The judgment brings clarity to and reins back on how far the courts ought to take the law of vicarious liability away from the original position that the employer of an independent contractor cannot be held liable for the latter’s actions in the course of his work.

Introduction 

Two elements have to be shown before one can be made vicariously liable for another’s torts. First is the relationship between the two persons to make it proper for the law to impose liability: the relationship between employer and employee is one such relationship. Second is the connection between that relationship and the tortfeasor’s wrongdoing. This case is concerned with the first element: we will explore the second element in Part 2 which will discuss WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12. 

Issue 

The issue is whether Barclays Bank can be held vicariously liable for the sexual assaults allegedly committed by the late Dr Gordon Bates on some 126 claimants in this group action. Factual findings made by the High Court clearly pointed towards the fact that Dr Bates was in business on his own account as a medical practitioner with a portfolio of patients and clients, one of which was Barclays Bank. In other words, his relationship with Barclays Bank was that of an independent contractor and client as opposed to one that resembles an employment relationship, or for that matter a limb (b) worker under s.230(3) ERA 1996. 

Judgment

Lady Hale stated that the law never truly moved away from the proposition that the employer of an independent contractor cannot be held liable for the latter’s actions in the course of his work. Although the High Court and the Court of Appeal in this case supported a multi-factorial approach in which a range of incidents are considered in deciding whether it is fair, just and reasonable to impose vicarious liability upon the employer for the torts of another person who was not his employee, the Supreme Court had never truly espoused this approach. 

Lady Hale reviewed three recent Supreme Court cases all of which imposed vicarious liability: Christian Brothers (Institute of Christian Brothers and teacher brothers); Cox v Ministry of Justice (Prison service and prisoner) and Armes v Nottinghamshire County Council (local authority and foster parents). She held that none of these recent cases cast any doubt on the classic distinction between work done for an employer as part of the business of that employer and work done by an independent contractor as part of the business of that contractor. That there has been no erosion of the distinction. 

Thus framing the question: whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. Applying the question to this case, she held that the Dr Bates was in business on his own account and therefore the Bank was not vicariously liable for any wrongdoing in the course of the medical examinations he carried out for the Bank. 

Comment 

The judgement was focused and clear as to what it was trying to achieve which was to investigate whether there indeed has been an erosion of the distinction between the two relationships so as to expand the law of vicarious liability. The answer was a resounding no. This will come as a welcome relief for employers and brings clarity (if ever it was needed) to who can be held vicariously liable for another’s wrongful actions.