Dear All,

To add to what appears to be an endless stream of appellate decisions on vicarious liability this year is Kafagi v JBW Group Ltd [2018] EWCA Civ 11  http://www.bailii.org/ew/cases/EWCA/Civ/2018/1157.html,   which deals with the issue of vicarious liability for independent contractors.  In this case the Court of Appeal refused to use the category of "akin to employment" to extend vicarious liability to an independent contractor bailiff.

The Appellant was allegedly assaulted by a certified bailiff (B), who had been contracted to collect council tax debts for a judicial services company (the Respondent), who was working on behalf of the London Borough of Wandsworth.  R had in turn subcontracted the collection to the alleged tortfeaser, B.

B could turn down work that was offered by the Respondent, and was at liberty to conduct the collection of a debt in whatever legal manner he saw fit, without control from the Respondent.  He was able to share the work with others, and in the case at hand he took along another person who also allegedly assaulted the Appellant.  B maintained his own indemnity insurance (although what use it is in relation to his own intentional tort is questionable), and like every certified bailiff, had provided a personal bond of £10,000 into court.   He also worked for other clients, and the court found that R did not control him.

In holding that vicarious liability was not present, the Court challenges the expansion of vicarious liability, and the recent attempts to establish vicarious liability for true independent contractors (Cf Various Claimants v Barclays Bank Plc [2017] EWHC 1929 (QB) which found vicarious liability for an independent contractor, although this case is on appeal to the Court of Appeal http://www.bailii.org/ew/cases/EWHC/QB/2017/1929.html).  It also represents a potential roadblock for attempts to establish vicarious liability in a Gig Economy setting, since Gig Economy workers are often free to turn down work, are advised to obtain their own policies of insurance, and some of the major operators have recently introduced the ability of the contractor to substitute another person and/or share the work with others.  However, the strength of the present authority is perhaps somewhat marred by the appellant being unrepresented, and having poor legal representation during the first County Court appeal to the Recorder (the then advocate seems not to have recognised the difference between stage 1 and 2, of vicarious liability, and the cases cited did not assist the Court).  As such the Court of Appeal did not appear to be aware of the Barclays decision which would have greatly assisted the Appellant.

Despite this obvious flaw, which may mean that the Court of Appeal in the upcoming Barclays case can easily sidestep the authority, the case does represent a reassertion of the traditional doctrine that there is no vicarious liability for (true) independent contractors – a much needed restatement of orthodoxy in an increasingly uncertain vicarious liability world.

Best wishes,

Phillip

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