Vicarious liability of a bank for the acts of a contracted doctor
- Publication Type:
- Journal Article
- Journal of Professional Negligence, 2018, 34 pp. 46 - 46
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The long-standing dichotomy between employees and independent contractors in vicarious liability - never entirely without its difficulties in application, but nonetheless, a central tenet of vicarious liability for more than a century - has been eroded in the last five years. Confirmed in the mid-nineteenth century in Quarman v Burnett, 1 the delineation has endured despite regular criticism: an employer may be vicariously liable for acts of an employee, but not generally for the negligence or intentional wrongdoing of an independent contractor, aside from directly authorised acts.2 The first steps in dismantling the requirement for an employment relationship were in recognising that working relationships that did not fit the traditional analysis of employment could nonetheless give rise to vicarious liability. In Cox v Ministry of Justice (Cox),3 Lord Reed noted that "in recent years the courts have sought to explain more generally the basis on which vicarious liability can arise out of a relationship other than that of employer and employee'.4 Since 2012, a series of cases has recognised vicarious liability in particular working relationships that do not meet a traditional definition of employment, but which bear certain incidents (defined in Various Claimants v Catholic Child Welfare Society (CCWS) by Lord Phillips5) that could be regarded as "akin to employment' as found in that case between a priest and church, or as between a prisoner performing work duties in a prison and the Ministry of Justice responsible for the prison service (Cox). Various Claimants v Barclays Bank Plc (Barclays Bank) marks a significant step directly into the once out-of-bounds territory of vicarious liability for acts of independent contractors.6 In this case, the incidents or criteria for the requisite relationship developed in CCWS and Cox were applied to a situation that would otherwise have been traditionally viewed as one of an independent contractor and the court accepted that the requisite incidents were made out. It is difficult not to conclude that the wall around vicarious liability for independent contractors has been breached.
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