Yesterday, the High Court handed down its ruling in Various Claimants -v- Barclays Bank plc. (Dr Bates (deceased) and Barclays Bank Group litigation) [2017] EWHC 1929 (QB) in which we acted on behalf of the defendant. The judgment relates to a preliminary issue trial of vicarious liability.

The claimants persuaded the court that Barclays Bank (the ‘bank’) should be held vicariously liable for alleged sexual assaults committed by a doctor during the course of pre-employment medical examinations.

In recent years, the principles of vicarious liability have been considered by courts at all levels in the UK, particularly in the context of sexual abuse of children.

In this particular case, the question for the High Court to consider was whether the bank could be held vicariously liable for the acts of a doctor who the bank submitted was an independent contractor. The court found against the bank on both stages of the current test for vicarious liability and in doing so, effectively sidestepped the independent contractor defence in the context of vicarious liability claims which currently exists in the law. This represents a significant extension to the law and we would argue a most unwelcome and worrying development.

Background

This is a claim for damages pursued by a group presently consisting of 132 claimants who allege that they were subjected to a sexual assault during pre-employment medical examinations performed by Dr Gordon Bates in Newcastle between 1968 and 1984. The majority of the claimants are female. Many of the female claimants were approximately 16 years old at the time of the examinations and had applied for a job at the bank. As a condition of their offer of employment they had to pass a medical examination.

The arrangements for Dr Bates to see each of the claimants were made between the bank and Dr Bates. Dr Bates was described to the claimants as the ‘bank’s doctor’. The medical examinations were performed in a specially converted surgery room in Dr Bates’ own home. The claimants were provided with directions to this location by the bank and many of them attended with their parents although the examination itself was conducted with each claimant and Dr Bates alone in the room.

The bank provided Dr Bates with a proforma to fill out for each applicant. The form had the bank logo at the top and asked for answers to specific questions including whether Dr Bates thought that the applicant was medically suitable for the role and also whether he would recommend the applicant for life assurance at ordinary rates.

Dr Bates was paid a set fee for each medical examination. As well as performing medical examinations for the bank he also conducted similar medical examinations for those wishing to emigrate to Australia and Canada and for Municipal Mutual Insurance. He also worked a substantial portion of his week at local hospitals on a contractual basis.

Dr Bates was not the only doctor used by the bank in the Newcastle area. At least two other doctors were also used from time to time.

Dr Bates’ HMRC records showed that apart from his salaried work at local hospitals he made self-employed tax contributions in respect of his private medical examination work.

It is not known how the arrangements between the bank and Dr Bates began. The bank did however have similar arrangements with local doctors across the country.

Dr Bates died in 2009 and his estate had already been distributed prior to these claims being raised. In 2013 a former member of the bank’s staff reported to police an allegation that she had suffered a sexual assault at the hands of Dr Bates and more individuals came forward. The police were unable to take the matter further however they did establish that in some cases, had Dr Bates been alive, they would have pursued charges against Dr Bates.

The claimants argued that the two-stage test for vicarious liability was satisfied. The bank argued that this was not so, Dr Bates was an independent contractor and as such the law was clear that the bank could not be held liable for his wrongful acts. If the law of vicarious liability was on the move, then the bank argued that it had not yet moved this far.

Decision

The bank was vicariously liable for the alleged wrongful acts of Dr Bates

The court applied the two-stage test for vicarious liability from Catholic Child Welfare Society and Others -v- Various Claimants [2012] UKSC 56 (‘Catholic Child Welfare Society’) and asked:

  1. Whether the relationship between the bank and Dr Bates was such that it is capable of giving rise to vicarious liability; an
  2. What is the connection that links the relationship between the bank and Dr Bates and the act or omission of Dr Bates?

Stage 1 – is the relationship such that it is capable of giving rise to vicarious liability?

The court applied Lord Philips’ five relevant criteria from Catholic Child Welfare Society and as later refined by Lord Reed in the Supreme Court’s decision in Cox -v- Ministry of Justice [2016] UKSC 10 (‘Cox’) and found that:

  1. The court considered that there was no possible recourse against Dr Bates himself as a) his estate has long since been distributed and b) even if Dr Bates had professional indemnity insurance this would not have covered intentional sexual assaults. The bank therefore more likely to have the means to compensate the claimants.
  2. The claimants had no choice as to which doctor they saw and where. It was made clear to them that this examination was a necessary condition of any offer of employment. The examinations were purely for the benefit of the bank and the examination proforma was headed with the bank’s logo. The court found that the assaults were committed as a result of activity being undertaken on behalf of the bank.
  3. The court found that Dr Bates’ activities for the bank were a part of the bank’s business activity on the basis that the reason for the medical examinations was to ensure that the bank had a healthy workforce. The bank’s workforce was integral to its business activity. There was no health benefit to the claimants themselves.
  4. The court found that the bank had created a risk of the alleged assaults committed by Dr Bates by engaging him to carry out this work on their behalf. The primary reason for this was the fact that the applicants had no choice over which doctor they saw and the nature of the examination itself. The applicants were young girls being examined by Dr Bates at his home alone. This, along with the specific matters which the Bank required Dr Bates to address during the medical examinations was found to have created a risk of sexual assault in these circumstances.
  5. With regards to the level of control which the bank had over Dr Bates, the court found that it made no difference that Dr Bates had other employment and also that he organised his own professional life. Furthermore, the fact that the examinations did not take place on the bank’s premises did not mean that the bank did not have any control over Dr Bates’ work. The bank had been ‘directional’ to Dr Bates in identifying the questions which he had to ask and also the physical examination which needed to be carried out. The court found that this level of prescription within the form itself was unusual in the context of examinations to be performed by a doctor and therefore this criterion was satisfied.

It was acknowledged by the court that, as per Cox criteria two to four were the most important with one and five playing a lesser significance.

The court acknowledged that the development in the law of vicarious liability had not affected the legal concept of the independent contractor. However, it found that it was necessary to examine the relationship between Dr Bates and the bank in the context of Ward LJ’s comments in E -v- English Province of our Lady of Charity [2012] EWCA Civ 938 (‘E’) that the law of vicarious liability had moved beyond the confines of a contract of service’.

Stage 2 – what is the connection between the abuse and the relationship between the bank and Dr Bates?

The court had little difficulty in concluding that the assaults were closely connected to the relationship between the bank and Dr Bates. The assaults were committed during the course of a medical examination which Dr Bates had been instructed to carry out. This placed Dr Bates in a position to deal with the claimants and on the alleged facts, he abused this position. Dr Bates had greater authority in the eyes of the claimants due to the fact that he was performing an examination at the behest of the claimants’ prospective or present employer.

Thus, the court found that the abuse was closely connected to Dr Bates’ activities for the bank and satisfied stage two of the test.

The fair, just and reasonable test

The final test for the court to apply in determining vicarious liability in accordance with Catholic Welfare Society and Cox was to ask itself whether imposing vicarious liability in these circumstances is fair, just and reasonable.

The court found that it was fair, just and reasonable to impose vicarious liability upon the bank. If it did not do so, it would remove from the claimants their sole legal recourse.

Once again, this judgment sees the courts extending the scope of vicarious liability as a matter of public policy.

In this decision, the court has effectively sidestepped the significance of the independent contractor defence to vicarious liability. Although the court acknowledged that this concept was very much alive, it failed to compare and contrast the requirements of an independent contractor relationship with one in which an employer can be vicariously liable.

With regards to the court’s application of the test for vicarious liability, it is of great concern that the court placed so much weight upon the instructions which were given to Dr Bates by the bank. It cannot surely be the case that if the bank had not provided any detailed instructions that the bank would not have been held vicariously liable. Compare and contrast this with the instructions which are routinely provided to medico-legal experts in civil litigation.

Perhaps the most worrying aspect of the court’s determination is the application of the fair, just and reasonable test. The court found that not only was the bank able to pay the claims but also that it was the sole method of recourse for the claimants. The effect of the court’s decision was to say that this one of the most important factors in a finding of vicarious liability in this matter, if not the most important factor. Significantly, the court chose to ignore the bank’s argument that if these claims had been presented prior to Dr Bates’ death then he himself would have had the means to pay them. The bank is now penalised for the claimants’ 40-year delay in coming forward. Surely this cannot be fair, just and reasonable in the circumstances.

The implications of this decision are extremely worrying and far-reaching. This decision means that employers will now be held vicariously liable in a whole range of situations which they had not even considered possible previously.

The defence team is currently considering its position.