The central question in this appeal related to the scope of vicarious liability. The CA had to decide whether an employer could be held vicariously liable for assaults perpetrated by a doctor who carried out medical examinations and assessments on behalf of the employer.

The decision is particularly important considering a recent number of decisions on the issue. The employer in this case argued that ‘one clear test’ remains determinative of vicarious liability: that ‘the employer is not vicariously liable for the torts of his independent contractor.’

The CA rejected this narrow approach and found that the medical examination process was to be considered part of the bank's business activity.

In coming to this decision, the CA accepted that the correct approach was based on what it termed the ‘Cox/ Mohamud’ questions which emerge from two previous decisions. The questions focus on i) whether the relevant relationship is one of employment or "akin to employment"? and ii) if the tort was sufficiently closely connected with that employment or quasi employment? The CA rejected the submission that the doctor’s status as an independent contractor was a possible defence to the claim. The appeal was dismissed.

The CA noted that the law of vicarious liability has been ‘on the move’ in recent times, but this case brings a degree of stability. The decision clarifies that the ‘independent contractor’ defence is no longer recognised and that each case must be considered on its own facts. It also demonstrates the willingness of the courts to find vicarious liability outside of the traditional employer-employee relationship.

Businesses that have contracted work to individuals, such as the doctor here, should note that they can still face claims following the deliberate or negligent actions of an independent contractor. However, establishing whether an individual is an employee or a self-employed independent contractor will often be complex and ‘full of evidential pitfalls’. As in this case, this question will often be much more contentious than whether or not there was a sufficiently close connection between the employer and contractor.
http://www.bailii.org/ew/cases/EWCA/Civ/2018/1670.html