated the alleged abuse.
5. Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537 concerned a non-delegable duty and provided no basis for excluding vicarious liability for independent contractors. Kafagi [2018] EWCA Civ 1157 was factually distinguishable. The just-and-fair assessment supported liability, while limitation remained a separate issue.

• Court of Appeal (Civil Division): Appeal dismissed. [2018] EWCA Civ 1670.
• High Court of Justice, Queen’s Bench Division: On the preliminary issue, held that Barclays Bank was vicariously liable for assaults proved to have been committed during the medical examinations. [2017] EWHC 1929 (QB).