Extension of vicarious liability to independent contractors

In advance of what may be a large number of claims against sports organisations, particularly football teams, legal determination on the extent of vicarious liability for independent contractors is timely. A trial of a preliminary issue in Various Claimants v Barclays Bank Plc [2017] EWHC 1929 (QB) concluded that Barclays (“the Bank”)  was vicariously liable for the intentional sexual assaults of a doctor retained to conduct pre-employment medical examinations of prospective employees.

A group of 126 claimants are pursuing claims against the Bank for damages for alleged sexual assaults perpetrated by a Dr G Bates between 1968-1984. The allegations emerged in 2013, when a police investigation took place, but the doctor had died in 2009 so there was no criminal prosecution.

During the relevant period, when there was a policy of positive recruitment of young women it was a requirement that anyone who was to be offered a job by the Bank had to undergo a medical examination prior to a formal offer of employment.   The claimants, mostly 16 year olds, were examined by Dr Bates at his home address where a room in the house had been converted into a consulting room. They would often attend the appointment with their parents but were unchaperoned during the examination.  After the examination Dr Bates completed a medical examination pro forma for each claimant which was headed with the Bank’s logo and entitled ‘Barclays Confidential Medical Report’.  The reports were signed by both the doctor and the claimant and then returned to the Bank.  If satisfactory, an offer of employment was made.  The doctor was paid a set fee for each examination.

The Bank’s defence was that Dr Bates was an independent contractor. He was qualified as a GP but undertook medical examinations for other organisations such as an insurance company and commonwealth governments in relation to those wanting to emigrate.  The Bank acknowledged the favourable developments in the law relating to vicarious liability from a claimant’s perspective but contended that they did not affect the concept of an independent contractor.

The judge applied the two stage test for vicarious liability namely;

  • Is the relevant relationship one of employment or ‘akin to employment’?
  • If so, is the tort sufficiently closely connected with that employment or quasi employment?

She also followed the guidance set out by Lord Phillips in Catholic Child Welfare Society and Others v Various Claimants [2012] UKSC 56 and endorsed and developed by Lord Reed in Cox v Ministry of Justice [2016] UKSC 10.

Her conclusion on the first limb was that all five of Lord Phillips’ criteria were satisfied;

  • The only option open to the claimants was to sue the Bank. Dr Bates was dead and his estate had been distributed. His professional indemnity insurers would not meet claims for intentional sexual assault.  The Bank and/or its insurers had the means to meet the claims.
  • The medical examination, assessment of the claimant and subsequent report were made for the benefit of the Bank. Any offer of employment was conditional upon the outcome of the examination and Dr Bates’ report confirming the applicant was medically suitable for service and recommended for life insurance at ordinary rates. He was the Bank’s chosen doctor and the applicants’ had no choice in the matter.  The Bank made the arrangements in relation to the appointments, the reports were headed with their logo and they paid Dr Bates.
  • The medical examinations were a part of the business activity of the Bank. They were to enable the Bank to satisfy itself that a present or future employee was physically suitable for the work for which they were, or were to be, employed for.  The workforce was an intrinsic part of the business activity of the Bank and it could not function as a business without it.  The examinations were not for the health benefit of the claimants.
  • The Bank created the risk of the tort which was allegedly committed by Dr Bates. It directed where the claimants had to go. Many were young girls being seen by a doctor they did not know, at the Bank’s direction, in his home.  Furthermore, they were required to remove their outer clothing and the Bank directed the doctor take a chest measurement.
  • When the control that existed as between the Bank and the doctor was reviewed in respect of the identified activity – medical assessments, examinations and reports – the Bank exerted sufficient control. It was directional in identifying the questions to be asked and physical examinations to be carried out in order to complete a templated form.  Furthermore, the Bank directed which doctor the claimants should see and gave them no choice in the matter.

As regards the second limb of the test the judge found it difficult to see how it could sensibly be argued that the doctor’s acts could not be found to fall within the remit of the task set him and that the alleged abuse was inextricably interwoven with the doctor carrying out his duties pursuant to his engagement by the Bank.  Therefore, that limb was satisfied.

In relation to the final test of whether it was just and fair to impose liability, the judge noted that it was a balancing act between two innocent parties.  However, this was the only recourse available to the claimants now notwithstanding the fact that had they made their claims earlier, before the doctor’s death, he would have had the financial means to meet the claims personally.

Vicarious liability for any assaults that the claimants can prove will attach to the Bank.

The decision undoubtedly represents an extension of the doctrine of vicarious liability and an incursion into the defence of the independent contractor.  It potentially has ramifications in many areas beyond non recent abuse claims.  It is understood that the Bank’s advisors are considering the defendant’s position and an appeal may follow. Whatever the decision there this issue will no doubt be one for further consideration in coming years in the sports context.


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Written by Sarah Firth, associate at BLM

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