On appeal from: [2018] EWCA 1670.

In this appeal, the Supreme Court is asked to decide whether Barclays Bank is vicariously liable for sexual assaults allegedly committed between 1968 and about 1984 by the late Dr Gordon Bates. Dr Bates was a self-employed medical practitioner with a portfolio practice. His work included conducting medical assessments and examinations of prospective Barclays employees. Barclays required job applicants to pass a pre-employment medical examination as part of its recruitment and employment procedures.

Barclays arranged the appointments with Dr Bates and provided him with a pro forma report headed “Barclays Confidential Medical Report”. Dr Bates was paid a fee for each report; Barclays did not pay him a retainer. If the report was satisfactory, the applicant’s job offer would be confirmed, subject to satisfactory GCE examination results. Dr Bates conducted the (unchaperoned) medical examinations in a consulting room at his home. It is alleged that Dr Bates sexually assaulted the 126 claimants in this group action during their medical examinations. After Dr Bates died in 2009, the claimants sought damages from Barclays.

At first instance, the judge held that Barclays is vicariously liable for any assaults that Dr Bates is proved to have perpetrated. The Court of Appeal agreed and dismissed Barclays’ appeal. Barclays now appeals to the Supreme Court.

Held: The Supreme Court unanimously allows Barclays’ appeal, and holds that it is not vicariously liable for Dr Bates’ alleged wrongdoing.

Before one person can be made vicariously liable for the torts of another, two elements must be shown. First, there must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of the other. Second, there must be a sufficient connection between that relationship and the wrongdoing of the person who committed the tort. This case concerns the first element.

The question is, as it has always been, whether the person who committed the tort is carrying on business on his own account, or whether he is in a relationship akin to employment with the defendant. On the facts, Dr Bates was not at any time an employee or anything close to an employee of Barclays.

Rather, he was in business on his own account as a medical practitioner, with a portfolio of patients and clients. He did work for Barclays, which made the arrangements for the medical examinations and chose the questions to which it wanted answers, but much the same would be true of window cleaners or auditors. Dr Bates was not paid a retainer, which might have obliged him to accept a certain number of referrals from Barclays. He was paid a fee for each report and was free to refuse to conduct an offered examination. He no doubt carried his own medical liability insurance.

Accordingly, the Court allows the appeal and holds that Barclays is not vicariously liable for any assaults that Dr Bates is proved to have perpetrated in the course of the medical examinations he carried out for Barclays.

For judgment, please download: [2020] UKSC 13
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (Morning 28 Nov 2019)  (Afternoon 28 Nov 2019)