Case update | Supreme Court finds that a bank was not vicariously liable for alleged sexual assaults by self-employed doctor
The first stage of the legal test for vicarious liability concerns whether there a relationship between the wrongdoer and the defendant which is capable of giving rise to vicarious liability. Unsurprisingly, this occurs most often in employment relationships, but has also been found to exist in non-employment relationships (such as a council being held liable for the acts of foster parents).
In this case, the Supreme Court had to decide whether a bank using a self-employed medical practitioner to perform medical examinations on potential bank employees could be liable for sexual assaults allegedly committed by him.
Facts: Barclays Bank engaged a self-employed doctor between 1968 and 1984 to carry out medical examinations on new recruits. The doctor was engaged in business on his own account, and was paid a fee for each medical report issued.
In 2015, by which time the doctor had died, over 100 claimants alleged that the doctor had sexually assaulted them during the examinations. However, because the doctor was no longer alive, the claims were no longer covered by his insurers.
The claimants therefore issued claims against the bank, arguing that it was vicariously liable for any assaults proved because the doctor’s wrongdoing occurred as a result of activity undertaken by him on behalf of the bank, under its control and for its benefit, and as an integral part of its business activity. The relationship was, the claimants said, sufficiently akin to employment for the bank to be liable for the doctor’s actions.
The Supreme Court disagreed. It acknowledged that the scope of vicarious liability had moved beyond just that of an employer/employee relationship, especially where it would be “fair, just and reasonable” to impose vicarious liability. However, in a situation such as this case, the doctor had genuinely been in business on his own account working with a portfolio of patients and clients, one of whom happened to be the bank. As such, the bank could not be vicariously liable for his wrongdoing.
Comment: This case, combined with the previous Morrisons decision, will be welcome for employers in terms of curbing the spread of vicarious liability and what they might be liable for based upon the actions of others. The doctrine as a whole has developed to protect innocent wronged parties, who might otherwise have no or limited recourse to an appropriate remedy. However, the concept of vicarious liability can go only so far, and it is useful that the Supreme Court has set out at least some limits in this area.
Barclays Bank plc v Various Claimants  UKSC 13
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