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Published 4 August 2017
Following the Supreme Court's judgments in Woodland v Essex County Council in 2013 and Mohamud v Wm Morrison Supermarkets plc and Cox v Ministry of Justice in 2016, and at a time when we await the Supreme Court's judgment in Armes v Nottinghamshire County Council, the question of vicarious liability for the deliberate actions of an independent contractor was considered by the High Court in its recent judgment on this preliminary issue in Various Claimants v Barclays Bank plc.
The Claimants, 126 in number, pursued the bank for damages for deliberate sexual assaults by a doctor on whom the bank instructed them to attend for medical examinations, either in the course of their employment with the bank or as part of the employment application process.
The assaults occurred between 1967 and 1984, and the estate of the doctor, who died in 2009, had been distributed before the claims were presented; the fact that the Claimants had no recourse against the doctor or his estate, and that his insurers would not indemnify him for deliberate sexual assaults, meant that the Claimants' only potential actions were against the bank.
In her judgment, Mrs Justice Nicola Davies DBE considered the tests set out in E v English Province of our Lady of Charity, Various Claimants v Institute of the Brothers of Christian Schools and Cox v Ministry of Justice, and decided as follows:
1. Was the relationship between the bank and the doctor employment or akin to employment?
a) Is the bank more likely to have the means to compensate the Claimants than the doctor?
As set out above, the Claimants had no means of pursuing the doctor or his estate, and therefore the bank, which had the means to meet the claims, was the only potential compensator.
b) Was the tort committed as a result of activity by the doctor on behalf of the bank?
The potential employees and employees were required to undergo the examination as a condition of their terms of employment, and the bank dictated the doctor performing the examination and its location and time; the judge found that the medical examination was performed by the doctor for the benefit and on behalf of the bank.
c) Was the doctor's activity part of the business activity of the bank?
The medical examination was required by the bank in order to ensure that it recruited healthy and effective employees, and that potential recruits were physically suitable for the work in which they were employed. The medical examinations were an integral part of the bank's business activity.
d) Did the bank create the risk of the doctor's committing the assaults?
Through directing its employees and potential employees to attend examinations by the doctor, and spelling out the nature of the examination (which included chest measurements and required the Claimants to undress to their underwear) the bank created the risk of the torts alleged to have been committed.
e) Was the doctor, to a greater or lesser degree, under the control of the bank?
Whilst the doctor performed medical examinations for a number of businesses, and was not the only examining doctor engaged by the bank in his geographical area, the bank directed what he did in examining the Claimants through identifying the questions to be asked and physical examinations to be performed, which were recorded on a template form created and supplied by the bank to the doctor. The bank also exercised control in directing the Claimants to be examined by the doctor, and the judge concluded that the bank exercised sufficient control to satisfy this criteria.
2. Was the tort sufficiently closely connected with the employment / quasi employment?
The fact that the assaults took place during the course of medical examinations required by the bank, by a doctor instructed by the bank to perform the examinations, meant that the incidents were inextricably interwoven with the carrying out of his duties for the bank, and this test was satisfied.
The judge went on to consider whether it was just and fair for the bank to be required to meet the claims, and in so doing took into account the fact that, if the claims had been presented some years earlier, the doctor (or his Estate) could have met the claims. Whilst the claims were presented many years after the alleged abuse, and limitation remained an issue in the Defence, the judge concluded that it was fair, just and reasonable for the bank to be vicariously liable for any assaults which the Claimants may prove the doctor to have perpetrated in the course of medical examinations he performed at the bank's request.
It is possible that decision may be appealed.
The decision in this matter appears to be influenced, to a significant extent, by the fact that the Claimants would not be able to pursue either the doctor or his estate, and therefore the only recourse available to them is against the bank. Whether the same decision would have been reached had the doctor still be alive is not clear. However, he would not have the benefit of indemnity insurance and with 126 Claimants it is unlikely that he would have had sufficient assets to satisfy judgment. There is a strong desire in the courts to find vicarious liability outside of the traditional employer-employee relationship and this may be an indication of the outcome of the Armes decision. One thing that is clear is the fact that, where businesses have contracted work to individuals or other businesses, they may still face claims following negligent or deliberate actions by the contractor.
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