Bank not vicariously liable for alleged sexual assaults

In more on vicarious liability, the Supreme Court has overturned another Court of Appeal decision. This one holds that a bank was not vicariously liable for the acts of a self-employed medical practitioner who was alleged to have committed sexual assaults while carrying out medical assessments of the bank’s prospective employees: Barclays Bank plc v Various Claimants (2020).

He was in business on his own account, as a medical practitioner with a portfolio of patients and clients, one of which was the bank. The Supreme Court decided that the relationship was not akin to employment, and therefore did not give rise to vicarious liability.

In an earlier case (Catholic Child Welfare Society and others v Various Claimants and others (2012) (known as the Christian Brothers case)), Lord Phillips had identified five incidents of an employment relationship that made it fair, just and reasonable to impose vicarious liability on the employer:

  • The employer is more likely to have the means to compensate the victim and more likely to be insured.

 

  • The unlawful act will have been committed as a result of activity undertaken on the employer’s behalf.

 

  • The activity is likely to be part of the business activity of the employer.

 

  • The employer, by employing the employee, will have created the risk of the tort being committed.

 

  • The employee will to some degree be under the control of the employer.

Lady Hale, giving the unanimous judgment of the court, noted that a person can be held vicariously liable for the acts of someone who is not their employee, provided the relationship between them is sufficiently akin to employment. The question is, as it has always been, whether the person carrying out the unlawful act is carrying on business on their own account, or whether they are in a relationship akin to employment with the defendant. In doubtful cases, the five factors identified by Lord Phillips in the Christian Brothers case may help. However, where it is clear that the person who carried out the unlawful act is carrying on their own independent business, it is not necessary to consider the five factors.

The case is a welcome return to the previously established position and a limit to the expansion of the doctrine of vicarious liability that had followed on from the Christian Brothers line of cases.

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