UK Supreme Court: Barclays Bank not vicariously liable for doctor’s alleged sexual assaults

The Supreme Court has allowed an appeal by Barclays Bank and held that they were not vicariously liable for any sexual assaults committed by a doctor who performed medical examinations on their behalf.

It had been previously held in the High Court in 2017 that the bank was vicariously liable for any assaults committed by the late Dr Gordon Bates on some 126 claimants between approximately 1968 and 1984. The bank’s appeal to the Court of Appeal in 2018 was dismissed, and followed by an appeal to the Supreme Court.

The appeal was heard by Lady Hale, who delivered the opinion of the court, along with Lord Reed, Lord Kerr, Lord Hodge, and Lord Lloyd-Jones, all of whom agreed with Lady Hale.

Independent contractor

The respondents, who were the claimants in the original case, had all been offered a job with Barclays pending a satisfactory medical examination to ensure they could be recommended for life insurance at the ordinary rate. Many of them were young at the time, some as young as 16 and looking for their first job after leaving school.

At the time, Dr Bates was a medical practitioner in Newcastle-upon-Tyne who, amongst other things, performed medical examinations for companies. Applicants were made appointments with Dr Bates by the bank, which took place in a converted consulting room inside his house. After every appointment, he filled in a pro forma report for the bank and was paid a fee per report.

The respondents alleged that Dr Bates had sexually assaulted them during the medical examinations by inappropriately touching their breasts and/or making digital contact or penetrating their vagina or anus. Many of them were alone in the room with Dr Bates for the examinations. Dr Bates died in 2009, and could not be sued by the respondents.

The appellant argued that, although recent cases had extended the scope of the law of vicarious liability, it was still trite law that the employer of an independent contractor could not be liable for the negligence or other tort of the contractor in the course of carrying out the work.

The argument of the respondents was that recent Supreme Court cases, including Christian Brothers, Cox v Ministry of Justice ([2016] UKSC 10) and Armes v Nottinghamshire County Council ([2017] UKSC 60), had replaced that trite proposition with a more nuanced approach in which a range of incidents are considered in deciding whether it is “fair, just and reasonable” to impose vicarious liability upon this person for the torts of another person who is not his employee. This was the approach that the High Court and the Court of Appeal had previously used in dealing with this case.

Vicarious liability

In her judgment, Lady Hale began by considering the recent expansions in the law of vicarious liability. In particular, she quoted a list of policy reasons given by Lord Philips in the Christian Brothers case that make it reasonable to impose vicarious liability, namely: “(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

This was expanded to include independent contractors who were in a relationship sufficiently analogous to employment. However, Lady Hale cited the case of Woodland v Swimming Teachers Association ([2013] UKSC 66), heard after the Christian Brothers case, in which it was held that a school had a non-delegable duty of care towards the pupils for whom it arranged compulsory swimming lessons with an independent contractor. The school, rather than the contractors, was held liable for the negligence of the swimming teacher in that case. Lady Hale noted: “There is nothing […] to suggest that the classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been eroded.”

She continued: “The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five “incidents” identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically self-employed or agency workers are effectively part and parcel of the employer’s business.”

The decision

Allowing the appeal, Lady Hale held that Dr Bates was not an employee or analogous to an employee of the bank, saying: “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. It therefore chose the questions to which it wanted answers. But the same would be true of many other people who did work for the Bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books. 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.”

She concluded with comments on the nature of a “worker” in modern times, saying: Until these recent developments, it was largely assumed that a person would be an employee for all purposes - employment law, tax, social security and vicarious liability. Recent developments have broken that link, which may be of benefit to people harmed by the torts of those working in the “gig” economy. It would be tempting to align the law of vicarious liability with employment law in a different way. Employment law now recognises two different types of “worker”: (a) those who work under a contract of employment and (b) those who work under a contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

As a final note, she said: “it would be going too far down the road to tidiness for this court to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of “worker”, developed for a quite different set of reasons.”

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