Barclays Bank Plc v Various Claimants
|England & Wales
|Sir Brian Leveson P,Lord Justice Irwin,Lord Justice McCombe
|17 July 2018
| EWCA Civ 1670
|Court of Appeal (Civil Division)
|Case No: B3/2017/2709
|17 July 2018
 EWCA Civ 1670
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice McCombe
Lord Justice Irwin
Case No: B3/2017/2709
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mrs Justice Nicola Davies DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Faulks QC and Mr Nicholas Fewtrell (instructed by Keoghs LLP) for the Appellant
Ms Elizabeth-Anne Gumbel QC and Mr Robert Kellar (instructed by Slater and Gordon LLP) for the Respondents
Hearing date: 28 June 2018
This case is an appeal from the decision of Mrs Justice Nicola Davies DBE of 26 July 2017, respecting a preliminary issue. The claim is group litigation on behalf of 126 Claimants, who seek damages against Barclays Bank Plc (“the Bank”) in respect of sexual assaults to which they allege they were subjected by the late Dr Gordon Bates. The majority of the Claimants were applicants for employment with the Bank and the remainder were existing employees. In each case the Claimant was required to attend the consulting room of Dr Bates at his home. In each case, the Claimant alleges she was sexually assaulted by Dr Bates in the course of his examination. A group litigation order was made on 6 April 2016, and on 15 December 2016 the judge 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.”
Following examination of the facts and authority, Mrs Justice Nicola Davies concluded that vicarious liability was established. The Bank challenges that conclusion.
The facts are fully set out in the judgment of the court below. It is necessary for me only to summarise the salient findings of the judge which underpin her conclusion.
Dr Bates was born in 1926 and died in 2009. He practised as a general practitioner until around 1968 but from then until 1984 or so he conducted medical examinations and assessments on behalf of the Bank for employees and prospective employees. Many of the Claimants were teenagers or very young women at the date of the examinations.
Such medical examinations were made a requirement of the Claimants' employment, or of the offer of employment. Dr Bates was often referred to as “the Bank's doctor” or “our doctor”.
I have indicated that the examinations were conducted by Dr Bates in a consulting room at his house. The examinations took place with the candidate on her own and without a chaperone, even if she attended along with a member of the family. It is the Claimants' case, assumed to be so for the purpose of the preliminary issue, that Dr Bates required the individual to undress at least down to her underwear. The allegations made typically include inappropriate examinations of the breasts and/or digital contact or penetration of the anus or vagina.
Dr Bates was provided with proforma examination forms by the Bank, headed with the Bank's logo and entitled “Barclays Confidential Medical Report”. The report was completed and signed by Dr Bates and by the Claimant and was then returned to the Bank. If the report was satisfactory an offer of employment was made. Dr Bates was paid a set fee for each examination.
In 2013, the police conducted an enquiry into at least 48 victims of alleged sexual assault by the late Dr Bates, with the conclusion that had Dr Bates been alive there would have been sufficient evidence to pursue a criminal prosecution.
The Judge's Approach
The learned judge reviewed the competing submissions of the parties.
The critical points advanced by the Claimants can be summarised as follows. The examinations served the Bank's purposes, including reassurance that the individual concerned was medically suitable for service in the Bank, minimising the risk of health problems amongst their staff, and confirmation that Dr Bates would recommend acceptance of the individual for life assurance at ordinary rates. The proforma medical examination forms were produced in a standard fashion by the Bank and the content was dictated by the Bank. The benefit to those examined was the prospect of employment, or continued employment. The Claimants were all young, some very young, at the relevant time. If they wished to be employed by the Bank they had no option but to undergo the examination, and in respect of the minority who were existing employees, they were instructed to comply as part of their employment.
The Claimants plead that the Bank was vicariously liable for the sexual assaults by Dr Bates on the basis either he was a direct employee of the Bank, or was in a role “akin to employment”, or on the basis that the relevant examinations took place because the Bank held out “Dr Bates as a competent and appropriate doctor to carry out a medical examination, but the Defendant required the examination to take place and the Claimants relied on this assurance to attend for an examination as required”. The Claimants also pleaded a direct duty of care on the part of the Bank, and/or a “non-delegable duty of care” in respect of these medical examinations. However, it was vicarious liability which was actively pursued before the judge and in this court.
The Bank's case before the court below can be summarised in the following way: the Appellant does not admit or deny the allegations of sexual abuse. The Bank denies that Dr Bates was ever an employee of the Bank or in a situation akin to employment. Rather it is averred that he was self-employed and engaged by the Bank as an independent contractor. Dr Bates himself would be liable for any assaults proved.
The Appellant Bank filed witness statements which were considered. The evidence from Mrs Margaret Glendinning, who was responsible for recruiting female staff in the North East of England from 1966, confirmed that offers of employment to such candidates were made subject to a –
“…satisfactory medical examination. The letter would include details of the time and venue of the examination. The candidate's details were passed to a clerk who would arrange appointments with Dr Bates. A fee was payable to Dr Bates for each medical examination. Following the medical Dr Bates would return a standard report to the bank, completed and signed by himself and the candidates. Ms Glendinning would read the forms and if the medical was satisfactory the successful candidate would be offered employment”.
There was a set fee for each medical examination for which Dr Bates would invoice the Bank. Mrs Glendinning could not recall any other doctor being engaged in this way, save for Dr Bates, during the relevant period, although there was some documentary evidence suggesting a very small number of such other examinations had taken place.
The evidence from another witness for the Appellant, David Giles, confirmed that each local head office of the Bank was responsible for recruitment in its own local area and each had its own arrangements for such pre-employment medical examinations. A statement from an employee of Municipal Mutual Insurance in Newcastle recorded that Dr Bates would carry out medical examinations for the insurance company in respect of which he was paid a fee for each examination.
Evidence from the son of the late Dr Bates dealt with the conditions and arrangements for examinations at the family house. Inter alia he confirmed that Mrs Glendinning, who organised the examinations for the Bank, would telephone the house to make arrangements during a period of recruitment but often the arrangements were made in fact by Dr Bates's wife. He confirmed the fee for each examination would normally be settled by the Bank sending a cheque. During the period that Dr Bates was performing examinations for the Appellant Bank, he was also performing a similar service for a South African mining company and an insurance company.
A sample report was before us, and before the judge, produced by Mrs Glendinning. The examinee has been anonymised. The pro forma required the doctor to take a family medical history and a personal medical history, including as to specific chest diseases and joint conditions. The examiner was directed to report on general appearance and build, basic dimensions, the applicant's chest measurements at “Inspiration” and “Expiration”. Further, the doctor was directed to report on any “abnormalities” found in the Respiratory System, Cardiovascular System, “Abdomen (including Genito-Urinary System)”, Nervous System and Miscellaneous. One box on the form directed the doctor as follows:
“5. Female applicants only:
Have you suffered from
(a) Dysmenorrhea or any other menstrual disorder
(b) miscarriage or disorder of pregnancy.”
In the sample report provided, the candidate was 16 years old. Dr Bates has recorded in manuscript:
“Delay in onset of puberty. Normal development of secondary sexual characters ( sic). Normal external genitalia. No evidence of any endocrine disturbance.”
It will be evident from the last note that Dr Bates must have examined the candidate's genitalia.
The Judge summarised the submissions made to her, reviewed an extensive range of authority, and in the course of that review noted the evolution of case law in respect of vicarious liability. She laid emphasis on the observations of Ward LJ in , and in particular his remark that the “law of vicarious liability had moved beyond the confines of a contract of...
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