Various Claimants v Barclays Bank

Facts

Dr Gordon Bates was a general practitioner who carried out medical examinations of prospective and existing employees of Barclays Bank at his home from the late 1960s until 2000, as part of the bank's recruitment and employment procedures. He was paid a fee for each report, completed a form supplied by the bank, and also worked for others, including as a GP and for other clients. The claimants, who numbered more than a hundred, alleged that he sexually assaulted them during the examinations. Dr Bates had died before the claims were brought.

History

Nicola Davies J held that Barclays was vicariously liable for Dr Bates's assaults. The Court of Appeal dismissed Barclays' appeal, and Barclays appealed to the Supreme Court.

Issue

Whether Barclays was vicariously liable for torts committed by Dr Bates, an independent contractor, in the course of examinations that he carried out for the bank.

Held

Appeal allowed. Dr Bates was neither an employee nor a person in a relationship akin to employment, because he was carrying on his own medical practice and the examinations were not part of the business of the bank, so the bank was not vicariously liable.

Ratio

• Vicarious liability arises for the torts of an employee and of a person in a relationship akin to employment, which depends on whether the tortfeasor is carrying on business on his own account or is an integral part of the defendant's business; a defendant is not vicariously liable for the torts of an independent contractor who carries on his own business and whose work is not integrated into the defendant's.
• The features that made a relationship akin to employment in the earlier cases, including the defendant's creation of risk and benefit from the work, are not sufficient on their own and are relevant only where the tortfeasor is not in business on his own account.

The judgments

Key reasoning

• The decision in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 extended vicarious liability to relationships akin to employment, but did not do away with the traditional distinction between a person employed in the business of the defendant and an independent contractor in business on his own account, a distinction reaffirmed in Cox v Ministry of Justice [2016] UKSC 10 and Armes v Nottinghamshire County Council [2017] UKSC 60.
• Dr Bates was paid a fee per report, carried out the examinations at his own premises, used his own equipment, took no instructions on how to perform them, and was free to work for others, so that he was carrying on his own medical practice with Barclays as one client.
• The fact that the bank required the examinations as part of its recruitment procedures and benefited from them did not make them part of its business, and the lower courts had given too much weight to the extent to which the bank relied on him.

Where it fits in the module

On the FHS Tort list under employment and relationships akin to employment. The case is the leading statement of the limits of the doctrine, and is useful on the debate about the rationale for vicarious liability, whether enterprise liability, the benefit and risk, or control, and about the uncertain boundary between employees and independent contractors. It is usually read with Various Claimants v Catholic Child Welfare Society, Cox, Armes, and the close connection test in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11. Candidates should consider whether the formal business on own account test fits the policy reasons for imposing liability.

Criticisms

• The test of carrying on business on one's own account is formal and may turn on how the contract is labelled, risking arbitrary results where the defendant in reality compelled applicants to attend and controlled the process, and the claimants had no choice of examiner.
• Separating the question whether the relationship is akin to employment from the rationale based on risk and benefit leaves victims of abuse by professionals engaged by an organisation without a remedy against the party with the resources, in tension with the policy behind the doctrine.
• The concept of being in business on one's own account is itself vague, since independent professionals integrated into an organisation, such as locums and consultants, could fall on either side of the line.