The long awaited decision in Barclays Bank’s appeal to the Supreme Court was handed down on 1 April 2020. Barclays Bank was appealing the decisions made in the first instance and in the Court of Appeal which held them vicariously liable for the actions of an independently contracted doctor.
Barclays Bank contracted Dr Gordon Bates to carry out pre-employment medical assessments during the years 1968 and 1984 for prospective employees of the bank. These assessments were carried out unchaperoned in a consulting room in Dr Bates’ home.
It is alleged that Dr Bates sexually assaulted 126 women during these assessments. Dr Bates died in 2009, however a 2012 Police investigation confirmed that if he was still alive there would be enough evidence to charge him. This led to numerous civil claims.
The Supreme Court unanimously allowed Barclays’ appeal and held that they are not vicariously liable for Dr Bates alleged wrong doing.
When handing down the judgment Lady Hale reiterated the two stage test which needs to be satisfied for vicarious liability to be established.
Firstly there must be a relationship between the two parties which ‘makes it proper for the law to make one pay for the fault of the other’ and secondly there must be a connection between that relationship and the wrong doing of the person committing the tort.
In this case, the Supreme Court stated the first stage of the test was not established.
In deciding that Barclays were not vicarious liability, Lady Hale stated the following facts supported the Supreme Courts decision:
- Dr Bates was not an employee or anything close to an employee of Barclays
- Dr Bates was in a business of his own as a medical practitioner and almost definitely had his own medical liability insurance
- Although Dr Bates did carry out work for Barclays and Barclays asked specific questions to be answered in his assessments, it was no different to Barclays giving instructions to for example a window cleaner or auditor
- Dr Bates was not on a paid retainer which obliged him to accept referrals on behalf of Barclays and he could refuse to carry out an examination if he wanted
- The decision in this case will have a significant impact on how cases with similar factual circumstances will be pursued and will no doubt be a source of disappointment to those claimants who had pursued this litigation.
The Supreme Court also today handed down its decision in the Morrisons case which in very different factual circumstances considered the law of vicarious liability. Morrisons also succeeded in its appeal and it therefore appears that the Supreme Court has used these two cases to stem the flow of vicarious liability.
Nicola Aspinwall, Associate Solicitor, BLM