458 The Cambridge Law Journal [2018]
VICARIOUS LIABILITY FOR INDEPENDENT CONTRACTORS
THE common law has long recognised that people who engage independ-
ent contractors will not ordinarily be liable for the wrongdoing of those
contractors, outside a closely guarded class of exceptional relationships
in which the principal bears a personal liability for their negligent conduct.
Selection of a properly qualified and competent contractor will ordinarily
suffice to discharge any primary duty of care to victims of the contractor’s
torts imposed on the principal. Vicarious liability traditionally required
finding an employment relationship between the principal and the wrong-
doer. However the scope of vicarious liability has recently been expanded.
In a quartet of cases (Catholic Child Welfare Society v Various Claimants
[2012] UKSC 56, [2003] 2 A.C. 1 (noted J. Bell [2013] C.L.J. 17)); Cox v
Ministry of Justice [2016] UKSC 10, [2016] A.C. 660; Mohamud v WM
Morrison Supermarkets plc [2016] UKSC 11, [2016] A.C. 677; Armes v
Nottinghamshire County Council [2017] UKSC 60, [2018] A.C. 355
(noted S. Deakin [2018] C.L.J. 15)), the Supreme Court recognised that vic-
arious liability may also be imposed in respect of the acts of persons who
are in a position “akin to employment”.
The “akin to employment” test was first recognised in what may be
described as atypical working relationships, such as those of religious person-
nel, and prison workers, who were neither employees nor independent con-
tractors as traditionally understood. But the test has come to be applied as a
general test for the imposition of vicarious liability outside relationships of
employment, and uncertainty has emerged as to the reach of the test to trad-
itionally understood independent contractors. The issue of the test’s reach has
emerged starkly from the decision of the Court of Appeal in Barclays Bank
plc v Various Claimants [2018] EWCA Civ 1670, in which the bank was
held vicariously liable for the wrongdoing of a doctor who, by any traditional
test, was as independent a contractor as one might find. The implications of
the application of the “akin to employment” test in this way to ordinary com-
mercial arrangements with contractors now require scrutiny.
In Barclays Bank, 126 claimants sought damages from the bank, alleging
that between 1968 and 1984 they had each been sexually assaulted by a
medical practitioner to whom they had been sent by the bank for the pur-
poses of a pre-employment medical examination. The doctor performed the
examinations at his home, in a room alone with him. The doctor completed
pro forma a medical examination form headed with the bank’s logo. The
doctor was paid a set fee per examination for which he invoiced the
bank. The bank paid these invoices and provided no other wage or
benefit to the doctor, who also worked for other organisations, as well as
for two local hospitals.
At first instance, Mrs. Justice Nicola Davies considered that the relevant
approach was to ask (1) whether the case was one of employment or “akin
, C.L.J. Case and Comment 459
to employment” and if so, (2) was the tort sufficiently connected to the
employment or quasi-employment. The judge applied Lord Phillips’ five
criteria from Catholic Child Welfare to determining whether the doctor
was in a position that was akin to employment, and then found that the
alleged abuse was relevantly closely connected with the engagement as
to satisfy the stage (2) inquiry. The bank was found vicariously liable.
In the Court of Appeal, Irwin L.J. (with whom McCombe L.J. and Sir
Brian Leveson P. agreed) noted that the bank had denied that the doctor
was an employee or akin to an employee, and argued that he was self-
employed and engaged as an independent contractor. He observed further
that none of the previous Supreme Court cases had considered circum-
stances where the alleged tortfeasor was “an obvious ‘independent contrac-
tor’” and accepted at [43] that none of those cases had been “a decision
which squarely addresses facts such as these”. However, at [44] Irwin
L.J. accepted the submission for the respondents on the appeal that “the
law now requires answers to the specified questions laid down in Cox
and Mohamud, and affirmed in Armes, rather than an answer to the question
was the alleged tortfeasor an independent contractor”. Furthermore, he
observed at [45] that, in “adopting the approach of the Supreme Court,
there will indeed be cases of independent contractors where vicarious liabil-
ity will be established”.
Irwin L.J. found no error in the trial judge’s approach. It is telling that in
the Court of Appeal, as at trial, the satisfaction of Lord Phillips’ criteria
sealed the answer to the stage (1) inquiry. It did not address as a separate,
or limiting, factor whether the doctor was engaged in an independent busi-
ness activity as an independent contractor. Indeed, Irwin L.J. held expressly
at [44] that the “question of definition appears to me no longer to be the
test. If the Supreme Court had intended it to survive as such, it seems
unlikely, given that formerly this was a decisive test, that the Court
would have failed to say so”.
The decision in Barclays Bank serves as a warning of the risk of Lord
Phillips’ criteria being applied as if “they were the words of statute, setting
the rules in stone”, as Lady Hale cautioned against in Woodland v Essex
County Council [2013] UKSC 66, [2014] 1 A.C. 537, at [28] (in the context
of the non-delegable duty of care); and per Lord Reed in Cox, at [42]. This
is important because the substance of the three criteria which Lord Reed
identified as the most critical – that the tort will have been committed as
a result of activity being undertaken by the employee on behalf of the
employer; that the employee’s activity is likely to be part of the business
activity of the employer; and that the employer, by employing the employee
to carry on the activity, will have created the risk of the tort committed by
the employee – if applied without qualification, are capable of describing
work performed by independent contractors. In the High Court of
VICARIOUS LIABILITY FOR INDEPENDENT CONTRACTORS
THE common law has long recognised that people who engage independ-
ent contractors will not ordinarily be liable for the wrongdoing of those
contractors, outside a closely guarded class of exceptional relationships
in which the principal bears a personal liability for their negligent conduct.
Selection of a properly qualified and competent contractor will ordinarily
suffice to discharge any primary duty of care to victims of the contractor’s
torts imposed on the principal. Vicarious liability traditionally required
finding an employment relationship between the principal and the wrong-
doer. However the scope of vicarious liability has recently been expanded.
In a quartet of cases (Catholic Child Welfare Society v Various Claimants
[2012] UKSC 56, [2003] 2 A.C. 1 (noted J. Bell [2013] C.L.J. 17)); Cox v
Ministry of Justice [2016] UKSC 10, [2016] A.C. 660; Mohamud v WM
Morrison Supermarkets plc [2016] UKSC 11, [2016] A.C. 677; Armes v
Nottinghamshire County Council [2017] UKSC 60, [2018] A.C. 355
(noted S. Deakin [2018] C.L.J. 15)), the Supreme Court recognised that vic-
arious liability may also be imposed in respect of the acts of persons who
are in a position “akin to employment”.
The “akin to employment” test was first recognised in what may be
described as atypical working relationships, such as those of religious person-
nel, and prison workers, who were neither employees nor independent con-
tractors as traditionally understood. But the test has come to be applied as a
general test for the imposition of vicarious liability outside relationships of
employment, and uncertainty has emerged as to the reach of the test to trad-
itionally understood independent contractors. The issue of the test’s reach has
emerged starkly from the decision of the Court of Appeal in Barclays Bank
plc v Various Claimants [2018] EWCA Civ 1670, in which the bank was
held vicariously liable for the wrongdoing of a doctor who, by any traditional
test, was as independent a contractor as one might find. The implications of
the application of the “akin to employment” test in this way to ordinary com-
mercial arrangements with contractors now require scrutiny.
In Barclays Bank, 126 claimants sought damages from the bank, alleging
that between 1968 and 1984 they had each been sexually assaulted by a
medical practitioner to whom they had been sent by the bank for the pur-
poses of a pre-employment medical examination. The doctor performed the
examinations at his home, in a room alone with him. The doctor completed
pro forma a medical examination form headed with the bank’s logo. The
doctor was paid a set fee per examination for which he invoiced the
bank. The bank paid these invoices and provided no other wage or
benefit to the doctor, who also worked for other organisations, as well as
for two local hospitals.
At first instance, Mrs. Justice Nicola Davies considered that the relevant
approach was to ask (1) whether the case was one of employment or “akin
, C.L.J. Case and Comment 459
to employment” and if so, (2) was the tort sufficiently connected to the
employment or quasi-employment. The judge applied Lord Phillips’ five
criteria from Catholic Child Welfare to determining whether the doctor
was in a position that was akin to employment, and then found that the
alleged abuse was relevantly closely connected with the engagement as
to satisfy the stage (2) inquiry. The bank was found vicariously liable.
In the Court of Appeal, Irwin L.J. (with whom McCombe L.J. and Sir
Brian Leveson P. agreed) noted that the bank had denied that the doctor
was an employee or akin to an employee, and argued that he was self-
employed and engaged as an independent contractor. He observed further
that none of the previous Supreme Court cases had considered circum-
stances where the alleged tortfeasor was “an obvious ‘independent contrac-
tor’” and accepted at [43] that none of those cases had been “a decision
which squarely addresses facts such as these”. However, at [44] Irwin
L.J. accepted the submission for the respondents on the appeal that “the
law now requires answers to the specified questions laid down in Cox
and Mohamud, and affirmed in Armes, rather than an answer to the question
was the alleged tortfeasor an independent contractor”. Furthermore, he
observed at [45] that, in “adopting the approach of the Supreme Court,
there will indeed be cases of independent contractors where vicarious liabil-
ity will be established”.
Irwin L.J. found no error in the trial judge’s approach. It is telling that in
the Court of Appeal, as at trial, the satisfaction of Lord Phillips’ criteria
sealed the answer to the stage (1) inquiry. It did not address as a separate,
or limiting, factor whether the doctor was engaged in an independent busi-
ness activity as an independent contractor. Indeed, Irwin L.J. held expressly
at [44] that the “question of definition appears to me no longer to be the
test. If the Supreme Court had intended it to survive as such, it seems
unlikely, given that formerly this was a decisive test, that the Court
would have failed to say so”.
The decision in Barclays Bank serves as a warning of the risk of Lord
Phillips’ criteria being applied as if “they were the words of statute, setting
the rules in stone”, as Lady Hale cautioned against in Woodland v Essex
County Council [2013] UKSC 66, [2014] 1 A.C. 537, at [28] (in the context
of the non-delegable duty of care); and per Lord Reed in Cox, at [42]. This
is important because the substance of the three criteria which Lord Reed
identified as the most critical – that the tort will have been committed as
a result of activity being undertaken by the employee on behalf of the
employer; that the employee’s activity is likely to be part of the business
activity of the employer; and that the employer, by employing the employee
to carry on the activity, will have created the risk of the tort committed by
the employee – if applied without qualification, are capable of describing
work performed by independent contractors. In the High Court of
