UK: Vicarious liability – Assaults by an Independent Contractor
A doctor committed sexual assaults in the course of medical examinations and assessments that were carried out at Barclays’ request. These examinations were carried out either as a precursor to, or during, the claimants’ employment with Barclays.
The High Court and Court of Appeal ruled that Barclays was vicariously liable for these assaults. But the Supreme Court allowed Barclays’ appeal.
The Court considered whether there was a relationship between the parties which was capable of giving rise to vicarious liability (the first stage of the two-stage test for vicarious liability). The key issue was whether the doctor had been carrying on business on his own account or whether the relationship was close to that of employer/employee.
The Court concluded that the doctor wasn’t ‘anything close to an employee’ of the Bank, so the first stage of the vicarious liability test wasn’t met. The reasons for this included that:
- the work the doctor did for Barclays was a small proportion of his practice.
- he was not paid a retainer but was paid a fee for each assessment and could refuse to do an examination.
- he was in business on his own account as a medical practitioner with a portfolio of patients and clients, which included Barclays.
So the Supreme Court ruled that, because on the facts the doctor was an independent contractor, Barclays could not be vicariously liable for his actions.
Practical point
This case clarifies that where there is a relationship with a self-employed person who is genuinely in business on their own account, this relationship does not attract vicarious liability. This decision will be welcomed by employers, in particular those that engage independent contractors.
That said, where there is some doubt over whether an individual is genuinely conducting their own independent business, the organisation will potentially be liable for the individual’s actions.
