973

[2020] AC Various Claimants v Barclays Bank plc (SC(E)

(SC(E)))

A Supreme Court

Various Claimants v Barclays Bank plc

[2020] UKSC 13
2019 Nov 28; Lord Reed PSC, Lord Hodge DPSC,
B 2020 April 1 Lord Kerr of Tonaghmore, Lord Lloyd-Jones JJSC,
Baroness Hale of Richmond

Vicarious liability  Relationship akin to employment  Doctor with portfolio

practice  Bank paying doctor to undertake pre-employment medical
examinations of claimants  Doctor allegedly sexually assaulting claimants 
Whether bank vicariously liable  Whether relationship between bank and
C doctor akin to employment  Whether su–cient that imposition of vicarious
liability fair, just and reasonable

Between 1968 and about 1984 the defendant bank arranged for a doctor to carry
out pre-employment medical examinations on the claimant job applicants, many of
whom were teenagers applying for their rst jobs on leaving school. The bank
arranged the appointments, told the claimants when and where to go and provided
the doctor with a pro forma report to ll in. The doctor was not paid a retainer by the
D
bank, but was paid a fee for each report, and the work he did for the bank was a
comparatively minor part of his portfolio practice. The examinations took place in a
consulting room in the doctors house. The claimants alleged that they were sexually
assaulted in the course of those examinations. Following the doctors death, they
sought damages for personal injury from the bank on the basis that it was vicariously
liable for the assaults. On a preliminary issue, the judge determined that the bank
was liable for any such assaults that the doctor was proved to have perpetrated. The
E
Court of Appeal upheld that decision.
On the banks appeal
Held, allowing the appeal, that a person would be vicariously liable for the
wrongful acts of someone who was not their employee if the relationship between
them was su–ciently akin or analogous to employment to make it fair, just and
reasonable to impose such liability, but such liability would not arise if the person
F
who had committed the wrongdoing had been carrying on business on his own
account; that, in the present case, the doctor had not at any time been an employee,
nor anything close to an employee, of the bank, but rather had been in business on his
own account as a medical practitioner with a portfolio of patients and clients, one of
whom was the bank; and that, accordingly, the bank was not vicariously liable for
any wrongdoing of the doctor in the course of the medical examinations he carried
out for the bank (post, paras 24, 27—28, 30).
G Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1, SC(E), Cox v
Ministry of Justice [2016] AC 660, SC(E) and Armes v Nottinghamshire County
Council [2018] AC 355, SC(E) considered.
Per curiam. By section 230(3) of the Employment Rights Act 1996, employment
law now recognises two di›erent types of worker: (a) those who work under a
contract of employment and (b) those who work under a contract whereby they
undertake to do or perform personally any work or services for another party to the
H contract whose status is not by virtue of the contract that of a client or customer of
any profession or business undertaking carried on by the worker. It would be
tempting to say that limb (b) encapsulates the distinction between people whose
relationship is akin to employment and true independent contractors. Asking that
question may be helpful in identifying true independent contractors. But it would be
going too far down the road to tidiness for the Supreme Court to align the common

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law concept of vicarious liability, developed for one set of reasons, with the statutory A
concept of worker, developed for a quite di›erent set of reasons (post, para 29).
Decision of the Court of Appeal [2018] EWCA Civ 1670; [2018] IRLR 947
reversed.
The following cases are referred to in the judgment of Baroness Hale of Richmond:
Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 355; [2017]
3 WLR 1000; [2017] PTSR 1382; [2018] 1 All ER 1, SC(E) B
Bates van Winkelhof v Clyde & Co llp (Public Concern at Work intervening) [2014]
UKSC 32; [2014] 1 WLR 2047; [2014] ICR 730; [2014] 3 All ER 225, SC(E)
Bazley v Curry [1999] 2 SCR 534
Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660; [2016] 2 WLR 806;
[2016] ICR 470; [2017] 1 All ER 1, SC(E)
D & F Estates Ltd v Church Comrs for England [1989] AC 177; [1988] 3 WLR 368;
[1988] 2 All ER 992, HL(E) C
E v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] QB 722;
[2013] 2 WLR 958; [2013] PTSR 565; [2012] 4 All ER 1152, CA
Jacobi v Gri–ths [1999] 2 SCR 570
Kafagi v JBW Group Ltd [2018] EWCA Civ 1157, CA
Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215; [2001] 2 WLR 1311;
[2001] ICR 665; [2001] 2 All ER 769, HL(E)
Ng Huat Seng v Munib Mohammad Madni [2017] SGCA 58; [2017] 2 SLR 1074
Pimlico Plumbers Ltd v Smith [2018] UKSC 29; [2018] ICR 1511; [2018] 4 All ER D
641, SC(E)
Quarman v Burnett (1840) 6 M & W 499
Salsbury v Woodland [1970] 1 QB 324; [1969] 3 WLR 29; [1969] 3 All ER 863, CA
Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1;
[2012] 3 WLR 1319; [2013] 1 All ER 670, SC(E)
Various Claimants v Wm Morrison Supermarkets plc [2020] UKSC 12; [2020] AC
989; [2020] 2 WLR 941; [2020] ICR 874; [2020] 4 All ER 1, SC(E) E
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ
1151; [2006] QB 510; [2006] 2 WLR 428; [2006] ICR 327; [2005] 4 All ER
1181, CA
Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537;
[2013] 3 WLR 1227; [2014] 1 All ER 482, SC(E)

The following additional case was cited in argument: F

X (Minors) v Bedfordshire County Council [1995] 2 AC 633; [1995] 3 WLR 152;
[1995] 3 All ER 353, HL(E)

APPEAL from the Court of Appeal

The claimants sought damages for personal injury from the defendant,
Barclays Bank plc, on the basis that it was vicariously liable for sexual abuse
allegedly carried out by Dr Gordon Bates between 1968 and 1984 during G
pre-employment medical examinations that he had carried out for the bank.
By judgment dated 26 July 2017 Nicola Davies J [2017] EWHC 1929 (QB);
[2017] IRLR 1103 held, on the trial of a preliminary issue, that the bank was
liable for any such assaults by the doctor that any claimant could prove. By
a decision dated 17 July 2018 the Court of Appeal (Sir Brian Leveson P,
McCombe and Irwin LJJ) [2018] EWCA Civ 1670; [2018] IRLR 947 H
dismissed the banks appeal.
With permission of the Supreme Court (Baroness Hale of Richmond PSC,
Lord Carnwath and Lord Sales JJSC) granted on 12 February 2019 the bank
appealed. The issues for the Supreme Court, as set out in the parties
statement of facts and issues, were: (1) whether an employer was vicariously

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A liable for the torts of an independent contractor; (2) if not, whether the ve
criteria identied by the Supreme Court in Various Claimants v Catholic
Child Welfare Society [2013] 2 AC 1 and Cox v Ministry of Justice [2016]
AC 660 were applicable to cases involving independent contractors; and
(3) whether the relationship between the doctor and the bank was one that
was capable of giving rise to vicarious liability.
The facts are stated in the judgment of Baroness Hale of Richmond, post,
B paras 2—6.

Lord Faulks QC, Nicholas Fewtrell and Katie Ayres (instructed by

Keoghs llp, Liverpool) for the defendant.
The law in relation to vicarious liability has advanced considerably in
recent years: see Lister v Hesley Hall Ltd [2002] 1 AC 215, E v English
C Province of Our Lady of Charity [2013] QB 722, Various Claimants v
Catholic Child Welfare Society [2013] 2 AC 1 (Christian Brothers), Cox v
Ministry of Justice [2016] AC 660 and Armes v Nottinghamshire County
Council [2018] AC 355. However, the decision of the Court of Appeal and
the judge at rst instance represented an advance in the law not warranted
by authority and contrary to established law. The relationship between
Dr Bates and the defendant was not one of employment or akin to
D employment; at all material times Dr Bates was an independent contractor,
carrying on a business of his own. There is, therefore, no need to consider
the ve factors identied by Lord Phillips of Worth Matravers in Christian
Brothers [2013] 2 AC 1, para 35 as to why it is usually fair, just and
reasonable to impose vicarious liability on an employer. While Christian
Brothers and Cox [2016] AC 660 recognise that the doctrine of vicarious
liability can be applied outside the strict connes of an employment
E
relationship, their essential contribution was to ne-tune the existing
framework underlying the doctrine so as to accommodate the more diverse
range of relationships which might be encountered in todays context.
Those relationships, when whittled down to their essence, possess the
same fundamental qualities as those which inhere in employer-employee
relationships, and thus make it appropriate for vicarious liability to be
F imposed. The Court of Appeal was wrong to conclude that Lord Phillips
silence in Christian Brothers on the issue of the independent contractor
defence indicated that the advent of the ve factors had replaced it. Nothing
that Lord Phillips said in that case cast any doubt on Ward LJs observations
in E v English Province of Our Lady of Charity [2013] QB 722, para 69 to
the e›ect that an employer was not liable for the torts of his independent
contractor. Indeed, the Supreme Court has made specic reference to the
G independent contractor defence in subsequent decisions: see Woodland v
Swimming Teachers Association [2014] AC 537, 572, para 3, Cox v Ministry
of Justice [2016] AC 660, para 29 and Armes v Nottinghamshire County
Council [2018] AC 355, paras 59—63. The Court of Appeals judgment has
been the subject of much academic debate and criticism, which indicates that
it marked a signicant and surprising shift in the law: see Gray, Vicarious
Liability, Critique and Reform (2018), pp 186, 205, 215; Silink, Vicarious
H
Liability of a Bank for the Acts of a Contracted Doctor (2018) 34 PN 46;
Silink and Ryan, Vicarious Liability for Independent Contractors [2018]
CLJ 458; Bell, Double, Double Toil and Trouble: Recent Movements in
Vicarious Liability [2018] JPI Law 235. [Reference was also made to
Bazley v Curry [1999] 2 SCR 534 and Jacobi v Gri–ths [1999] 2 SCR 570.]

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Argument

The approach taken in Christian Brothers [2013] 2 AC 1 was intended to A

systematise and update the law of vicarious liability in the light of modern
business realities: see Ng Huat Seng v Munib Mohammad Madni [2017]
2 SLR 1074, para 63. The reality of modern business is that there are three
recognisable types of working relationship: employees, those akin to
employees, and independent contractors: see Bates van Winkelhof v Clyde
& Co llp (Public Concern at Work intervening) [2014] 1 WLR 2047,
paras 24—25. Lord Phillips ve factors need not be applied to employees B
and should not be applied to independent contractors who are clearly
carrying on an independent business of their own: see Armes v
Nottinghamshire County Council [2018] AC 355, para 59. Where a
relationship dees that binary classication, the ve factors can be used to
determine whether the role is su–ciently akin to employment for the
purposes of determining whether it is fair, just and reasonable to impose C
vicarious liability. Roles that epitomise modern working relationships
which defy binary classication are those which make up what is often
referred to as the gig economy. In this context, parallels can be drawn
with workers within the meaning of section 230(1) of the Employment
Rights Act 1996: see Pimlico Plumbers Ltd v Smith [2018] ICR 1511. In
order to promote legal clarity and coherence for working relationships, it
might be preferable for the liability of employers (or those akin to D
employers) to be more closely aligned across the spheres of employment law
and vicarious liability: see Fraser and Allen QC, Worker Status and
Vicarious Liability: The Need for Coherence (13 February 2018)
(University of Cambridge Faculty of Law Research Paper No 21/2018).
However, the result should not be any di›erent because the tort is an
intentional assault: see Cox [2016] AC 660, para 29.
E
Alternatively, if the question of whether a person is an independent
contractor is no longer part of the test for determining whether vicarious
liability exists, the Court of Appeal erred in its analysis and application of
the ve factors identied by Lord Phillips in Christian Brothers [2013] 2 AC
1, para 35, namely that: (i) the employer was more likely to have the means
to compensate the victim than the employee; (ii) the tort was committed as a
result of activity being taken by the employee on behalf of the employer; F
(iii) the employees activity was part of the business activity of the employer;
(iv) the employer, by employing the employee to carry on the activity,
created the risk of the tort committed by the employee; and (v) the employee
would, to a greater or lesser degree, have been under the control of the
employer. Those factors are not to be applied mechanically or slavishly
(Cox [2016] AC 660, para 42) and the words used by judges are not to be
treated as if they are the words of statute, setting the rules in stone: see G
Woodland v Swimming Teachers Association [2014] AC 537, 589, para 38.
Of the ve factors, two are not considered now to be of equal signicance,
namely the likelihood that the employer has the means to compensate and
that the employee would to a greater or lesser degree be under the control of
the employer: see Cox, para 20.
It was not suggested that the defendant would be unable to satisfy any
H
judgment but, at the time of each of the alleged torts, Dr Bates would also
have had the nancial ability to compensate the claimants. The Court of
Appeal erred in concluding that the court should look at the matter at the
time of the litigation and not at the time of the torts. Further, the court should
bear in mind that there was always another avenue open to the claimants to

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A obtain compensation, namely the Criminal Injuries Compensation Board

(later replaced by the Criminal Injuries Compensation Authority).
The Court of Appeal wrongly concluded that, since the selection of
suitable employees was principally for the defendants benet, it was
therefore an activity undertaken on its behalf. It is almost impossible to
imagine a situation where the hiring of any independent contractor would
not be for the benet of an organisation. The reality was that Dr Bates was
B not representing the defendant when conducting examinations; he was
representing himself, an independent medical practitioner, carrying on his
profession or business undertaking on his own account.
The Court of Appeal failed to deal adequately with the defendants
central submission that there was a lack of integration of Dr Bates practice
into the defendants business. Specically, it failed to address the central
C question of whether Dr Bates was running an independent business of his
own: see Armes [2018] AC 355, para 59. The test of integration has to refer
to the extent to which a tortfeasor had become a part of the business of the
defendant rather than simply be based on whether, in providing services, he
was involved in an activity that was for the defendants benet. The Court of
Appeal conated the notions that: (i) the recruitment of sta› was an activity
that was integral to the defendants business; and (ii) the means and methods
D by which specic sta› were recruited, which was not integral to its business
but was a peripheral and changeable mode of implementing an integral
activity. Dr Bates relationship with the defendant was very much at
arms length. It was nothing like one of the modern quasi-employment
relationships where, for tax or other reasons, an employee is articially
labelled as being some form of independent worker despite the realities of
the relationship. The Court of Appeal failed to mention, let alone consider,
E
the fact that only a minor part of Dr Bates workload came from the
defendant: see Kafagi v JBW Group Ltd [2018] EWCA Civ 1157 at [53].
The defendants request that potential employees attend an appointment
with Dr Bates might have been the sine qua non of the assaults but, in the
absence of any negligence on the part of the defendant, it was an
introduction replicated in many di›erent circumstances in which a person
F might be invited to attend a medical examination. There are many situations
in which employers and other organisations, such as insurance companies
and government bodies, might seek independent medical examinations,
thereby giving rise, on the Court of Appeals analysis, to a risk of abuse.
The opportunity that a private medical examination presents for abuse is
obvious, whether a physical examination is indicated or even if, for example,
the appointment is concerned with potential psychiatric help being
G obtained. Vicarious liability should not automatically be applied to such a
relationship.
Contrary to Cox [2016] AC 660 the Court of Appeal placed particular
emphasis on the degree of control said to have been exercised over Dr Bates.
In fact, the correct analysis is that the defendant specied the matters upon
which it wanted Dr Bates to report and it was up to him to determine what
examinations to perform and how to conduct them. In any event, the level
H
of detail in a specication does not alter the nature of the relationship unless
there is actual control over the work being exercised. The engagement of a
doctor in private practice by a prospective employer or any other
organisation is strongly indicative of an intention to rely on the independent
skill of that professional. In such circumstances the appetite and practical

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potential for exercising control is minimal. Control may not be one of the A
most important factors in the analysis but the absence of even a vestigial
degree of control over the way the examinations were carried out militates
against there being vicarious liability: see Cox, para 21.
Elizabeth-Anne Gumbel QC and Robert Kellar QC (instructed by Slater
and Gordon UK Ltd, Manchester) for the claimants.
The starting point in determining if a particular relationship gives rise to B
vicarious liability is the ve criteria set out in Various Claimants v Catholic
Child Welfare Society [2013] 2 AC 1 (Christian Brothers), para 35, which
identify those incidents of the relationship between employer and employee
that make it fair, just and reasonable to impose vicarious liability on a
defendant. When the defendant and the tortfeasor are not bound by a
contract of employment, but their relationship has the same incidents, that C
relationship can properly give rise to vicarious liability on the ground that it
is akin to that between an employer and an employee: see Christian
Brothers, para 47, E v English Province of Our Lady of Charity [2013] QB
722 and Cox [2016] AC 660, para 29. In both Cox and Armes v
Nottinghamshire Council [2018] AC 355 the ve factors were treated as
criteria for the imposition of vicarious liability where the relationship was
not one of employment (the Cox criteria). D
In line with the approach identied in Cox and a–rmed in Armes, the label
independent contractor is not a useful categorisation for the purposes of
determining whether the defendant was vicariously liable for the actions of
Dr Bates. Since the inception of the independent contractor defence in the
early 19th century (see Quarman v Burnett (1840) 6 M & W 49) there has
been a dramatic transformation in both the labour market and the law on E
vicarious liability. First, the courts have explicitly recognised the overriding
importance and precedence of policy considerations when mapping the limits
of vicarious liability: see Bazley v Curry [1999] 2 SCR 534, Lister v Hesley
Hall Ltd [2002] 1 AC 215, paras 65—66, Viasystems (Tyneside) Ltd v
Thermal Transfer (Northern) Ltd [2006] QB 510, para 55, E v English
Province of Our Lady of Charity [2013] QB 722, paras 50—54 and Christian
Brothers [2013] 2 AC 1. Second, as a consequence of that policy-focused F
approach, and in response to the changes in the labour market, the courts
have recognised that it is no longer appropriate to determine the existence of
vicarious liability by reference to technical arguments about employment
status: see E v English Province of Our Lady of Charity [2013] QB 722,
paras 59, 73 and Cox [2016] AC 660, para 31. Third, there has been explicit
recognition by the courts of the particular policy considerations at play in G
cases involving the sexual abuse of minors: see Bazley v Curry [1999] 2 SCR
534, para 45 and Christian Brothers [2013] 2 AC 1, paras 83, 86. Those
policy considerations are no less important when considering whether
defendants who engage independent contractors to further their business
interests should avoid liability for sexual abuse. [Reference was also made to
X (Minors) v Bedfordshire County Council [1995] 2 AC 633.]
H
The defendants proposed approach, namely that the independent
contractor defence continues to apply to independent contractors carrying
on a business of their own, is unsustainable. First, it is fundamentally
inconsistent with the modern policy-centric approach to vicarious liability in
which precedence is given to function and purpose over form: see Viasystems

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A (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510, paras 55,
77. Secondly, the various policy factors that justify the imposition of
vicarious liability are plainly capable, in principle, of applying to
independent contractors carrying on a business of their own. The
question is whether the tortfeasors activities are su–ciently part of the
activities of the defendant and for its benet to justify the imposition of
B
vicarious liability: see Cox [2016] AC 660, paras 23, 30. Moreover, it is not
necessary for a relationship to closely resemble that of employer/employee
for vicarious liability to arise: see Armes v Nottinghamshire County Council
[2018] AC 355. Thirdly, the defendants case ignores the over-arching
policy objective of providing a remedy for victims of sexual abuse in
appropriate cases. Where an independent contractor is engaged in a way
that places them in a position of authority over a vulnerable child the
C potential risk of abuse that thereby arises does not depend upon the
contractors employment status. Fourthly, the legal taxonomy relied upon
by the defendant (see Bates van Winkelhof v Clyde & Co llp (Public Concern
at Work intervening) [2014] 1 WLR 2047) arises from a statutory
employment law context that is far removed from the common law on
vicarious liability. It arises, in part, from the denition of workers in
D section 230(3) of the Employment Rights Act 1996. Workers enjoy
various statutory rights including entitlement to the national minimum
wage, protection against unauthorised deductions from pay and the right
not to be discriminated against unlawfully. The policy factors that justify
limiting these protections to workers, as statutorily dened, may be very
di›erent from the policy factors that delineate the scope of vicarious
liability. The concept of vicarious liability should not be conned by the
E concrete demands of statutory construction in a wholly di›erent context: see
E v English Province of Our Lady of Charity [2013] QB 722, para 59.
Finally, whereas the claimants advance a single coherent test applicable to all
non-employees, the defendants proposed approach is liable to create
confusion and uncertainty. The categories of self-employed person
described in Bates van Winkelhof are easy to state but the dividing line
F between them may be di–cult to apply in practice. It is plainly undesirable
that arguments of this nature be imported into the law on vicarious liability.
Accordingly, whether a relationship between a defendant and an
independent contractor gives rise to vicarious liability will depend upon the
application of the Cox criteria to the particular facts of the case, subject to
there being a su–ciently close connection between that relationship and the
tort in question. The relationship between Dr Bates and the defendant was
G
one that was capable of giving rise to vicarious liability and both the judge
and the Court of Appeal applied the criteria in Cox correctly. The important
features of the case included: (a) the medical examinations were performed
by Dr Bates in the name of the defendant and on behalf of the defendant;
(b) the examinations were an integral part of the defendants own
recruitment process; (c) the circumstances in which Dr Bates was engaged
H gave rise to, or increased, the risk of abuse; and (d) there was a degree of
control exercised by the bank over the medical examination.
Faulks QC replied.

The court took time for consideration.

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Baroness Hale of Richmond

1 April 2020. BARONESS HALE OF RICHMOND (with whom LORD A

REED PSC, LORD HODGE DPSC, LORD KERR OF TONAGHMORE and
LORD LLOYD-JONES JJSC agreed) handed down the following judgment.

1 The law of vicarious liability is on the move. So stated Lord Phillips

of Worth Matravers in Various Claimants v Catholic Child Welfare Society
[2013] 2 AC 1, generally known as Christian Brothers, at para 19. The
question raised by the current case, and by the parallel case of Various B
Claimants v Wm Morrison Supermarkets plc [2020] AC 989, is how far that
move can take it. Two elements have to be shown before one person can be
made vicariously liable for the torts committed by another. The rst is a
relationship between the two persons which makes it proper for the law to
make the one pay for the fault of the other. Historically, and leaving aside
relationships such as agency and partnership, that was limited to the C
relationship between employer and employee, but that has now been
somewhat broadened. That is the subject matter of this case. The second is
the connection between that relationship and the tortfeasors wrongdoing.
Historically, the tort had to be committed in the course or within the scope
of the tortfeasors employment, but that too has now been somewhat
broadened. That is the subject matter of the Wm Morrison case.
D
The facts
2 The issue before us is whether Barclays Bank is vicariously liable for
the sexual assaults allegedly committed between 1968 and about 1984 by
the late Dr Gordon Bates on some 126 claimants in this group action.
Dr Bates was a medical practitioner practising in Newcastle upon Tyne.
According to his sons evidence, he had a portfolio practice. Some of it E
was as an employee in local hospitals. Some of it was doing medical
examinations for emigration purposes. Some of it was doing miscellaneous
work for insurance companies, a mining company and a government board.
Some of it was doing medical assessments and examinations of employees or
prospective employees, originally for Martins Bank, and later for Barclays
Bank following their merger in 1969. This was, however, a comparatively F
minor part of his practice. He also wrote a newspaper column.
3 Applicants for jobs at Barclays who were successful at interview
would be told that they would be o›ered a job, subject to passing a medical
examination and obtaining satisfactory results in their GCE examinations.
The purpose of the examination was to show that they were medically t for
working in the bank and could be recommended for life insurance at
ordinary rates as required by the banks pension scheme. The bank arranged G
the appointments with Dr Bates, told the applicants when and where to go,
and provided him with a pro forma report to be lled in. This was headed
Barclays Condential Medical Report and signed by Dr Bates and the
applicant. Dr Bates was paid a fee for each report. He was not paid a
retainer by the bank. If the report was satisfactory, the job o›er would be
conrmed, subject to examination results.
H
4 At that time, the bank was recruiting young people, many of them
female. Many of the claimants were teenagers at the time, some aged 16,
going for their rst jobs on leaving school. The examinations took place in
Dr Bates home in Newcastle. A room in the house had been converted into a
consulting room. The claimants were always alone in the room when they

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Baroness Hale of Richmond

A were examined by the doctor, although some attended on their own and some
were accompanied by other family members. It is alleged that Dr Bates
sexually assaulted them in the course of those examinations, by inappropriate
examination of their breasts and/or digital contact with or penetration of
their anus or vagina.
5 Dr Bates died in 2009 and his estate (worth over half a million
pounds) has been distributed. He cannot be sued by the claimants but
B
neither can the bank claim contribution from him should any of these
actions succeed.
6 This litigation began in 2015 and a group litigation order was made
in 2016. The managing judge, Nicola Davies J, ordered a trial of the
preliminary issue of whether the bank is vicariously liable for any assaults
that Dr Bates is proved to have perpetrated in the course of medical
C examinations carried out at the banks request. On 26 July 2017, Nicola
Davies J held that Barclays is vicariously liable for any assaults proved [2017]
IRLR 1103. On 17 July 2018 the Court of Appeal dismissed Barclays appeal
[2018] IRLR 947. The bank now appeals to this court.

The parties cases

7 The parties respective positions can be simply put. As Lord Bridge of
D
Harwich stated in D & F Estates Ltd v Church Comrs for England [1989]
AC 177, 208 (echoing the words of Widgery LJ in Salsbury v Woodland
[1970] 1 QB 324, 336), It is trite law that the employer of an independent
contractor is, in general, not liable for the negligence or other torts
committed by the contractor in the course of the execution of the work.
The bank argues that, although recent decisions have expanded the
E categories of relationship which can give rise to vicarious liability beyond a
contract of employment, they have not so expanded it as to destroy this trite
proposition of law, which has been with us since at least the decision of
Baron Parke in Quarman v Burnett (1840) 6 M & W 499.
8 The claimants, on the other hand, argue that the recent Supreme Court
cases of Christian Brothers [2013] 2 AC 1, Cox v Ministry of Justice [2016]
AC 660 and Armes v Nottinghamshire County Council [2018] AC 355 have
F replaced that trite proposition with a more nuanced multi-factorial approach
in which a range of incidents are considered in deciding whether it is fair,
just and reasonable to impose vicarious liability upon this person for the
torts of another person who is not his employee. That was the approach
adopted both by the trial judge and the Court of Appeal in this case.
9 It will be apparent, therefore, that it is necessary to examine those
G three decisions in some detail, along with their precursor, the decision of the
Court of Appeal in E v English Province of Our Lady of Charity [2013] QB
722, some four months before the decision in the Christian Brothers case, as
well as some later cases. As it happens, I sat on all three of the Supreme
Court cases and agreed with the leading judgment in each; Lord Reed PSC
sat on Cox and Armes, in each of which he delivered the leading judgment;
Lord Kerr of Tonaghmore JSC sat on Christian Brothers and Armes and
H agreed with the leading judgment in each.

The recent decisions

10 The recent expansion in the law of vicarious liability began with the
House of Lords decision in Lister v Hesley Hall Ltd [2002] 1 AC 215. The

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owners of a childrens home were held vicariously liable for the sexual abuse A
perpetrated by their employee, the warden. It was thus concerned with stage
two of the enquirythe connection between the employment and the
wrongdoingand not with stage one. Nevertheless, it proved inuential in
later cases, partly because of the willingness to expand the law, and partly
because of the prominence it gave to some important decisions of the
Supreme Court of Canada, which had placed emphasis on the policy
considerations underlying the law. Although their Lordships did not endorse B
all of those policy considerations, they did adopt the same test as had been
adopted in Canada. Furthermore, some of those policy considerations found
their way into the later cases dealing with stage one of the enquiry.
11 In Bazley v Curry [1999] 2 SCR 534, the owners of a childrens home
were held vicariously liable for sexual abuse committed by one of their
employees in the home. The fundamental question was whether the wrongful C
act was su–ciently related to the conduct authorised by the employer to
justify imposing vicarious liability. This was generally appropriate where
there was a signicant connection between the creation or enhancement of
the risk and the wrongdoing. Vicarious liability would then serve the policy
aims of providing an adequate remedy and deterring the risk. Once engaged
in a business it was fair that the employer be made to pay for the generally
foreseeable risks of that business. In contrast, in Jacobi v Gri–ths [1999] D
2 SCR 570, a childrens club was not vicariously liable for the acts of an
employee which took place in the employees home outside working hours. It
was not enough that his employment in the club gave him the opportunity to
make friends with the children.
12 The rst English case to consider directly whether the enquiry at
stage one might expand beyond the relationship of employee and employer
E
was Es case [2013] QB 722. This built upon the earlier decision in
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB
510. Severe ood damage had been caused to a factory, where air-
conditioning was being installed, by the negligence of a tters mate; the
tter and his mate had been supplied on a labour only basis by the third
defendant to the second defendant to whom some of the work had been
sub-contracted; the Court of Appeal held both the second and third F
defendants jointly vicariously liable. May LJ relied on the fact that both
were in a position to control the tters mate. Rix LJ, on the other hand, said
that he would hazard the view that what one is looking for is a situation
where the employee in question, at any rate for relevant purposes, is so much
a part of the work, business or organisation of both employers that it is just
to make both employers answer for his negligence (para 79). Thus was
vicarious liability extended to a person who was not in law the employer of G
the tortfeasor.
13 In Es case, the claimant alleged that while living in a childrens
home run by a Roman Catholic order of nuns she had been sexually abused
by a priest appointed by the local diocesan bishop. The issue was whether
the trust which stood in the place of the bishop could be vicariously liable for
the priests wrongdoing. The priest was not an employee of the bishop or the
H
diocese. Nevertheless, it was held that his relationship with the bishop was
su–ciently akin to employment to make it fair and just to hold the bishop
vicariously liable. Signicantly, Ward LJ, who gave the leading judgment,
did not question the traditional distinction between an employee and an
independent contractor. Rather, he asked himself what was the essence of

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A each of those roles and then asked whether the relationship between the
priest and the bishop was closer to that of an employee or to that of an
independent contractor. He summed up the di›erence thus, at para 70:
an employee is one who is paid a wage or salary to work under some,
if only slight, control of his employer in his employers business for his
employers business. The independent contractor works in and for his
B own business at his risk of prot or loss.
By that test, the relationship between priest and bishop was su–ciently akin
to employment to make it fair and just to hold the bishop liable.
14 Next came the Christian Brothers case [2013] 2 AC 1. This raised
issues at both stage one and stage two of the enquiry but much more
prominently at stage one. The claimants had been inmates at a residential
C school owned by the Catholic Child Welfare Society (referred to as the
Middlesbrough defendants), which also employed the teachers. Some of
the teachers, and the head teacher, were members of the Institute of
Christian Brothers. Serious physical and sexual abuse was alleged against
some of the brothers. The issue was whether the institute could be
vicariously liable, jointly with the Middlesbrough defendants.
D 15 In para 35, Lord Phillips of Worth Matravers listed a number of
policy reasons usually making 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:
(i) the employer is more likely to have the means to compensate the
victim than the employee and can be expected to have insured against that
E liability; (ii) the tort will have been committed as a result of activity being
taken by the employee on behalf of the employer; (iii) the employees
activity is likely to be part of the business activity of the employer; (iv) the
employer, by employing the employee to carry on the activity will have
created the risk of the tort committed by the employee; (v) the employee
will, to a greater or lesser degree, have been under the control of the
employer.
F
16 These are policy reasons, closely related to the policy reasons derived
from the Canadian cases and Lister v Hesley Hall Ltd [2002] 1 AC 215. But,
as Lord Hobhouse of Woodborough stressed in that case, at para 60:
an exposition of the policy reasons for a rule (or even a description) is
not the same as dening the criteria for its application. Legal rules have to
G have a greater degree of clarity and denition than is provided by simply
explaining the reasons for the existence of the rule and the social need for
it, instructive though that may be.
This passage was cited by Ward LJ in Es case [2013] QB 722, para 54,
followed by this:
My own view is that one cannot understand how the law relating to
H
vicarious liability has developed nor how, if at all, it should develop
without being aware of the various strands of policy which have informed
that development. On the other hand, a coherent development of the law
should proceed incrementally in a principled way, not as an expedient
reaction to the problem confronting the court.

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There appears to have been a tendency to elide the policy reasons for the A
doctrine of the employers liability for the acts of his employee, set out in
para 35 of Christian Brothers [2013] 2 AC 1, with the principles which
should guide the development of that liability into relationships which are
not employment but which are su–ciently akin to employment to make it
fair and just to impose such liability.
17 This may have arisen because of what Lord Phillips said, at para 47:
B
At para 35 above, I have identied those incidents of the relationship
between employer and employee that make it fair, just and reasonable to
impose vicarious liability on a defendant. Where the defendant and
the tortfeasor are not bound by a contract of employment, but their
relationship has the same incidents, that relationship can properly give
rise to vicarious liability on the ground that it is akin to that between an
employer and an employee. That was the approach adopted by the Court C
of Appeal in Es case [2013] QB 722.
18 I do not believe that by his reference to those incidents Lord
Phillips was saying that they were the only criteria by which to judge the
question. This is for two reasons. First, in Es case [2013] QB 722, Ward LJ
had adopted the test of akin to employment but he had not asked himself
whether those ve incidents were present. He had conducted a searching D
enquiry into whether the relationship between the priest and the bishop was
more akin to employment than to anything else. Secondly, when it came to
applying the akin to employment test in the Christian Brothers case [2013]
2 AC 1, Lord Phillips did not address himself to those ve incidents but to the
detailed features of the relationship. Thus:
56. In the context of vicarious liability the relationship between the E
teaching brothers and the institute had many of the elements, and all the
essential elements, of the relationship between employer and employees.
(i) The institute was subdivided into a hierarchical structure and conducted
its activities as if it were a corporate body. (ii) The teaching activity of the
brothers was undertaken because the provincial directed the brothers to
undertake it. True it is that the brothers entered into contracts of
employment with the Middlesbrough defendants, but they did so because F
the provincial required them to do so. (iii) The teaching activity
undertaken by the brothers was in furtherance of the objective, or mission,
of the institute. (iv) The manner in which the brother teachers were obliged
to conduct themselves as teachers was dictated by the institutes rules.
57. The relationship between the teacher brothers and the institute
di›ered from that of the relationship between employer and employee in G
that: (i) The brothers were bound to the institute not by contract, but by
their vows. (ii) Far from the institute paying the brothers, the brothers
entered into deeds under which they were obliged to transfer all their
earnings to the institute. The institute catered for their needs from these
funds.
58. Neither of these di›erences is material. Indeed they rendered the
relationship between the brothers and the institute closer than that of an H
employer and its employees.
I have quoted these paragraphs at length to show that he was answering the
questions by reference to the details of the relationship, and its closeness to
employment, rather than by reference to the ve policy reasons in para 35.

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A 19 It is signicant that, shortly after the decision in Christian Brothers,

this court decided Woodland v Swimming Teachers Association [2014] AC
537, in which it was held that a school had a non-delegable duty of care
towards the pupils for whom it arranged compulsory swimming lessons with
an independent contractor. Lord Sumption JSC said this, at p 572, para 3:
The boundaries of vicarious liability have been expanded by recent
B decisions of the courts to embrace tortfeasors who are not employees of
the defendant, but stand in a relationship which is su–ciently analogous
to employment: Various Claimants v Catholic Child Welfare Society
[2013] 2 AC 1. But it has never extended to the negligence of those who
are truly independent contractors, such as Mrs Stopford appears to have
been in this case.
C Lord Sumption JSC not only saw the Christian Brothers case as adopting the
su–ciently analogous to employment test but also as casting no doubt on
the conventional distinction between employees, and those analogous to
employees, and independent contractors.
20 The next case was Cox v Ministry of Justice [2016] AC 660. The
issue was whether the prison service could be vicariously liable for injuries
caused to a prison catering manager by the negligence of a prisoner who was
D working under her direction on prison service pay. There was no contract of
employment between the prison and the prisoners. Nevertheless, applying
the Christian Brothers case, this court held that the prison was vicariously
liable. It is fair to say that Lord Reed JSC did focus on the ve policy factors
identied by Lord Phillips. He pointed out that they are not all of equal
signicance. Factor (i), deep pockets, is not in itself a principled reason to
impose liability, although the absence of any other source of compensation
E
may sometimes be taken into account (para 20). Factor (v), control, does
not have the signicance which once it did. In todays world an employer is
likely to be able to tell an employee what to do but not (at least always) how
to do it. But the absence of even this vestigial degree of control would point
against liability (para 21). That left three interrelated factors: (ii) that the
tort was committed as a result of activity undertaken by the tortfeasor on
F behalf of the defendant; (iii) that the activity was part of the business activity
of the defendant; and (iv) that by employing the tortfeasor to do it, the
defendant created the risk of his committing the tort (para 22). He summed
up the principle thus, at para 24:
The result of this approach is that a relationship other than one of
employment is in principle capable of giving rise to vicarious liability
G where harm is wrongfully done by an individual who carries on activities
as an integral part of the business activities carried on by a defendant and
for its benet (rather than his activities being entirely attributable to the
conduct of a recognisably independent business of his own or of a third
party), and where the commission of the wrongful act is a risk created by
the defendant by assigning those activities to the individual in question.
(Emphasis supplied.)
H
21 Lord Reed JSC went on to refer to Lord Phillips citation of Es
case and the su–ciently akin to employment test (para 26) and to his
application of that test to the facts of the Christian Brothers activities
(para 27). He emphasised that this new general approach was not special to
cases of alleged sexual abuse (para 29). He repeated the distinction between

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integrated activities and activities entirely attributable to the conduct of a A

recognisably independent business of the tortfeasor or some other person
(para 29). And he pointed out that references to business and enterprise
did not mean that the employers activities had to be commercial in nature
(para 30). He had no di–culty in concluding that the prison service was
vicariously liable for the prisoners tort.
22 It seems to me obvious that in Cox the result was bound to be the
same whether it was expressed in terms of the test stated in para 24 of Lord B
Reed JSCs judgment or in terms of the su–ciently akin to employment
test. Indeed, the case for vicarious liability for torts committed by prisoners
in the course of their work within the prison seems to me a fortiori the case
for vicarious liability for the work done by employees for their employers.
There is nothing in Lord Reed JSCs judgment to cast doubt on the classic
distinction between work done for an employer as part of the business of C
that employer and work done by an independent contractor as part of the
business of that contractor.
23 The last, and perhaps the most di–cult, case is Armes v
Nottinghamshire County Council [2018] AC 355. The issue was whether
the county council could be vicariously liable for physical and sexual abuse
allegedly carried out by two of the foster parents with whom the claimant
was placed by the county council while in their care. Lord Reed JSC D
repeated his analysis in Cox, prefacing his account with the statement that,
while the classic example of a relationship justifying the imposing of
vicarious liability was employer and employee, as explained in Cox and
Christian Brothers the doctrine can also apply where the relationship has
certain characteristics similar to those found in employment (para 54). In
applying the ve incidents identied in those cases, he placed more
E
emphasis on the lack of any other source of compensation if there were no
vicarious liability and on the extent of the control exercised by the local
authority over the foster parents care for the children (para 62). In applying
the three interrelated factors, he held that the relevant activity of the local
authority was the care of children committed to the local authoritys care
(para 59). The foster parents were an integral part of the local authoritys
organisation of its childcare services, carried on for the benet of the F
local authority (para 60). By placing the children in foster care, the local
authority had created the risk of the harm being done (para 61).
Signicantly, having examined the relationship between the foster parents
and the local authority in some detail, he concluded that the foster
parents . . . cannot be regarded as carrying on an independent business of
their own (para 59).
24 There is nothing, therefore, in the trilogy of Supreme Court cases G
discussed above to suggest that the classic distinction between employment
and relationships akin or analogous to employment, on the one hand, and
the relationship with an independent contractor, on the other hand, has been
eroded. Two cases decided by common law courts since Christian Brothers
and Cox have reached the same conclusion.
25 In Kafagi v JBW Group Ltd [2018] EWCA Civ 1157, Singh LJ
H
stated that the development from employment to something akin to
employment  had not undermined the conventional distinction between a
contract of employment and a contract for services (para 21). The defendant
company had a contract with a local authority to collect their council tax
debts. It sub-contracted the work to a registered baili›, the alleged tortfeasor,

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A who ran his own business and could pick and choose what work to do
(para 50), had his own insurance (para 52) and could work for other clients
(para 53). Their relationship was not akin to employment (para 56).
26 In Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074,
the owners of a property had engaged the tortfeasor as an independent
contractor to carry out demolition works at their premises. It was argued
that the recent decisions had undermined the distinction between employees
B
and independent contractors. The Singapore Court of Appeal (their nal
court) held that the two cases did not present a new analytical framework.
Rather (para 63):
while we accept that the Christian Brothers case and Cox recognise
that the doctrine of vicarious liability can be applied outside the strict
connes of an employment relationship, it becomes evident, when one
C
examines these judgments more closely, that their essential contribution
was to ne-tune the existing framework underlying the doctrine so as to
accommodate the more diverse range of relationships which might be
encountered in todays context. These relationships, when whittled down
to their essence, possess the same fundamental qualities as those which
inhere in employer-employee relationships, and thus make it appropriate
D for vicarious liability to be imposed.
Further (para 64):
Indeed, we do not see how vicarious liability, the normative
foundation of which rests on the theory that it is fair, just and reasonable
to hold a defendant liable for the acts of the tortfeasor on the ground that
the tortfeasor is in fact engaged in the defendants enterprise, could
E possibly be extended to tortious acts committed by an independent
contractor, who, by denition, is engaged in his own enterprise. There is
simply nothing fair, just and reasonable about imposing secondary
liability on a defendant in such a situation.
27 The question therefore is, as it has always been, whether the
tortfeasor is carrying on business on his own account or whether he is in a
F relationship akin to employment with the defendant. In doubtful cases, the
ve incidents identied by Lord Phillips may be helpful in identifying a
relationship which is su–ciently analogous to employment to make it fair,
just and reasonable to impose vicarious liability. Although they were
enunciated in the context of non-commercial enterprises, they may be
relevant in deciding whether workers who may be technically self-employed
G or agency workers are e›ectively part and parcel of the employers business.
But the key, as it was in Christian Brothers [2013] 2 AC 1, Cox [2016] AC
660 and Armes [2018] AC 355, will usually lie in understanding the details
of the relationship. Where it is clear that the tortfeasor is carrying on his
own independent business it is not necessary to consider the ve incidents.

Application in this case

H
28 Clearly, although Dr Bates 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. He did, of course, do
work for the bank. The bank made the arrangements for the examinations
and sent him the forms to ll in. It therefore chose the questions to which it

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wanted answers. But the same would be true of many other people who did A
work for the bank but were clearly independent contractors, ranging from
the company hired to clean its windows to the auditors hired to audit its
books. Dr Bates was not paid a retainer which might have obliged him to
accept a certain number of referrals from the bank. He was paid a fee for
each report. He was free to refuse an o›ered examination should he wish to
do so. He no doubt carried his own medical liability insurance, although
this may not have covered him from liability for deliberate wrongdoing. He B
was in business on his own account as a medical practitioner with a portfolio
of patients and clients. One of those clients was the bank.

Comment
29 Until these recent developments, it was largely assumed that a
person would be an employee for all purposesemployment law, tax, social C
security and vicarious liability. Recent developments have broken that link,
which may be of benet to people harmed by the torts of those working in
the gig economy. It would be tempting to align the law of vicarious
liability with employment law in a di›erent way. Employment law now
recognises two di›erent types of worker: (a) those who work under a
contract of employment and (b) those who work under a contract whereby
the individual undertakes to do or perform personally any work or services D
for another party to the contract whose status is not by virtue of the contract
that of a client or customer of any profession or business undertaking carried
on by the individual (section 230(3) of the Employment Rights Act 1996).
Limb (b) workers enjoy some but by no means all the employment rights
enjoyed by limb (a) workers. It would be tempting to say that limb
(b) encapsulates the distinction between people whose relationship is akin to E
employment and true independent contractors: people such as the solicitor
in Bates van Winkelhof v Clyde & Co llp (Public Concern at Work
intervening) [2014] 1 WLR 2047 or the plumber in Pimlico Plumbers Ltd v
Smith [2018] ICR 1511. Asking that question may be helpful in identifying
true independent contractors. But it would be going too far down the road
to tidiness for this court to align the common law concept of vicarious
liability, developed for one set of reasons, with the statutory concept of F
worker, developed for a quite di›erent set of reasons.

Conclusion
30 I would allow this appeal and hold that the bank is not vicariously
liable for any wrongdoing of Dr Bates in the course of the medical
examinations he carried out for the bank. G
Appeal allowed.
JILL SUTHERLAND, Barrister

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