Barclays Bank plc v Various Claimants [2020] UKSC 13 (01 April 2020)

Claimants alleged sexual assault by Dr Bates during medical examinations arranged by Barclays Bank. The Supreme Court held the Bank was not vicariously liable because Dr Bates was an independent contractor running his own medical practice, not an employee or person in a relationship akin to employment with the Bank.

Facts

Between 1968 and approximately 1984, Dr Gordon Bates, a medical practitioner in Newcastle-upon-Tyne, conducted medical examinations on prospective employees of Barclays Bank. The Bank arranged appointments, provided pro forma reports to be completed, and paid Dr Bates a fee for each examination. Dr Bates had a portfolio practice including work for hospitals, insurance companies, and other organisations. Some 126 claimants alleged that Dr Bates sexually assaulted them during these examinations, many of whom were teenagers at the time. Dr Bates died in 2009 and his estate had been distributed, leaving the Bank as the only potential defendant.

Background to the Relationship

Dr Bates was not paid a retainer by the Bank and was free to refuse examinations. He operated from a consulting room in his own home and carried his own medical liability insurance. The examinations were conducted to assess whether applicants were medically fit for employment and could be recommended for life insurance under the Bank’s pension scheme.

Issues

The central issue was whether Barclays Bank could be held vicariously liable for any sexual assaults committed by Dr Bates during medical examinations carried out at the Bank’s request. This required determination of whether the relationship between Dr Bates and the Bank was sufficiently akin to employment to justify imposing vicarious liability, or whether he was truly an independent contractor.

Judgment

The Supreme Court unanimously allowed the appeal and held that Barclays Bank was not vicariously liable for Dr Bates’ alleged wrongdoing.

The Law of Vicarious Liability

Lady Hale, delivering the judgment with which all other Justices agreed, examined the development of vicarious liability law through recent Supreme Court decisions including Christian Brothers, Cox v Ministry of Justice, and Armes v Nottinghamshire County Council. She emphasised that two elements must be shown for vicarious liability: first, a relationship between the defendant and tortfeasor making it proper for the law to impose liability; second, a sufficient connection between that relationship and the wrongdoing.

Lady Hale clarified that recent decisions expanding vicarious liability beyond traditional employment relationships had not destroyed the fundamental distinction between employees (and those in relationships akin to employment) and independent contractors. She noted that the test remains whether the tortfeasor is carrying on business on his own account or is in a relationship akin to employment with the defendant.

Application to the Facts

Lady Hale concluded that Dr Bates was clearly not an employee of the Bank, nor was he anything close to an employee when viewed objectively. Key factors included: he was not paid a retainer obliging him to accept referrals; he was paid a fee for each report; he was free to refuse examinations; he carried his own medical liability insurance; and he was in business on his own account as a medical practitioner with a portfolio of patients and clients. The Bank was simply one of those clients.

Implications

This decision confirms that the classic distinction between employment relationships (including those sufficiently akin to employment) and independent contractors remains intact despite recent expansions of vicarious liability doctrine. The case provides important guidance that where it is clear a tortfeasor is carrying on his own independent business, it is not necessary to consider the five policy factors identified in previous cases. The judgment also acknowledges but declines to align the common law concept of vicarious liability with the statutory concept of ‘worker’ under employment legislation, recognising these were developed for different purposes.

Verdict: Appeal allowed. Barclays Bank is not vicariously liable for any wrongdoing of Dr Bates in the course of the medical examinations he carried out for the Bank.

Source: Barclays Bank plc v Various Claimants [2020] UKSC 13 (01 April 2020)