Case alert – Various Claimants v Barclays Bank Plc  EWHC 1929 (QB)
The High Court found Barclays Bank vicariously liable for sexual assaults conducted by Dr Bates during employees' pre-employment medical examinations
In this group litigation, 126 Claimants sought damages against Barclays Bank in respect of alleged sexual assaults perpetrated by Dr Gordon Bates during pre-employment medical examinations.
The preliminary issue for the High Court was whether Barclays Bank was vicariously liable for the sexual assaults.
The Bank denied Dr Bates was an employee; he was self-employed and engaged by the Bank as an independent contractor. Dr Bates charged a set fee for each medical examination and would invoice the Bank accordingly. Furthermore, during the relevant time period, Dr Bates was also performing similar services for other organisations.
The Court agreed the determination of the preliminary issue involves a two stage test as recently set out in the two cases of Cox and Mohamud:
First stage: Is the relevant relationship one of employment or "akin to employment"?
The court concluded the five policy criteria originally identified by Lord Phillips in Catholic Child Welfare Society was satisfied and therefore there was a relevant relationship of employment between Dr Bates and the Defendant.
- The only legal recourse for the Claimants was to sue the Bank. Dr Bates died 8 years ago and his estate has been distributed. The Bank and its insurers have the means to meet such claims.
- The medical examination and subsequent report was conducted for the benefit of the Bank and on its behalf as:
- A medical examination was required in order to secure employment;
- Dr Bates conducted all the medical examinations for the Bank and was therefore an integral part of the business. No Claimant was offered a choice of the doctor;
- The Bank arranged the appointments with Dr Bates;
- The Bank paid for the examinations; and
- The Claimants had no reason to be examined by Dr Bates other than for the purposes of an offer of employment from the Bank.
- The medical examination was performed to ensure a future employee of the Bank was physically suitable for the work which they were being employed to do.In providing the Bank with a medical assessment, Dr Bates was an integral part of the Bank's business.
- The Bank did create a risk of the alleged tort as they required young girls, many of whom were 15 or 16, to attend the home of Dr Bates for a medical examination. The Bank directed Dr Bates to perform a physical examination which included a chest measurement.
- Dr Bates was under the control of the Defendant. The Defendant decided what questions Dr Bates was to ask the Claimants and what physical examinations were to be carried out. The Defendant chose Dr Bates and did not give the Claimants the choice of another doctor.
Second stage: Was the tort sufficiently closely connected with that employment or quasi employment?
Dr Bates' conduct fell within the remit of the tasks he was instructed to undertake by the Defendant. The sexual assaults occurred during a medical examination requested by the Defendant and Dr Bates abused his position. Mrs Justice Davies DBE referred to the words of Lord Phillips in Catholic Child Welfare Society at paragraph 84:
"…the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them…"
What can we learn?
- The case is an example of the vicarious liability principles recently set out in Cox and Mohamud being used in a sexual abuse context. The two stage test must take centre stage when considering whether a defendant is vicariously liable for another's actions.
- It is only more recently that society (generally) has started to appreciate the true magnitude of the problem of abuse. It may be that the problem of (historic) sexual abuse is systemic in certain organisations, but claims may not have emerged because abuse victims to date have been reluctant to speak out.
- The law is moving in one direction. Courts are increasingly ready to impose vicarious liability upon organisations, particularly in circumstances where a sufficient degree of control is being exercised over the abused, where their relationship is akin to employment and where the abuser has used that relationship (in part for the benefit of the defendant organisation) to go on to abuse a victim (or victims)
- As the number of these claims increases, so the number and types of defendants will similarly increase. Provided that the two-stage test in respect of vicarious liability is met, there is no reason to limit the ‘type’ of organisation which can be pursued for abuse committed by one of its number. Claims against commercial institutions, voluntary organisations, sports clubs and non-conventional religious organisations are all likely to follow.