Background

The defendant in the case, Barclays Bank, needs no introduction. Between 1968 and 1984 Barclays used the services of Dr Gordon Bates who carried out medical examinations of prospective candidates for employment by the bank. Following Dr Bates’ death in 2009, a number of women alleged that they had been sexually assaulted by the doctor during their medical examinations. Many of the claimants had been teenagers at the time of the alleged assaults.

The claims

The claimants were 126 victims of Dr Bates’ alleged sexual assaults who were precluded from bringing civil claims against the doctor due to his death and the distribution of his estate. Their only course of redress was to claim against Barclays under the concept of vicarious liability. The question for the High Court to decide was whether Barclays, as the hirer of Dr Bates, should be vicariously liable for his alleged sexual assaults.

The general rule is that the hirer of an independent contractor cannot be vicariously liable for their actions. However, there is an exception to this rule if there is sufficient connection between the relationship of the hirer and contractor and the actions committed by the contractor. The High Court decided that the question of whether Barclays was vicariously liable for the doctor’s actions should be considered as a preliminary issue before proceeding to consider the merits of the claims.

High Court decision

The first question for the High Court to consider was whether the relationship between Barclays and Dr Bates was one of employment or “akin to employment”. This required analysis of five factors, the most important of which were (1) whether the doctor’s actions were the result of activity he had taken on behalf of Barclays, (2) whether that activity related to the business activity of Barclays, and (3) whether Barclays created the risk of the assaults perpetrated by Dr Bates by employing him.

In scrutinising the relationship between Barclays and Dr Bates, the High Court noted that the applicants had not had any choice as to which doctor carried out the medical examination which had been at the bank’s sole discretion. Barclays had also instructed the doctor as to what type of medical examination it required, including the need for a chest examination. The High Court decided that by providing a pre-employment health check Dr Bates had acted for the benefit of Barclays and by doing so his activities had been an integral part of the business activity of the bank. The High Court concluded that the requirements for the first stage of the vicarious liability test were met.

The second issue to be decided was whether there had been a sufficiently close connection between Dr Bates’ actions and the work he had been hired to do. The High Court decided that the alleged sexual abuse had been inextricably woven with the tasks the bank had hired the doctor to carry out.

“The task assigned to Dr Bates placed him in a position to deal with the claimants. On the alleged facts he abused that position. It is difficult to see how it can sensibly be argued that his acts did not fall within the activity tasked to him.” High Court of Justice

Barclays was therefore found to be vicariously liable for any alleged sexual assaults that are subsequently proven to have been carried out by Dr Bates.

Comment

The case, albeit a preliminary ruling, is an interesting look at vicarious liability in a relationship “akin to employment”. The focus was on the nature of the relationship between an employer and an independent contractor. Although the doctor had carried out work for others and organised his professional affairs, this did not prevent a finding that he was under Barclays’ control. From a public policy perspective, one cannot underestimate the significance of Barclays being the claimants’ last resort to the court’s decision that it was fair, just and reasonable to find the employer liable in this situation.

Photograph: “Doctor money” by Myriams Fotos used under Creative Commons Attribution 2.0 license