Although generally speaking vicarious liability arises most commonly in an employment relationship that is not always the case. In recent years the Supreme Court has held a Catholic Child Welfare Society vicariously liable for abuse by teachers at a school even though the society did not employ the teachers, the Ministry of Justice has been held liable for the actions of prisoners in a prison kitchen and a County Council has been held liable for child abuse by foster parents who the Council placed the children with.
In the case of Barclays Bank plc v Various Claimants the Supreme Court considered the case of Dr Bates who had carried out medical examinations for the Bank between 1968 and 1984. Dr Bates undertook work for a variety of different organisations. He was an employee of local hospitals as well as doing medical examinations for organisations such as insurance companies, a government board and the Bank. In the case of the Bank, pre-employment medical examinations would be arranged by the Bank with Dr Bates, the Bank would then tell job applicants when and where to go and Dr Bates would then examine them and complete a pro forma report. He was paid a fee for each report. During these examinations it was alleged by 126 claimants that Dr Bates had sexually assaulted them. By the time of the legal action Dr Bates had died and his estate had been distributed so he could not be sued.
The issue of whether the Bank would be vicariously liable for the alleged assaults was considered as a preliminary issue. The Bank relied upon the defence that they had no contract of employment that could give rise to vicarious liability and that Dr Bates was acting as an independent contractor. In the High Court the judge found the Bank would be vicariously liable for any proven assaults on the basis that the relationship was "akin to employment". The degree of control by the Bank over the examinations was considered critical to the finding. The Court of Appeal dismissed an appeal against that finding agreeing with the High Court that the medical examinations were an integral part of the Bank's business and interests.
When the matter came before the Supreme Court Lady Hale identified the two elements necessary for one person to be vicariously liable for the wrongdoings committed by another. The first is a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other, and that was the issue being considered by the Court. The second element is the connection between that relationship and the wrong doers actions - something that was considered in the case of WM Morrison Supermarkets plc v Various Claimants.
Having considered the arrangements in place between the Bank and Dr Bates the Supreme Court overturned the decisions of the lower courts, concluding that Dr Bates was a true independent contractor. He had his own portfolio of clients and work, he was not subject to a retainer and could refuse work and was expected to have his own insurance. He was one of a number of independent contractors who carried out work of all types for the Bank.
As with the judgment in the Morrison's case - which was handed down the day before - this case seems to be turning the tide on what had been a gradual expansion of the law of vicarious liability. While there may still be further developments on what range of relationships are "akin to employment", this case makes clear that a truly self-employed individual who is in business on their own account does not fit within that description. Employers (and their liability insurers) will be relieved to see this change.
