http://www.bailii.org/ew/cases/EWCA/Civ/2018/1670.html

The claimants brought a group litigation claim against the defendant bank. The claimants were applicants for employment with the bank and the bank had required them to have a medical examination undertaken by a certain GP. The claimants allege that they were assaulted by the GP and that the bank is vicariously liable for the GP's actions. The bank denied liability on the basis that the GP was self-employed and engaged by the bank as an independent contractor. At first instance, the bank was found to be liable and the Court of Appeal has now dismissed the appeal from that decision.

The Court of Appeal held that, adopting the approach set out by the Supreme Court in Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets (see Weekly Update 9/16), "there will indeed be cases of independent contractors where vicarious liability will be established. Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control".

The Court of Appeal rejected the argument that a "bright line" test of no vicarious liability for independent contractors should be followed because that "would make easier the conduct of business for parties and their insurers".

The judge had correctly applied the following criteria established by the Supreme Court:

(i) The employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability. The Court of Appeal accepted that little weight should be given to this factor and that liability can never be founded on this alone. It also rejected the bank's submission that this issue should be looked at as at the time of the alleged torts.

(ii) The tort will have been committed as a result of activity being taken on behalf of the employer. That was clearly the case here. Although there might have been some benefit for the prospective employees, there was no doubt that the principal benefit was for the bank.

(iii) The relevant activity is likely to be part of the business activity of the employer. Again, that was clearly the case here: "There could hardly be a clearer example of that than the selection of suitable employees for a responsible institution in the service sector".

(iv) The employer will have created the risk of the tort being committed. There is no need to show the bank was negligent: "the criterion is satisfied if it is the potential defendant's acts which put the claimant in a position of risk".

(v) The GP was, to a greater or lesser degree, under the control of the employer. That was said to be "perhaps the most critical factor here". The GP had carried out a general health examination against a standard formula set by the bank.