244: Employer’s liability for the acts of an independent doctor

In Barclays Bank plc v Various Claimants, the Supreme Court has ruled that Barclays was not vicariously liable for the acts of a doctor who was alleged to have committed sexual assaults while carrying out medical assessments on its behalf.

An employer will be vicariously liable for the wrongful acts of its employees if those acts are carried out in the course of employment. Recent case law has extended the scope of vicarious liability to include individuals who are not employees but have a relationship with the employer which is so similar to employment that it is fair and reasonable to impose liability for their wrongdoing. The courts will look at factors such as the degree of control, how the individual is paid, and the extent to which the individual is part of the organisation.

Dr Bates was a self-employed doctor who was engaged by Barclays Bank to carry out medical assessments of its prospective employees. After his death, 126 claimants brought a group action alleging that Dr Bates had sexually assaulted them during medical examinations he had carried out between 1968 and 1984. Barclays argued that it could not be liable for Dr Bates’ actions because he was an independent contractor. However, the High Court and the Court of Appeal found that Dr Bates was sufficiently under the control of Barclays that their relationship was similar to one of employment and it was fair and reasonable to impose vicarious liability. For example, Barclays arranged the medical assessments, advised prospective employees when to attend, and provided Dr Bates with a standard report form to complete. The alleged assaults were also sufficiently closely connected to his work for the Bank.

The Supreme Court has now unanimously allowed an appeal by Barclays, ruling that the Bank could not be vicariously liable for Dr Bates’ actions because he was an independent contractor. He was clearly in business on his own account, with his own portfolio of patients and clients, working from a consulting room at his home. He could refuse work, was paid a fee for each medical report he completed, with no retainer, and had his own medical liability insurance. The Supreme Court concluded that this was not a relationship which was sufficiently similar to employment to make it fair, just and reasonable to impose vicarious liability.

The Supreme Court reconsidered the expansion of the law on vicarious liability and confirmed that employers cannot be vicariously liable for the wrongful actions of individuals who are independent contractors. In this case, the Supreme Court considered that the facts clearly pointed to self-employment and that Dr Bates was nothing like an employee. However, in other cases where this is more doubtful, the Supreme Court confirmed that broader policy considerations may apply, such as whether the employer is more likely to have the means to compensate the victim for the wrongful acts and can be expected to have insured against that liability. Since employers can still be liable for the actions of contractors if their relationship is sufficiently similar to employment, this case is a reminder to review contractual and insurance arrangements in order to address the risk of vicarious liability claims.