Barclays Bank plc (Appellant) v Various Claimants - (01 Apr 2020)

Employer of an independent contractor is not liable for negligence or other torts committed by contractor in the course of execution of work

Tort

In present appeal, the Supreme Court is asked to decide whether Barclays Bank is vicariously liable for sexual assaults allegedly committed between 1968 and about 1984 by the late Dr. Gordon Bates. Dr. Bates was a self-employed medical practitioner with a portfolio practice. His work included conducting medical assessments and examinations of prospective Barclays employees. Barclays required job applicants to pass a pre-employment medical examination as part of its recruitment and employment procedures.

Barclays arranged the appointments with Dr. Bates and provided him with a pro forma report headed “Barclays Confidential Medical Report”. Dr. Bates was paid a fee for each report; Barclays did not pay him a retainer. If the report was satisfactory, the applicant’s job offer would be confirmed, subject to satisfactory GCE examination results. Dr. Bates conducted the (unchaperoned) medical examinations in a consulting room at his home. It is alleged that Dr. Bates sexually assaulted the 126 claimants in this group action during their medical examinations. After Dr. Bates died in 2009, the claimants sought damages from Barclays. At first instance, the judge held that Barclays is vicariously liable for any assaults that Dr. Bates is proved to have perpetrated. The Court of Appeal agreed and dismissed Barclays’ appeal. Barclays now appeals to the Supreme Court.

Before one person can be made vicariously liable for the torts of another, two elements must be shown. First, there must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of the other. Second, there must be a sufficient connection between that relationship and the wrongdoing of the person who committed the tort. This case concerns the first element. Historically, and leaving aside relationships such as agency and partnership, the relationships that could give rise to vicarious liability were limited to that between an employee and an employer.

Accordingly, Barclays’ case is that, since Dr. Bates was an independent contractor and not a Barclays employee, it cannot be held liable for his wrongdoing. As Lord Bridge of Harwich said in D & F Estates Ltd v Church Comrs, “It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other t.orts committed by the contractor in the course of the execution of the work”.

Clearly, although Dr Bates was a part-time employee of the health service, he was not at any time an employee of the Bank. Nor, viewed objectively, was he anything close to an employee. He did, of course, do work for the Bank. The Bank made the arrangements for the examinations and sent him the forms to fill in. Dr. Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the Bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance, although this may not have covered him from liability for deliberate wrongdoing. He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the Bank.

Accordingly, the Court allows the appeal and holds that Barclays is not vicariously liable for any assaults that Dr Bates is proved to have perpetrated in the course of the medical examinations he carried out for Barclays.

Tags : MEDICAL ASSESSMENT ASSAULTS LIABILITY