A Court of Appeal ruling has made clear that the law has evolved on vicarious liability and companyies’ association with independent contractors. Judges rejected an appeal from Barclays Bank on the preliminary issue of its liability for assaults allegedly committed by a doctor contracted to give medical checks to current and potential staff members.
The 126 claimants seek damages against the bank and argued the defendant was vicariously liable for sexual assaults committed by the now-deceased doctor on the basis he was in a role ‘akin to employment’. The bank required the examination to take place for current or future employment, and the claimants pleaded a direct duty of care on Barclays’ part.
The bank, which does not admit or deny allegations of sexual abuse, denies the doctor was ever an employee or in a situation akin to employment – instead he was self-employed and engaged by the bank as an independent contractor.
In the High Court, Mrs Justice Nicola Davies DBE had concluded that vicarious liability was established, and the Court of Appeal upheld that ruling. Sitting in the appeal in Barclays Bank Plc v Various Claimants, Lord Justice Irwin concluded the law of vicarious liability has been ‘on the move’ in recent times and authority was established, among others, in the Supreme Court ruling in Cox v Ministry of Justice, in which a prison authority was held vicariously liable for the negligence of a prisoner working in its kitchen.
Irwin LJ said the judge had applied recent authorities correctly and that the changing nature of work required a more flexible approach to vicarious liability.
‘Adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established,’ he said. ’Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control.’
Barrister Stuart Jamieson, of Parklane Plowden Chambers, said it was clear the courts were now applying the principles set in Cox. ‘Patently, a separate “independent contractor” test has been firmly rejected,’ he said. ‘Perhaps having been “on the move” the law of vicarious liability has now reached its destination.’