Supreme Court: employer not vicariously liable for doctor’s actions when carrying out medical tests on its behalf

The Supreme Court has ruled that Barclays was not vicariously liable for a self-employed medical practitioner’s assaults conducted during medical examinations on Barclays’ behalf (Barclays Bank plc v Various Claimants).

The Court overturned the Court of Appeal and High Court rulings, which found against Barclays.

Group action against Barclays for acts of medical practitioner

Barclays required job applicants to have pre-employment medical examinations and referred them to a self-employed medical practitioner (GB).

GB was found to have sexually assaulted a number of women during medical examinations conducted at his home. A 2013 police investigation found enough evidence to criminally prosecute him, had he still been alive.

126 women issued claims against Barclays. They alleged GB had sexually assaulted them by carrying out inappropriate intimate examinations during the appointments arranged by Barclays.

High Court and Court of Appeal find vicarious liability

The High Court ruled Barclays was vicariously liable for GB’s assaults carried out during the medical examinations because his relationship with Barclays was ‘akin to employment’.

The Court of Appeal agreed with the High Court and Barclays appealed to the Supreme Court.

Supreme Court overturns decision

The Supreme Court overturned the earlier decisions.

It focussed on the relationship between Barclays and GB. It ruled the relationship did not impose vicarious liability on Barclays, as he was nothing close to an employee. Instead, GB was in business on his own account as a medical practitioner. He had a portfolio of patients and clients, one of whom was Barclays. Barclays formed a relatively minor part of his practice. He was free to refuse any examinations and was not paid a retainer or required to examine a certain number of referrals.

Comment

This decision continues to restrict the scope of vicarious liability to relationships analogous to employment. Vicarious liability will depend on the specific facts and how closely the relationship resembles employment. However, there is no vicarious liability for the acts of a self-employed person who is genuinely "in business on their own account".  Where a contracting third-party has autonomy on which jobs to accept and a range of clients while conducting their own business, there is less likely to be vicarious liability.