The recent case of Various Claimants -v- Barclays Bank plc (Dr Bates (deceased) and Barclays Group Litigation) [2017] EWHC 1929 (QB) extends the principle of vicarious liability to individuals working for organisations as independent contractors.

The group action against Barclays arose out of a series of sexual assaults perpetrated by Dr Gordon Bates who was hired by the bank as an independent contractor to carry out pre-employment medical examinations between 1968 and 1984. Dr Bates, who is now deceased, was accused of sexually assaulting more than 100 women during these medical examinations. A large number of the complainants were 16 years old at the time of the assaults. It is notable that medical examinations took place at Dr Bates’ home address where he had converted a room into a consulting room as opposed to on Barclays’ premises or premises linked to Barclays. In addition to regular instructions from Barclays, Dr Bates carried out similar medical examinations on behalf of a number of other organisations.

In the course of the proceedings Barclays denied that Dr Bates was employed by them and or was in a relationship akin to employment with the bank. Barclays argued that the relationship with Dr Bates was such that they should not be held responsible for his actions.

The court found that there was a sufficiently close connection between the assaults and the relationship between Dr Bates and Barclays. Dr Bates committed the assaults in the course of medical examinations which he was instructed to carry out by Barclays. It was relevant that the individuals were not given a choice of doctor and were required to attend the examinations by Barclays as a pre-condition of their employment with the bank.

The court found that Barclays had ‘created the risk of tortious activity’ by Bates and should be held vicariously liable for his actions.

The Principle of Vicarious Liability

The principle of vicarious liability is the means by which courts hold companies and organisations responsible for the actions (and omissions) of their employees.

In a ‘typical’ personal injury case it is commonplace to hold companies and organisations responsible for the actions of their employees. For example, if a supermarket delivery driver negligently causes a road traffic accident which results in a pedestrian sustaining personal injury, the pedestrian is likely to pursue a cause of action against the supermarket chain as opposed to the individual delivery driver. This is because the driver was acting in the course of his employment.

There are many reasons why it might be advantageous to sue a company or organisation in place of an individual employee. A company is more likely to have the financial means to pay compensation as opposed to an individual employee who may have limited finances. The company will usually have the benefit of an insurance policy which will cover any claim for compensation.

The principle of vicarious liability also recognises that it is often fair, just and reasonable to hold organisations responsible for the actions of their employees. Companies and organisations delegate tasks and activities to employees and thereby provide them with the means to abuse their position. Whilst it is impossible for organisations and companies to monitor and supervise employees at all times, organisations should not be permitted to absolve themselves of responsibility for the actions of employees who abuse their position or are negligent or reckless in how they carry out tasks.

In civil suits arising out of childhood sexual abuse, it is all too common to find Defendants who argue that they should not be held responsible for the actions of an employee who abuses children. Their argument is that the employee was acting outside of their employment when they perpetrated the offences which give rise to the claim. Alternatively, organisations sometimes look to argue that an individual was not employed by them (e.g. they were a volunteer) and so they should not be held responsible for the individual’s actions.

These arguments are frequently raised for example in claims arising out of sexual abuse by teachers or members of the clergy. In my professional experience, I have seen schools and local authorities argue that they should not be held responsible for the actions of teachers found guilty of sexually abusing pupils as the teacher was not employed to sexually abuse pupils and was therefore acting outside of their employment. Clearly such arguments are ludicrous – no right thinking organisation would ever employee someone to sexually abuse children. In these cases the teachers used their position of authority to gain access to groom and manipulate their victims. It is only right that the organisations that provided them with that platform should be held accountable for their actions.

Thankfully, recent court decisions have largely rejected Defendants’ arguments in this type of case.

In the case of Catholic Child Welfare Society and Others v Various Claimants [2012] UKSC 56 the court recognised that organisations could be held responsible for the actions of not just their employees but also individuals in a relationship akin to employment with the organisation (e.g. volunteers, certain members of the clergy. There must be a close connection between the actions and the individual’s employment or quasi employment.

Further guidance was issued by the Supreme Court in two 2016 cases Cox -v- Ministry of Justice [2016] UKSC10 and Mohamed v WM Morrison Supermarkets plc [2016] AC 677. In the case of Cox, the court found that the Ministry of Justice could be held responsible for the actions of prisoners working in a prison kitchen as the prisoners were in a relationship akin to employment with the prison.

The decision in Various Claimants -v- Barclays Bank is a welcome example which shows how the courts are prepared to apply the principle of vicarious liability and extend it to cover individuals who are not in a formal or conventional relationship of employment with an organisation.

Following the decision, it may be that organisations can be held vicariously liable for the actions of individuals they work with and instruct on a frequent basis.

This might include football teams and sports clubs being held responsible for assaults perpetrated by scouts and coaches who work with youth teams not officially linked to larger organisations. In light of recent news which has exposed the prevalence of abuse in the world of sports it is possible that this is an issue which will be explored by the courts in more detail in due course.

There may also be applicability to the developing ‘gig economy’ where individuals are regularly employed by companies as independent contractors.

Whilst it is early days and it remains to be seen how other courts will interpret and apply this ruling, the High Court decision has been viewed by some as an extension of the principle of vicarious liability.

The ruling is without doubt welcome news for individuals who have experienced sexual abuse and assaults, looking to hold organisations accountable.