Vicarious Liability: No Longer ‘On The Move'? Implications For Historical Abuse Cases

The UK Supreme Court has handed down two judgments today which are of particular importance for cases involving historical abuse. Together they both explore the two-stage test for vicarious liability. In recent years the courts have consistently expanded the vicarious liability test and the law had been described as "on the move". That movement appears to have slowed, if not stopped entirely.

While the decisions are relevant to historical abuse cases, they also have a much wider application. Clyde & Co's wider analysis of the decisions will be published in the coming week.

Vicarious liability

Vicarious liability involves a two-stage test:

Is the relevant relationship one of employment or "akin to employment"?

Was the tort sufficiently closely connected with that employment or quasi employment?

Barclays Bank is concerned with the first stage of the test whereas WM Morrison Supermarkets is focussed on the second.

Stage 1 - Barclays Bank

Barclays Bank plc v Various Claimants [2020] UKSC 13 concerns alleged sexual assaults perpetrated by Dr Gordon Bates on 126 claimants. Dr Bates was contracted by Barclays to carry out pre-employment medical appointments. These appointments took place in Dr Bates' own home.

At first instance, and in the Court of Appeal, it was held that Barclays were vicariously liable for Dr Bates' actions. There was a relevant relationship of employment or quasi-employment between Barclays and Dr Bates. Though Dr Bates was an independent contractor, the relationship was one "akin to" employment. The medical examination and report was conducted for the benefit of the bank. The bank had arranged the appointments and the claimants had no other reasons to be examined by Dr Bates. The bank exercised a level of control over Dr Bates.

The Supreme Court unanimously disagreed. Dr Bates was a "classic independent contractor".

Notwithstanding the recent extension of the first stage of the test (for example in Cox), the historical distinction between an employee and an independent contractor has not been eroded. The question is whether the individual is carrying on a business on his own account or whether he was in a relationship akin to employment. In this case, the Supreme Court held that it was clear that Dr Bates was in a business of his own. He had a number of clients and one of those clients was Barclays Bank.

The court also acknowledged that traditional employment relationships have been eroded with the development of the gig...