July 27, 2017

Application of vicarious liability in sexual abuse case

In a preliminary hearing, the High Court found Barclays Bank vicariously liable for the conduct of Dr Bates during employees' pre-employment medical examinations during his period of independent consultancy between 1968 – 84.

The Fact

In this group litigation, 126 Claimants are seeking damages against Barclays Bank in respect of alleged sexual assaults perpetrated by Dr Gordon Bates during pre-employment medical examinations.

Mrs Justice Davies considered the preliminary issue of whether Barclays Bank was vicariously liable for the sexual assaults allegedly perpetrated by Dr Bates.

The Bank denied Dr Bates was an employee on the basis 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 Decision

The Court agreed the determination of the preliminary issue involves a two stage test as recently explored and further reiterated 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) were satisfied and therefore there was a relevant relationship of employment between Dr Bates and the Bank.

  1. The only legal recourse open for the Claimants is to sue the Defendant/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.
  2. 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 doctors;
    • 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.
  3. 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.
  4. 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.
  5. 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?

The Court found that 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?

  • Whilst this remains a first instance decision on a preliminary issue the decision is a further example of the ongoing appetite of the judiciary to extend the application of the vicarious liability principles recently set out in Cox and Mohamud in a sexual abuse context. The two stage test must now take centre stage when considering whether a defendant is to be found vicariously liable for another's actions in cases of this nature.
  • This is a "non-traditional" vicarious liability case where, in effect, the Court has found that an independent contractor can be treated as an employee or quasi employee. In this case the Defendant was the only viable paymaster and this is likely to have been a consideration.
  • This decision may result in increased interest from claimants who were previously prevented from pursuing a cause of action. If this judgment stands then the scope of abuse claims may shift and likely will result in an increased exposure for insurers should claims be pursued against "non-traditional" historic abuse defendants, including commercial institutions, voluntary organisations, sports clubs and non-conventional religious organisations.
  • Despite the evolving ambit of vicarious liability in historic abuse cases such claims can still be defendable; limitation and causation should always be thoroughly investigated and are useful weapons in a defendant's armoury.