BARCLAYS BANK V VARIOUS CLAIMANTS [2020] UKSC 13
FACTS :-
The Claimants alleged that they had suffered sexual abuse by a GP hired by the Bank to carry out medical assessments of employees.
JUDGEMENT:-
Lady Hale with whom the remainder of the court agreed gave judgment. She began with the history of the expansion of the doctrine of vicarious liability, referring to Lister v Hesley Hall Ltd [2001] UKHL 22 where the owners of a children’s home were held vicariously liable for the sexual abuse perpetrated by their warden. Then, in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 115, vicarious liability was extended to a person who was not in law the employer of the tortfeasor. In E v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] QB 722, the Claimant alleged that while living in a children’s home, she had been sexually abused by a priest appointed by the local bishop. The court held that his relationship with the bishop was sufficiently “akin to employment” to make it fair and just to hold the bishop vicariously liable. Next came Various Claimants v Catholic Child Welfare Society [2012] UKSC 56. The Claimants had attended a school owned by the Society which also employed the teachers. Some of the teachers, and the head teacher, were members of the Christian Brothers. Abuse was alleged against some of the brothers. The Supreme Court had decided that the Christian Brothers could be vicariously liable for that abuse, jointly with the Society. Lord Phillips listed a number of policy reasons that might make it fair, just and reasonable to impose vicarious liability upon an employer for the torts committed by an employee in the course of his employment:
Lady Hale said that these were not the only criteria by which to judge the question of vicarious liability, as could be seen from the judgments in E and the Various Claimants cases above. Shortly after those decisions, the Supreme Court decided in Woodland v Swimming Teachers Association [2013] UKSC 66 that a school had a non-delegable duty of care towards the pupils for whom it arranged compulsory swimming lessons with an independent contractor. However, the court also said that vicarious liability had never been extended to the negligence of those who were truly independent contractors. Most recently, in Armes v Nottinghamshire County Council [2017] UKSC 60 the Supreme Court decided that a local authority could be vicariously liable for abuse carried out by foster parents.
Lady Hale said that there was nothing in these judgments to suggest that the classic distinction between employment and relationships akin or analogous to employment, and the relationship with an independent contractor, had been eroded. In the present case, although the GP was a part-time employee of the health service, he was not at any time an employee of the Bank. Nor, viewed objectively, was he anything close to an employee.
FACTS :-
The Claimants alleged that they had suffered sexual abuse by a GP hired by the Bank to carry out medical assessments of employees.
JUDGEMENT:-
Lady Hale with whom the remainder of the court agreed gave judgment. She began with the history of the expansion of the doctrine of vicarious liability, referring to Lister v Hesley Hall Ltd [2001] UKHL 22 where the owners of a children’s home were held vicariously liable for the sexual abuse perpetrated by their warden. Then, in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 115, vicarious liability was extended to a person who was not in law the employer of the tortfeasor. In E v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] QB 722, the Claimant alleged that while living in a children’s home, she had been sexually abused by a priest appointed by the local bishop. The court held that his relationship with the bishop was sufficiently “akin to employment” to make it fair and just to hold the bishop vicariously liable. Next came Various Claimants v Catholic Child Welfare Society [2012] UKSC 56. The Claimants had attended a school owned by the Society which also employed the teachers. Some of the teachers, and the head teacher, were members of the Christian Brothers. Abuse was alleged against some of the brothers. The Supreme Court had decided that the Christian Brothers could be vicariously liable for that abuse, jointly with the Society. Lord Phillips listed a number of policy reasons that might make it fair, just and reasonable to impose vicarious liability upon an employer for the torts committed by an employee in the course of his employment:
- the employer was more likely to have the means to compensate the victim than the employee;
- the tort would have been committed as a result of activity being taken by the employee on behalf of the employer;
- the employee’s activity was likely to be part of the business activity of the employer;
- the employer, by employing the employee to carry on the activity would have created the risk of the tort committed by the employee;
- the employee would, to a greater or lesser degree, have been under the control of the employer.
Lady Hale said that these were not the only criteria by which to judge the question of vicarious liability, as could be seen from the judgments in E and the Various Claimants cases above. Shortly after those decisions, the Supreme Court decided in Woodland v Swimming Teachers Association [2013] UKSC 66 that a school had a non-delegable duty of care towards the pupils for whom it arranged compulsory swimming lessons with an independent contractor. However, the court also said that vicarious liability had never been extended to the negligence of those who were truly independent contractors. Most recently, in Armes v Nottinghamshire County Council [2017] UKSC 60 the Supreme Court decided that a local authority could be vicariously liable for abuse carried out by foster parents.
Lady Hale said that there was nothing in these judgments to suggest that the classic distinction between employment and relationships akin or analogous to employment, and the relationship with an independent contractor, had been eroded. In the present case, although the GP was a part-time employee of the health service, he was not at any time an employee of the Bank. Nor, viewed objectively, was he anything close to an employee.