Various Claimants v Barclays Bank plc

The Supreme Court considered whether Barclays Bank was vicariously liable for sexual assaults allegedly committed by Dr Gordon Bates during medical examinations arranged by the Bank. The court restated the two-stage approach: (i) whether the relationship between the defendant and the tortfeasor is one which makes it fair, just and reasonable to impose vicarious liability (often described as a relationship "akin to employment"); and (ii) whether the torts were sufficiently connected with that relationship.

The court reviewed leading authorities (including Various Claimants v Catholic Child Welfare Society, Cox v Ministry of Justice and Armes v Nottinghamshire County Council) and emphasised that those decisions did not abolish the fundamental distinction between employees or relationships closely analogous to employment, and true independent contractors. The question depends on the detailed features of the relationship rather than any single formula; the five policy 'incidents' identified in Christian Brothers may be helpful but are not determinative.

Applying those principles, the court held that Dr Bates was an independent medical practitioner in business on his own account who provided occasional services to the Bank, was paid per report and free to refuse work. His relationship with the Bank was not sufficiently akin to employment and the Bank was not vicariously liable for his wrongdoing. Appeal allowed.

Background and parties: This was a group action in which some 126 claimants alleged that Dr Gordon Bates sexually assaulted them during medical examinations he carried out between about 1968 and 1984. The examinations had been arranged by Barclays Bank for applicants as part of recruitment and insurance requirements. Dr Bates had a portfolio medical practice and carried out the examinations in his home consulting room. The respondents were granted anonymity by the court.

Procedural history: A group litigation order was made in 2016. The managing judge, Nicola Davies J, heard a preliminary issue and in July 2017 held Barclays vicariously liable ([2017] EWHC 1929 (QB)). The Court of Appeal dismissed Barclays' appeal ([2018] EWCA Civ 1670). Barclays appealed to the Supreme Court.

Relief sought: The preliminary issue was whether Barclays Bank was vicariously liable for any assaults proved to have been committed by Dr Bates in the course of medical examinations carried out at the Bank's request.

Issues framed by the Supreme Court: (i) Whether the relationship between Barclays and Dr Bates was sufficiently akin to employment to ground vicarious liability; (ii) the proper approach to the authorities that have extended vicarious liability beyond strict employment, including the role of the five "policy incidents" identified in Various Claimants v Catholic Child Welfare Society; and (iii) the application of those principles to the factual matrix of per-report medical examinations arranged by the Bank.

Reasoning and subsidiary findings:

• The court summarised recent authorities (Lister, Christian Brothers, Cox, Armes and E's case) and explained that they refine rather than overthrow the classic distinction between employees/akin-to-employees and independent contractors.
• Lord Phillips's five policy incidents may assist in doubtful cases but the central inquiry remains a detailed analysis of the relationship: whether the tortfeasor was carrying on an independent business or was integrated into the defendant's activities.
• Applying the principles, the court observed as material facts that Dr Bates was paid a fee per report, had no retainer from the Bank, was free to refuse referrals, had a portfolio practice, and likely carried his own insurance; these features pointed to him carrying on a business on his own account.
• The court rejected any invitation to align the common law concept of vicarious liability with the statutory concept of "worker" under the Employment Rights Act 1996; the doctrines serve different purposes.

Conclusion: The Supreme Court allowed Barclays' appeal and held that the Bank is not vicariously liable for any wrongdoing of Dr Bates in the course of the medical examinations he carried out for the Bank.

Appeal allowed. The court held that Barclays Bank was not vicariously liable because Dr Bates was an independent medical practitioner carrying on his own business and his relationship with the Bank was not sufficiently akin to employment to justify imposing vicarious liability. The court emphasised that recent authorities refine but do not obliterate the distinction between employees/relationships akin to employment and independent contractors; the detailed features of the relationship are decisive.

Trial: Nicola Davies J held Barclays vicariously liable, [2017] EWHC 1929 (QB). Court of Appeal: Barclays' appeal dismissed, [2018] EWCA Civ 1670. Supreme Court: appeal allowed, [2020] UKSC 13.