Dear Phillip;
Thanks, very interesting. It is a further extension of “akin to employment”. While the HCA hasn’t revisited this issue explicitly since the 2012
Various Claimants v CCWS UKSC decision, there is a somewhat similar older case involving someone who was arguably playing a key role in a business while being an independent contractor,
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161; (2006) 227 ALR 46; (2006) 80 ALJR 900
http://www.austlii.edu.au/au/cases/cth/HCA/2006/19.html where the majority of the Court (over a dissent from Kirby J) rejected the extension of vicarious liability to independent contractors.
However, it is well established that the Bank had a non-delegable duty to its employees. It was “entrusting them” to the authority of the doctor. If the court were prepared to hold that a non-delegable duty can be used to attach liability
for an intentional tort, then this case might have been resolved along those lines. I suppose that issue is still up in the air following
Armes which I see
https://www.supremecourt.uk/cases/uksc-2016-0004.html is still awaiting a decision from the UKSC.
Regards
Neil
NEIL FOSTER
Associate Professor
Newcastle Law School
Faculty of Business and Law
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From: Phillip Morgan <phillip.morgan@york.ac.uk>
Date: Sunday, 6 August 2017 at 4:42 AM
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Liability for Independent Contractors
Dear List Members,
Whilst it is only a first instance decision, list members may be interested to know that the English High Court
in Various Claimants v Barclays Bank (http://www.bailii.org/ew/cases/EWHC/QB/2017/1929.html) has held a defendant bank vicariously liable for the acts
of an independent contractor doctor. The doctor was contracted to provide medicals (in his own home) as part of the bank’s recruitment process.
Whilst distinguishable on the ground that the doctor wrote reports on the bank’s stationary, if this case is followed,
particularly the approach towards the application of the test at [45], many independent contractors will now satisfy stage 1 of vicarious liability.
Kind regards,
_______________________
Phillip Morgan,
Senior Lecturer in Law,
York Law School,
The University of York,
Freboys Lane,
York,
YO10 5GD,
United Kingdom,
