​Nick Fewtrell instructed on behalf of Barclays Bank in The Court of Appeal

Will the expansion of vicarious liability ever stop?

The Court of Appeal removes the independent contractor defence in the Barclays Bank (Dr Gordon Bates) Group Litigation. Nick Fewtrell was instructed on behalf of Barclays Bank, as junior counsel being led by Lord Edward Faulks QC.

Background

A group of 153 claimants are seeking damages against Barclays Bank Plc (“the Bank”) in relation to sexual assaults which they allege were inflicted by Dr Gordon Bates between 1968 and 1984. Dr Bates died in 2009.

The vast majority of the claimants were applicants for employment with the Bank. A small number were existing employees. The purposes of the examination were to establish whether a claimant was medically suitable for service in the Bank and a suitable candidate for life assurance at ordinary rates. Every claimant was required to attend Dr Bates at his home, where he had a consulting room in which every claimant alleges that they were sexually assaulted by Dr Bates during examination.

A group litigation order was made on 6 April 2016, and on 15 December 2016 Mrs Justice Nicola Davies ordered that there should be a trial of a preliminary issue, namely:

“Whether the defendant is vicariously liable for any assaults that any claimant may prove to have been perpetrated 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”.

In other words, as per the now established two stage test for vicarious liability:

• 1.Was the relationship between the Bank and Dr Bates one that was capable of giving rise to vicarious liability?
• 2.Was there a sufficiently close connection between proven assaults by Dr Bates and the activity for which he had been engaged by the Bank?

It will be appreciated that on the facts the key question was question one. The claimants contended that they were compelled to attend an examination which was conducted for the Bank’s benefit; that Dr Bates completed a proforma report bearing the Bank’s logo; and that the Bank organised and paid for the examination. The Bank argued that as Dr Bates was an independent contractor, then, in line with established legal principle, vicarious liability could not arise for his actions. Dr Bates was a Schedule D taxpayer who conducted similar examinations for many other commercial organisations; he undertook regular chest clinics at a local hospital; he organised his own diary; a limited proportion of his work was for Barclays, and for that work he submitted an invoice and was paid a fee.

July 2017 Trial

At the trial of that issue in July 2017, the judge applied the five criteria most recently set out by Lord Reed in Cox v Ministry of Justice [2016] UKSC 10. The judge reached the following conclusions:

• Means to compensate - The Bank is more likely to have means than the tortfeasor and can be expected to have insured against that liability.
• Activity by employee for employer - The claimants had no choice as to which doctor they saw or where an examination took place. It was made clear to them that this examination was a necessary condition of any offer of employment. The examinations were purely for the benefit of the Bank and the examination proforma was headed with the Bank’s logo.
• Part of business activity of employer (the integration test) - 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. In providing a medical assessment Dr Bates was acting for the benefit of the Bank and accordingly was an integral part of the Bank’s business activity.
• Creation of risk - The claimants had no choice over which doctor they saw and the nature of the examination itself. The [majority of] claimants were young girls being examined by Dr Bates at his home alone. This, along with the specific requirements of the medical examination proforma was found to have created a risk of sexual assault.
• Control - It made no difference that Dr Bates had other employment and also that he organised his own professional life. The fact that the examinations did not take place on the Bank’s premises did not mean that the Bank did not have any control over Dr Bates’ work. The Bank had been “directional” to Dr Bates in identifying the questions which he had to ask and also the physical examination which needed to be carried out. The level of prescription within the form itself was unusual in the context of examinations to be performed by a doctor. Dr Bates was under the Bank’s control.
• Means to compensate - The Court of Appeal rejected the Bank’s submission that the issue should be assessed on commission of the torts rather than the time of the litigation. The Court stated that the Bank’s suggestion was impractical, would cause satellite litigation and could operate ‘to defeat rather than facilitate justice’ (though precisely how and why was not spelt out).
• Activity by employee for employer - Although the Court accepted the Bank’s contention that the medical examination brought benefits to the applicants as well it was “clear beyond doubt that the principal benefit was to the prospective employers”.
• Integration - The Court of Appeal stated that there could hardly be a clearer example of an activity being part of a defendant’s business activity than the selection of suitable employees for a responsible institution in the service sector. As we explain below, we regard this as a problematic analysis.
• Creation of risk - The Court of Appeal accepted that it may be argued these circumstances may less obviously give rise to the risk of tort than, say, the long-term placement of children in a boarding school. Nevertheless, it concluded that the risk on these facts was established. The difficulty with this criterion is that it is only ever considered in the context of alleged torts having already been committed, which makes satisfaction of the criterion something of a self-fulfilling prophecy; any introduction of ‘A’ by ‘B’ to ‘C’ carries with it a creation of some level of risk, however large or small.
• Control - The Court rejected the Bank’s submission that there was no greater control than was consistent with an independent expert in litigation giving his or her professional opinion.

Accordingly, the judge concluded that stage 1 of the vicarious liability test was satisfied. She also concluded that, as there was a sufficiently close connection between the purpose for which Dr Bates was engaged and the assaults giving rise to each claim, stage 2 was also satisfied. The Bank was thus vicariously liable for proven assaults by Dr Bates.

The Bank appealed the judge’s findings on stage 1.

The Court of Appeal (Leveson, McCombe, Irwin LJJ) has today (17 July 2018) dismissed the Bank’s appeal. Irwin LJ gave the judgment of the court, with which the others agreed.

The independent contractor defence

The Bank’s central argument was that Dr Bates’ status as an independent contractor was a defence to the claim. The Bank cited Ward LJ in E v English Province of our Lady of Charity [2012] EWCA Civ 938: “the law is clear: the employer is not vicariously liable for the torts of his independent contractor”.

The Court of Appeal rejected this proposition. The court noted that vicarious liability has been on the move in recent years, citing the Supreme Court’s judgments in Cox, Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 and Armes v Nottinghamshire County Council [2017] UKSC 60. So much so that the Court of Appeal considered that the law does not now require an answer to the question of whether the alleged tortfeasor was an independent contractor. Rather, it requires answers to the specified questions laid down in Cox and Mohamud and affirmed in Armes. Furthermore, the court indicated that, adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established, such have been the changes in structures of employment and of contracts for services as opposed to contracts of service.

This judgment suggests that the independent contractor defence no longer exists. This is despite the fact that in none of the previous cases before the Supreme Court was there an alleged tortfeasor who was an obvious independent contractor.

The Court of Appeal’s decision

The Court of Appeal reviewed the judge’s application of the Cox criteria:

The Court considered that there were distinctions between this case and the Bank’s example of an independent expert in litigation:

-It will be relatively rare for such an expert to conduct a general health examination, and rarer to do so against a standard formula set by the commissioning party;

-It would be rare for litigation experts to be asked to conduct intimate examinations of any kind, and very rare indeed to do so in relation to young and ostensibly fit individuals.

-The commissioning party will normally not be in a position to specify the particular tests, results or modes of physical examination to be performed.

The fair, just and reasonable test

The judge had found that it was fair, just and reasonable to impose vicarious liability upon the Bank. Absent that imposition, the claimants would lose their sole route to legal recourse. Dr Bates was not insured and his estate had been appropriately distributed following his death. Again, the Court of Appeal agreed. It has to be noted, however, there is undoubtedly a risk in a case involving such allegations that this consideration is given disproportionate weight. As the Court of Appeal specifically acknowledged in the course of argument, ‘we cannot erect a duty out of sympathy’ and ‘we cannot find vicarious liability just because that is where the money is’.

Implications of the judgment

The judgment undoubtedly raises questions:

• It suggests that the Supreme Court’s approach in the Cox, Mohamud, and Armes cases means that there is no longer an independent contractor defence. This is of potentially wide significance. There is no logical reason why vicarious liability should not arise in respect of like intentional torts committed by independent medical practitioners whenever they are instructed to carry out examinations for the benefit of organisations, whether they be employers, insurance companies, government bodies or other organisations. Yet, as the Court of Appeal acknowledges in para 43 of its judgment, in none of these recent Supreme Court cases was there an alleged tortfeasor who was ‘an obvious “independent contractor”. To that extent….there has not been a decision which squarely addresses facts such as these’.
• Leaving aside the independent contractor issue, the Court of Appeal’s consideration of the five questions comprising the stage 1 vicarious liability test is also problematic. In particular:

- The Court’s interpretation of what amounts to the tortfeasor carrying out part of a defendant’s business activity has been interpreted very widely indeed. The Bank contended that its business activity was banking: the Court has decided that recruitment is also part of the business activity of the Bank. It must follow that recruitment is thereby defined as part of the business activity of any employer; and an employer is potentially vicariously liable for all and any independently contracted assistance in connection with their recruitment process.

- Further, if recruitment is to be regarded as part of an employer’s business activity for the purposes of vicarious liability, does it then follow that vicarious liability may attach for torts in the context of what might previously have been considered as independent services outside an organisation’s core business activity? For example, electrical or plumbing works that enable a business to continue functioning? Window cleaning that ensures a business has clean premises for its workforce and customers? The list of potential scenarios is lengthy.

- The Court’s interpretation of what constitutes control over a tortfeasor also appears to have been extended beyond what the Supreme Court had previously stipulated. The unchallenged evidence was that Dr Bates practised on his own account, working from his home according to a diary which he controlled. It was his decision as to when he worked for whichever organisation sent him instructions. His examinations at the Bank’s request made up a relatively small proportion of his work. For that work he submitted invoices and was paid fees. And although he was presented with a proforma to complete, there was no evidence as to who had formulated the questions (even though the form bore the Bank’s logo), nor was there any evidence that the Bank gave Dr Bates any directions as to how he should conduct his examination in order to answer the questions on the proforma. He was, after all, instructed precisely because he was an independent medical practitioner.

- There are further concerns in relation to the Court’s analysis that Dr Bates was under greater control than a medico-legal expert instructed to provide an independent opinion in litigation. For example, and with specific focus on the grounds set out by the Court of Appeal, in litigation commissioning parties often do set out precise instructions to experts pursuant to CPR 35 (which in itself is a standard formula) but do not dictate to an expert how they are to conduct an examination. The level of intimacy in any examination will depend upon many factors, but it is for the expert to decide what needs to be done in order to respond to the instruction. Finally, it is not unreasonable to assume that any physician identifying previously undetected health issues in an examination would provide a preliminary diagnosis and advice upon what should be done to treat those issues. It is difficult to see how a party instructing a medico-legal expert who then assaults an examinee would not be caught by this analysis.