Various Claimants v Barclays Bank Plc

Vicarious liability may arise where the tortfeasor is not an employee but has a relationship with the defendant that is akin to employment. The court must first assess the relationship by reference to the defendant’s business activities, the tortfeasor’s role, the risk created and the degree of control. It must then ask whether the tort is sufficiently closely connected with that relationship. A medical professional’s independence, use of his own premises and work for other organisations do not, by themselves, prevent liability. Deliberate sexual assaults may be closely connected with the assigned activity where the activity places the tortfeasor in physical proximity to, and a position of authority over, the victims.

This was a preliminary issue in group litigation brought by 126 claimants against Barclays Bank Plc. The claimants alleged that Dr Gordon Bates sexually assaulted them during medical examinations arranged by the Bank between 1968 and 1984. Most were prospective employees and some were existing employees. The Bank directed them to attend Dr Bates at his home, required medical clearance and paid him a fee for each examination.

The issue was whether the Bank was vicariously liable for assaults which the claimants might prove had been committed during examinations carried out at the Bank’s request. The central question was whether Dr Bates’s relationship with the Bank was one of employment or akin to employment and, if so, whether the alleged assaults were sufficiently closely connected with that relationship.

1. Applicable test. Vicarious liability involved two stages: whether the relationship was one of employment or akin to employment, and whether the tort was sufficiently closely connected with that relationship. The first stage was informed by the five criteria identified in Catholic Child Welfare Society and Others v Various Claimants [2012] UKSC 56 and Cox v Ministry of Justice [2016] UKSC 10. The relative ability to compensate and the degree of control were less significant than whether the activity was undertaken for the defendant, formed part of its business and created the relevant risk.
2. The fact that Dr Bates was self-employed, worked for other organisations, was paid per examination and used his own home did not prevent a relationship akin to employment. The Bank selected him, arranged the appointments, directed applicants to attend, prescribed aspects of the examination and required reports in its own format. Medical assessment of prospective and existing staff was undertaken for the Bank’s benefit and formed an integral part of its workforce and business activity.
3. The Bank created the relevant risk. Young applicants were directed to attend an unfamiliar doctor alone, at his home, for a physical examination involving removal of clothing, without a chaperone or choice of doctor.
4. The alleged assaults were sufficiently closely connected with the assigned activity. They occurred during the very examinations Dr Bates had been engaged to perform. The examination placed him in physical proximity to the claimants and in a position of authority. The assaults were therefore inextricably interwoven with the performance of his duties.
5. Following Lister v Hesley Hall Ltd [2002] 1 AC 215, deliberate criminal acts could attract vicarious liability where the requisite connection existed. Applying the two-stage test, the court held that the Bank was vicariously liable for any assaults the claimants proved had been perpetrated by Dr Bates during examinations carried out at the Bank’s request, before or during their employment.

First-instance decision. The judgment determined the preliminary issue ordered in the group litigation.