Simon Anderson discusses the case of Various Claimants v Barclays Bank PLC  EWHC 1929 (QB)Park Square Barristers
Can an employer be vicariously liable for sexual assaults perpetrated by an independent physician engaged to conduct health screening of employees? Yes, according to The Hon Mrs Justice Davies in Various Claimants v Barclays Bank PLC  EWHC 1929 (QB) in a judgment handed down on 26th July 2017. Simon Anderson considers its reasoning, and its wider implications for employers.
The trial was of a preliminary issue, expressed by the judge to be “whether the Defendant is vicariously liable for any assaults that any Claimant may prove to have been perpetrated by Dr Gordon Bates in the course of medical examinations carried out at the request of the Defendant either before or during their employment with the Defendant.”
The claim was brought by 126 claimants who sought damages against Barclays Bank for sexual assaults that took place over a 16-year period during which Dr Bates undertook medical examinations on its behalf. Successful applicants were offered employment subject to passing a medical examination. Each claimant was aged 16 at the date of the examination and believed it was compulsory to attend, if she did not do so no job would be offered. No claimant was offered a choice as to the doctor. The arrangements for the examination were made by the Bank. The claimant was required to attend at the date, time and place specified.
Davies J provided a carefully considered though possibly gratuitous legal analysis. All agreed that since the Supreme Court’s exploration of the subject in Cox v Ministry of Justice  UKSC 10 and Mohamud v WM Morrison Supermarkets plc  UKSC 11 determination of the issue as to whether or not vicarious liability exists in a particular case involves a two-stage test:
- Is the relevant relationship one of employment or “akin to employment”?
- If so, was the tort sufficiently closely connected with that employment or quasi employment?
Relevant to the determination of the first stage are the five policy criteria identified by Lord Reed in Cox at [20-23].
The claimants’ case was that the defendant was vicariously liable for the breach of duty of Dr Bates in that he was clearly carrying out the work of the Bank, and that there was a sufficiently close connection between them to be akin to employment. In advance of the examinations the Bank wrote to the claimants stating “As a first step we would like to make arrangements to have you medically examined by the Bank’s doctor ….” They placed their trust in Dr Bates in reliance upon the Bank’s name and reputation. Moreover, he was furthering the Bank’s interests, not the claimants’, especially because a medical examination was a condition of entry to the Bank’s pension fund. By engaging Dr Bates in the manner in which it did the Bank created a risk; there was no requirement for a chaperone, no option of the applicant’s own GP or a female doctor.
Predictably, the defendant’s case was that he was an independent contractor, and that as such any liability was his alone. He was not exclusively engaged by the Bank and the examinations took place at his home. His task was broadly similar to that carried out by independent doctors in a number of different contexts for example insurance, assessing fitness for travel, suitability for emigration and medico-legal purposes. His examination was not in any way the defendant’s business, which was banking. Finally, it would not be fair, just and reasonable to impose a duty on an innocent employer for the deliberate acts of the doctor when it could not have known of his abuse.
The analysis of Davies J pointed inexorably towards a finding of vicarious liability. As she observed “the law of vicarious liability had moved beyond the confines of a contract of service”.
Stage 1: Is the relevant relationship one of employment or “akin to employment”?
It was held that the claimants had no recourse against Dr Bates, his medical defence insurers would not indemnify for alleged sexual assaults. The only legal recourse they may have is to sue the Bank for the vicarious acts of its tortfeasor. The medical examination, assessment of a claimant and subsequent report of the same to the Bank by Dr Bates was performed for the benefit of the Bank and on its behalf. In providing a medical assessment and conclusion, namely that a claimant was physically suitable to be a member of its workforce, Dr Bates was acting for the benefit of the Bank and in so doing was an integral part of the business activity of the Bank. The claimants, many of whom were 15 or 16, saw the doctor alone in his room when, as part of the medical examination, they were asked to remove clothing. Hence the Bank created the risk of a sexual assault. The significance of control is more that the defendant can direct what the tortfeasor does, not how he does it. The control was of a higher level of prescription than might usually be found in the context of an examination required to be performed by a doctor. The control also manifested itself in directing the claimant to a particular doctor and giving the claimant no choice in the matter. Accordingly, the relevant criteria of stage 1 were met.
Stage 2: Was the tort sufficiently closely connected with that employment or quasi employment?
On the facts, Davies J found that the alleged sexual abuse was inextricably interwoven with the carrying out by the doctor of his duties pursuant to his engagement by the Bank. The alleged tort was so closely connected with that employment or engagement as to satisfy the second stage.
Davies J’s reasoning seemed inevitable following the Supreme Court’s line of reasoning in Mohamud and Cox. The law of vicarious liability is on the move, and however superficially iniquitous it may seem to impose liability on an innocent employer for the activities of an independent contractor, greater care must be taken to scrutinise the conduct of service providers who are directed to act in furtherance of a company’s business.
The inescapable truth in this instance was that the Bank had created the circumstances in which its doctor could act with virtual impunity. The most simple and effective preventative measures that it could have adopted would have been to employ a female doctor to examine female employees, or ensure that male doctors were supervised by a female nurse at all times. It is doubtful that such facts would arise in a contemporary setting, or at least one would prefer to think so. Nevertheless, this judgment reinforces the point that employers should not be complacent about the potential for abhorrent behaviour towards their employees on the part of independent contractors. Likewise, the possibility of misconduct as between contractors acting under their direction.
Simon Anderson is a member of the Park Square Barristers personal injury team and specialises in employer’s liability claims.
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