With the recent decision of Barclays Bank -v- Various Claimants [July 2018] it is worth looking at the concept of vicarious liaility again. This case doesn’t necessarily create new law but rather is the application of the principles set out in Catholic Child Welfare  as interpreted in Cox -v- Ministry of Justice  and clarifying that this law can extend to independent contractors. For me, the decision in Barclays has brought into focus how much the concept of vicarious liability has been on the move and I can think of at least one case I have run in the past 10 years which may have had a different outcome if it was run today.
For the lay readers it is worth setting out what vicarious liability means. It is where someone (this someone can be a company or organisation, not necessarily an individiual person) is responsible for the negligent actions of another. Within the field in which I work (clincial negligence and personal injury) this is usually the employer being responsible for the actions of its employees. For example, the NHS surgeon who negligently performs an operation causing injury to the patient. The claim is not made against the surgeon as an individual but rather the hospital Trust as the employer of the doctor.
In Catholic Child Welfare, the following criteria for establishing vicariously liability where there is not a straightforward employer/employee relationship were outlined by Lord Phillips:
- The employer is more likely to have the means to compensate the claimant and can be expected to have insured against that liability.
- The wrongdoing will have been committed as a result of activity being undertaken on behalf of the employer
- The activity is likely to be part of the business activity of the employer
- The employer will have created the risk of the wrongful act being done
- The wrongdoer is, to a greater or lesser degree, under the control of the employer.
The case of Cox clarified that the factors listed above do not have equal weight. For example, the first factor should not be a deal maker or breaker. Having or not having insurance does not impose or absolve someone of responsibility. However, it might be a consideration when all the circumstances are looked at. The fifth factor no longer has the significance it once did but I think it is still safe to say that if the employer has no control at all over the wrongdoer then the likely finding would be the relationship was insufficient to establish vicarious liability.
Factors 2 to 4 are inter-related and the case of Barclays demonstrates how. In this case the claimants were prospective employees of the bank. As part of the application process they were required to undergo a medical examination by a certain GP. During the examination, the claimants were assaulted. The bank denied liability for the actions of the GP on the basis that he was self-employed and his services were provided to the bank as an independent contractor. The trial judge found the bank to be liable. The Court of Appeal agreed. Looking at factors 2-4, the examination was being undertaken for the benefit of the bank, it was part of the business activity of the bank and it was the requirement of the bank to have its prospective employees examined by the GP which “put the claimants in a position of risk”.
Historically, a claim against a bank who engaged the services of a negligent private doctor (acting as an independent contractor) would have failed unless there was evidence to show the bank had been negligent in its engagement of that doctor (or if it involved a non-delegable duty – this discussion is outside the scope of this blog). For example, the bank would have been negligent if the doctor was already the subject of an enquiry for assault of which the bank would have been aware if it had made the proper enquiries. Barclays makes it clear there is no need to prove negligence on behalf of the defendant in how the independent contractor has been engaged. They are responsible for the doctor’s actions even absent any negligence on the bank’s behalf.
This case is part of a wider momentum to attempt to ensure the law keeps pace with the changed and changing nature of employment and quasi-employment relations, the ‘gig ecnonomy’. See for example the lititgation surrounding the employment status of Uber drivers. In the context of my work, I will be paying close attention to claims arising from the negligence of private clinicans who provided services as an independent contractor. The potential ability to sue the hopsital/clinic/organisation could be invaluable when there are problems with suing the individual. For example, when the individal doctor cannot be traced or, for one reason or another, they do not have their own adequate insurance to cover paying damages and costs. These situations can and do happen (although infrequently) and it is an extra level of protection for claimants who should not be at a disadvantage just due to the status of the person who has provided negligent treatment.