Various Claimants v Barclays Bank Plc
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Nicola Davies |
| Judgment Date | 26 July 2017 |
| Neutral Citation | [2017] EWHC 1929 (QB) |
| Docket Number | Case No: TLQ17/0769 |
| Court | Queen's Bench Division |
| Date | 26 July 2017 |
[2017] EWHC 1929 (QB)
The Hon. Mrs Justice Nicola Davies DBE
Case No: TLQ17/0769
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Lizanne Gumbel QC and Mr Robert Kellar (instructed by Slater and Gordon LLP) for the Claimants
Lord Faulks QC and Mr Nicholas Fewtrell (instructed by Hill Dickinson LLP) for the Defendant
Hearing date: 11 July 2017
Judgment Approved
In this group litigation 126 claimants seek damages against Barclays Bank ("the Bank") in respect of alleged sexual assaults to which they were subjected by Dr Gordon Bates. At the time of the alleged assaults the majority of the claimants were applicants for employment with the Bank, a small number were existing employees. Each claimant was required to attend the home of Dr Bates where he had a consulting room. There Dr Bates is alleged to have carried out a medical assessment and examination on behalf of the Bank and in the course of so doing sexually assaulted each of the claimants. On 6 April 2016 a Group Litigation Order was made by the Senior Master with the consent of the President of the Queen's Bench Division.
On 15 December 2016 I ordered that:
"There should be a trial of the following 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."
This is the judgment upon the preliminary issue.
Background
Dr Bates was born in 1926. Between 1968 and 1984 he carried out medical assessments and examinations on behalf of the Bank for their employees or prospective employees. Dr Bates died in 2009. Many of the claimants were teenagers at the date of the examinations, some were aged 16.
It was a requirement for any person who was to be offered a job by the Bank that he or she would undergo a medical examination prior to the offer of employment. Documentation shows that at the relevant time the Bank was positively recruiting young women for training. Applicants who were successful at interview were informed that they would be offered a job subject to passing a medical examination. The Bank instructed the applicant to see Dr Bates for the purpose of that examination, the applicant was notified of the place, date and time. The claimants were examined by Dr Bates at his home address in Newcastle-upon-Tyne. A room in the house had been converted into a consulting room for the doctor.
A claimant could visit the doctor on his or her own, some claimants attended with one or more members of their family. When the claimant was seen by the doctor the claimant was alone in the room with him, the examinations took place in the absence of a chaperone. It is the claimants' case that Dr Bates required a claimant to undress down to his or her underwear. Thereafter, the precise nature of the allegations varies as between the claimants but they typically include:
i) inappropriate breast examinations; and/or
ii) digital vaginal contact or penetration; and/or
iii) digital anal contact or penetration.
Following the examination Dr Bates completed a medical examination pro forma for each claimant which was 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. It was returned to the Bank where it was scrutinised and, if satisfactory, an offer of employment was made. Dr Bates appears to have been paid a set fee by the Bank for each of the examinations.
In 2013 a police inquiry was carried out investigating at least 48 victims of alleged sexual assaults by Dr Bates. The police concluded that there would have been sufficient evidence to pursue a prosecution had the doctor been alive. During the police investigation the head of employee relations at the Bank wrote to the women who were being investigated and offered an employee support helpline and a confidential counsellor should the same be required.
The claimants' case
In essence the claim is contained in paragraphs 1.4 to 1.10 of the Master Particulars of Claim as follows:
"1.4. …the Defendant utilised the services of Dr Bates in the role of medical examiner of the prospective employees for purposes which included the following:
(a) To satisfy the requirement that the individual concerned was medically suitable for service in the bank; and
(b) To confirm that Dr Bates would recommend acceptance of the individual concerned for life assurance at ordinary rates.
1.5. The medical examinations carried out by Dr Bates were recorded on forms headed 'Barclays Confidential Medical Report', the word 'Barclays' being written in the Defendant's typescript and logo at the time. It is the Claimants' understanding that these forms were produced by or for the Defendant as their template standard documents and the content was dictated by the Defendant.
1.6. The medical examinations which the Claimants were required to undergo with Dr Bates were undertaken for the purpose of furthering the aims of the Defendant and ultimately for the purpose of allowing the Defendant to employ sufficient and suitable staff to make their business profitable. The Defendant required young applicants to undergo health checks before being employed by the Defendant (or during the course of their employment) in for purposes which included avoiding the expense to themselves of employing staff with health problems that might require its staff to have protracted periods away from work. There was no benefit to the Claimants in undergoing the medical examinations other than to comply with the Defendant's request and/or the Defendant's refusal to employ them without such an examination.
1.7. The Claimants understand that the Defendant used Dr Bates to carry out these medical examinations for all applicants in the North East area who had performed satisfactorily at interview. This was the position from around 1967 until around 1984. Dr Bates was, therefore, integrated into the Defendant's business in order to provide the medical examinations which it required and which it had no other employee to carry out.
1.8. The Claimants were all young at the material time and had been offered a job by the Defendant on condition that they attended and passed the medical examination. They had no real choice as to whether to attend the medical examination. In addition, some claimants were required to attend medical examinations with Dr Bates during the course of their employment for Barclays Bank.
1.9. The Claimants had no choice in respect of the identity of the Doctor who was to examine them in order for them to be able to take up their roles as employees for the Defendant. Dr Bates was held out by the Defendant to the Claimants as a Doctor who had the necessary medical skills to examine the Claimants and as a Doctor whose examination would be confined to such as was necessary for medical purposes. The Defendant notified Dr Bates of the name of patients that they were arranging to see him for a medical examination. The examinations were always arranged between the Defendant and Dr Bates not between the Claimants and Dr Bates.
1.10. The sexual and physical assaults the Claimants in this action complain of were perpetrated in circumstances where:
(a) Dr Bates was directly employed by the Defendant; or
(b) Dr Bates was engaged by the Defendant in a role akin to employment; or
(c) the examination took place only as a result of the Defendant holding out Dr Bates as a competent and appropriate Doctor to carry out a medical examination, the Defendant required the examination to take place and the Claimants relied on this assurance to attend for an examination as required by the Defendant."
The responsibility of the Bank for the actions of Dr Bates is alleged in the Particulars of Claim to be as follows:
"The Defendant was at all relevant times operating as a High Street Bank for profit and employed a large number of men and women to work in its banking operation. According to literature published by the Defendant in 1968 the Defendant had a staff of over 34,000 people of which more than half were women…
It was a requirement for any woman who was offered a job by the Defendant that they would undergo a medical examination before taking up the offer of employment with the Defendant…
The Defendant owed a duty of care and/or non-delegable duty of care to the applicants to whom it offered employment subject only to a medical examination to ensure such medical examination was carried out by a suitable medical practitioner in suitable premises and with suitable safeguards against sexual assault…
The Defendant is vicariously liable for any negligence, breach of duty or deliberate act of Dr Bates carried out in the course of examinations carried out at the Defendant's request. The Defendant employed Dr Bates as a medical examiner for young applicants offered employment.
The Claimants allege that in the circumstances of this case the Defendant was vicariously liable for the sexual assaults perpetrated by Dr Bates. The Claimants will rely in particular on the analysis of Lord Phillips in the Supreme Court in the case of in Various Claimants v Catholic Child Welfare Society and others [2013] 2 AC 1. It is alleged by these Claimants that Dr Bates was clearly carrying out the work of the Defendant and there is a sufficiently close connection between the Doctor and the Bank which is at least: ' akin to employment'."
For the purpose of this hearing witness statements have been served from five claimants. No witness was required to attend for cross-examination. Each claimant was aged 16 at the...
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