Vicarious Liability: Independent Contractor Defence No Longer Recognised

Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670

The Court of Appeal has held that the independent contractor defence is no longer recognised for vicarious liability claims.

The two stage test postulated in Cox and Mohamud applies when considering whether party is vicariously liable for the conduct of any third party, even an independent contractor.

Applying these tests, the Court of Appeal upheld the first instance finding that Barclays were vicariously liable for sexual assaults allegedly perpetrated by Dr Gordon Bates during pre-employment medical examinations.

Background

In this group litigation, 126 Claimants are seeking damages against Barclays Bank in respect of alleged sexual assaults perpetrated by Dr Gordon Bates during pre-employment medical examinations.

In the High Court, Mrs Justice Davies ordered the determination of the preliminary issue whether Barclays Bank was vicariously liable for the sexual assaults allegedly perpetrated by Dr Bates.

Mrs Justice Davies agreed the determination of the preliminary issue involves a two stage test as reiterated in the cases of Cox and Mohamud.

Is the relevant relationship one of employment or "akin to employment"? Was the tort sufficiently closely connected with that employment or quasi employment? On applying these tests, the Court found Barclays is liable for the conduct of Dr Bates.

Barclays appealed to the Court of Appeal on the basis that the application of stage 1 of the test was incorrect, and on the basis that Dr Bates' status as an independent contractor was a complete defence to the claim. The Respondents submitted that the initial decision should be upheld.

It should also be noted that since the first instance decision, the Supreme Court affirmed the two-stage approach laid down in Cox and Mohamud in Armes v Nottinghamshire County Council.

The Court of Appeal acknowledged this, albeit noting that "they address wildly different factual situations". Furthermore, the Court highlighted that when "adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established."

Court of Appeal

The original decision was upheld by the Court of Appeal.

The Court of Appeal rejected the submission that Dr Bates' status as an independent contractor was a defence to the claim. The Court of Appeal emphasised that the correct method is to apply the two -stage test to the particular facts of the case.

On doing so, the...