In this group litigation 126 claimants sought damages against Barclays Bank in respect of alleged sexual assaults to which they were subjected by the late Dr Gordon Bates. At the time of the alleged assaults the majority of the claimants were applicants for employment with the Bank, a small number were existing employees. Each claimant was required to attend the home of Dr Bates where he had a consulting room. There Dr Bates is alleged to have carried out a medical assessment and examination on behalf of the Bank and in the course of so doing sexually assaulted each of the claimants.
Various claimants v Barclays Bank PLC  EWHC 1929 (QB) included consideration of the potential basis of the Bank’s liability given that Dr Bates was not an employee of the Bank. The court agreed (at ) that a two stage test was required – whether the relevant relationship was ‘akin to employment’ and if so was the tort sufficiently closely connected with the employment / quasi-employment.
The analysis by the trial judge at  –  is set out below:
Stage 1: Is the relevant relationship one of employment or “akin to employment”?
- Five criteria:
i) The defendant is more likely to have the means to compensate the victim than the tortfeasor and can be expected to have insured against that liability;
Underlying the concept of vicarious liability is the fact of two innocent parties and a balance having to be weighed. Dr Bates died some eight years ago, his estate has long since been distributed. The claimants have no recourse against Dr Bates, his medical defence insurers would not indemnify for alleged sexual assaults. The only legal recourse the claimants have is to sue the Bank for the vicarious acts of its tortfeasor. There is no issue that the Bank or its insurers have the means to meet such claims.
ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
An applicant’s employment was conditional upon the Bank being satisfied, as a result of the medical examination, that the applicant was medically suitable for service in the Bank and was recommended for life insurance at ordinary rates. Dr Bates was the chosen doctor of the Bank. Prospective employees or existing employees were given no choice as to the doctor to be seen. The Bank made arrangements for the medical examinations, directing present or future employees where to go and when. The medical reports completed by Dr Bates were headed with the Bank’s logo, signed by himself and by the relevant claimant. The claimants felt compelled to undergo the pre-employment examination because they understood (correctly) that it was an essential stage of the Bank’s recruitment process. The claimants had no reason to be examined by Dr Bates other than their proposed or existing employment with the Bank. It was the Bank which paid for the examination not the claimant. The work carried out by Dr Bates was for the benefit of the Bank, to ensure that those who were employed by the Bank had the health to carry out its work. Given all of these facts I find that the medical examination, assessment of a claimant and subsequent report of the same to the Bank by Dr Bates was performed for the benefit of the Bank and on its behalf.
iii) The tortfeasor’s activity is likely to be a part of the business activity of the defendant;
The purpose of the pre-employment medical examination was to enable the Bank to be satisfied that a potential member of staff would, health wise, be an effective member of its workforce. A workforce is an intrinsic part of the business activity of a bank, it could not function as a business without it. The medical assessment enabled the Bank to satisfy itself that a present or future employee was physically suitable for the work which they were, or were to be, employed to do. The requirement to undergo the medical examination emanated solely from the Bank, it was of no health benefit to the individual concerned. In providing a medical assessment and conclusion, namely that a claimant was physically suitable to be a member of its workforce, Dr Bates was acting for the benefit of the Bank and in so doing was an integral part of the business activity of the Bank.
iv) The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee;
The Bank directed the claimant where to go for a medical examination. Many of the claimants were young girls, who were being seen and examined by a doctor they did not know. The claimant had no choice as to the doctor and was directed by the Bank to be seen and examined by him at his home. The Bank directed the doctor to perform a physical examination which included a chest measurement. The claimants, many of whom were 15 or 16, saw the doctor alone in his room when, as part of the medical examination, they were asked to remove clothing. In my judgment given the factual set of circumstances the Bank did create the risk of the tort which was allegedly committed by Dr Bates.
v) The employee will, to a greater or lesser degree, have been under the control of the employer;
The fact that Dr Bates organised his own professional life and carried out other medical activities does not negate an argument that he was under the control of the Bank. Were this to be a strict employer/employee situation the fact of part-time employment and/or whether the employee has one or more other jobs does not prevent an employer from being vicariously liable for acts or omissions occurring during the course of the employee’s relevant employment. Further the fact that Dr Bates performed the examinations in his own home does not negate the “control” argument. An employer can be vicariously liable for the act of its employee, e.g. a driver, even though the alleged act or omission takes place outside the employer’s premises. What has to be looked at is the control which existed as between the Bank and Dr Bates in respect of the identified activity namely medical assessments, examinations and reports.
Lord Reed in Cox agreed with Lord Phillips in Catholic Child Welfare Society in identifying the significance of control as being that the defendant can direct what the tortfeasor does not how he does it. This would be of particular relevance in this situation where the individual is conducting a medical examination and should be utilising his particular professional expertise and knowledge. It is of note that the Bank was directional in identifying the questions to be asked and the physical examinations to be carried out by the doctor for the purpose of completing the templated form. The control was of a higher level of prescription than might usually be found in the context of an examination required to be performed by a doctor. The control also manifested itself in directing the claimant to a particular doctor and giving the claimant no choice in the matter. I am satisfied that the Bank exerted sufficient control to satisfy this criterion. Accordingly the relevant criteria in respect of Stage 1 are met.
Stage 2: Was the tort sufficiently closely connected with that employment or quasi employment?
- The alleged sexual assault occurred during the course of a medical examination which the defendant required the claimants to undergo in respect of present or future employment. The task of carrying out the medical examination was entrusted to Dr Bates by the defendant. 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. To use the words of Lord Phillips in Catholic Child Welfare Society in :
“…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…”
The claimants were in physical proximity to Dr Bates by reason of the nature of the examination. He was a doctor and, at the time of these offences, is likely to have been viewed by young women as being in authority not least because he was the doctor chosen by their present or prospective employer to carry out a medical examination relating to their employment. The sexual abuse took place when the doctor was engaged in the duties at the time and place required by the Bank. On the facts I find that the alleged sexual abuse was inextricably interwoven with the carrying out by the doctor of his duties pursuant to his engagement by the Bank. In the circumstances I find that the tort is so closely connected with that employment or engagement as to satisfy the second stage.
- Applying the check of whether my conclusions are just and fair I accept that this is a balancing exercise between two innocent parties. I understand the submission made on behalf of the defendant that had these claims been made earlier Dr Bates and his estate could have had the financial means to meet them. The ability of any person to make a claim of sexual abuse is never straightforward. These are claims made many years after the alleged abuse and in the Master Defence the defendant has taken the limitation point. The action against the Bank is the only legal recourse now available to claimants. Balancing those factors and applying the just and fair test does not cause me to alter the conclusions. Accordingly I find that the defendant is vicariously liable for any assaults that any claimant may prove to have been perpetuated by Dr Gordon Bates in the course of medical examinations carried out at the request of the defendant either before or during their employment with the defendant.
With thanks to Associate Professor Tina Cockburn for noting this decision.