Can someone be vicariously liable for the actions of an independent contractor?
Not necessarily, says the Supreme Court in Barclays Bank plc v Various Claimants.
Barclays required certain new employees to receive a medical assessment prior to their employment starting at least between 1968 and 1984. In that period 126 mainly teenaged female claimants alleged that Dr Bates, a practitioner not employed by Barclays, had sexually assaulted them. He was paid a fee for each report he conducted and was not obliged to accept any particular level of work from Barclays.
The Claimants all succeeded on the issue of vicarious liability at trial and in the Court of Appeal. Lady Hale, giving the unanimous judgment of the Supreme Court, reversed those decisions and held that Barclays was not vicariously liable. The main part of her reasoning was:
"The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant...[T]he key, as it was in Christian Brothers, Cox and Armes, will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider [anything else]."
The case is also interesting due to the obiter comments made by Lady Hale regarding vicarious liability workers. In her view, someone who is a worker may still not be in a relationship "akin to employment". Lady Hale's comments were that while might be helpful to line up the law in an employment context with that of vicarious liability for the purposes of the genuinely self-employed, it would be wrong to do so for workers.
Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.