Barclays Bank plc v Various Claimants [2020] UKSC 13: A photo of the UK Supreme Court. (Photo credits: UK Supreme Court)

INTRODUCTION

The law has always recognized that there are certain relationships in which it is proper for one to be made to pay for the fault of the other. Historically, and putting aside agency and partnerships, vicarious liability is imposed on an employer for the wrongful actions of his employee provided that they were committed in the course of the latter’s employment. More pertinently, “it is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work” (per Lord Bridge of Harwich in D & F Estates Ltd v Church Comrs [1989] AC 177, 208).

In recent years, owing to the trilogy of UKSC decisions in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (also known as the Christian Brothers case) [2013] 2 AC 1,

Cox v Ministry of Justice [2016] UKSC 10 (“Cox”); [2016] AC 660, and Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 355, litigants have attempted to argue that what was once considered trite law may no longer be the case. They contend that those 3 cases allow for a more-nuanced factorial approach where a range of factors is considered in deciding whether it is “fair, just and reasonable” to impose vicarious liability upon one person for the torts of another person who is not his employee. The latest attempt was made in Barclays Bank plc v Various Claimants [2020] UKSC 13.

CASE SUMMARY

Dr Gordon Bates was a practicing doctor. In the 1960s, those applying for employment with Barclays Bank were required to undergo and pass a medical examination before being offered a job (provided they met the Bank’s other criteria). For this purpose, the Bank arranged for the candidates to be examined by Dr Bates who had to fill in a pro forma report for each candidate he examined. Dr Bates was paid a fee for each report but he was not on a retainer with the Bank.

It was alleged that between 1968 and 1984, Dr Bates sexually assaulted a number of the female candidates referred to him by the Bank, including the claimants. As Dr Bates died in 2009, the claimants sued the Bank claiming that it was vicariously liable for the sexual assaults (allegedly) perpetrated by Dr Bates.

The High Court ordered the trial of a preliminary issue as to whether the Bank is vicariously liable for the alleged sexual assaults (if proved). The High Court answered the issue in the affirmative and the Court of Appeal agreed with the High Court. The Bank appealed to the UKSC.

The Bank, whilst agreeing that recent decisions had expanded the categories of relationship which give rise to vicarious liability beyond the strict employer-employee relationship, contended that they had not expanded to the point of destroying the trite proposition that an employer is not liable for the acts of an independent contractor. The claimants on the other hand contended that the 3 UKSC decisions had changed that position.

THE UKSC’S DECISION

Lady Hale, who delivered the judgment of the court, traced the development of the law in this area and then examined the 3 cases concluding that (at [24]):

There is nothing, therefore, in the trilogy of Supreme Court cases discussed above to suggest that the classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor on the other hand.

Her Ladyship was fortified in her conclusion by 2 cases decided post Christian Brothers and Cox where the same conclusion was reached. Notably, one of the cases was the decision of our Court of Appeal in Ng Huat Seng v Mohammad [2017] SGCA 58 (“Ng Huat Seng”). Her Ladyship, in particular was attracted to the following passage (at [63] and [64]):

… while we accept that the Christian Brothers case and Cox recognise that the doctrine of vicarious liability can be applied outside the strict confines of an employment relationship, it becomes evident, when one examines these judgments more closely, that their essential contribution was to fine-tune the existing framework underlying the doctrine so as to accommodate the more diverse range of relationships which might be encountered in today’s context. These relationships, when whittled down to their essence, possess the same fundamental qualities as those which inhere in employer-employee relationships, and thus make it appropriate for vicarious liability to be imposed.

Indeed, we do not see how vicarious liability, the normative foundation of which rests on the theory that it is fair, just and reasonable to hold a defendant liable for the acts of the tortfeasor on the ground that the tortfeasor is in fact engaged in the defendant’s enterprise, could possibly be extended to tortious acts committed by an independent contractor, who, by definition, is engaged in his own enterprise. There is simply nothing fair, just and reasonable about imposing secondary liability on a defendant in such a situation.

With the above in mind, Lady Hale concluded that the relationship between the Bank and Dr Bates was not one that could give rise to vicarious liability on the part of the former reasoning thus (at [28]):

Clearly, although Dr Bates was a part-time employee of the health service, he was not at any time an employee of the Bank. Nor, viewed objectively, was he anything close to an employee. He did, of course, do work for the Bank. The Bank made the arrangements for the examinations and sent him the forms to fill in. It therefore chose the questions to which it wanted answers. But the same would be true of many other people who did work for the Bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books. Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the Bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance, although this may not have covered him from liability for deliberate wrongdoing. He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the Bank.

The UKSC thus allowed the Bank’s appeal.

CONCLUDING REMARKS

Of significance is the UKSC’s citing of Ng Huat Seng in its judgment. This, perhaps, represents an alignment of the Singapore and United Kingdom’s position on vicarious liability with regard to independent contractors. Put simply, the distinction between an employer-employee relationship (and those that are akin to an employer-employee relationship) and an independent contractor relationship continues to remain. What is important however is that lawyers should examine the fact to inquire whether the fundamental qualities which inure in employer-employee relationships are present such that vicarious liability should be imposed.

To read the full judgment, click here.