Vicarious Liability and the “Independent Contractor Defence” – The Appeal of Barclays Bank PLC v Various Claimants

Published 6 January 2020

On 28 November 2019, the Supreme Court heard the appeal in Barclays Bank PLC v Various Claimants. The Court is asked to determine whether the Defendant Bank is liable for sexual assaults committed by Dr Bates during medical examinations. The examinations were carried out at Dr Bates’ own home on prospective employees of the bank at the bank’s request. The outcome could have wide-reaching consequences and deserves close attention. Bryony Steele of our Winchester office attended the hearing in anticipation of the Judgment itself.

Judgment is reserved. Lady Hale, Lord Reed, Lord Kerr, Lord Hodge and Lord Lloyd-Jones will have to determine whether, as the Bank argued, Dr Bates was an independent contractor and as such the Bank cannot be vicariously liable or whether the Court looking behind that label, should decide that apparently innocent bodies such as the bank should be vicariously liable for unwarranted actions of others (in this case, Dr Bates).

The decision could have important ramifications for a wide range of our clients. In a medical context, where more and more aspects of care are being contracted out, both NHS and private healthcare providers could find themselves being sued for the acts of others, who would in the past have been considered to be independent contractors, a status which would automatically have placed the health providers beyond the reach of vicarious liability. Many independent clinics are already facing an increasing number of claims for treatment provided by the clinicians they engage under the label of independent contractors. The same could be said for many other sectors of the economy.

Remedies and rights need to be balanced. It will be interesting to see where the Supreme Court now determines the balance of these competing interests lies. However, one factor that weighed heavily with the Court of Appeal, when they found the Bank to be vicariously liable, was that the Bank provided a checklist for Dr Bates to complete and that this checklist arguably opened the door to unnecessary, intimate examinations. In the Court’s eyes, this constituted a degree of control that translated into a relationship akin to employment, justifying the finding of vicarious liability. These circumstances are arguably special; to use the well-worn phrase, the Court of Appeal emphasised that each case would turn on its facts.

We will be reporting on the Supreme Court’s judgment and providing analysis of how this might affect our clients across all sectors. The judgment is awaited with anticipation.