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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Various Claimants v Barclays Bank Plc  EWHC 1929 (QB) (26 July 2017)
Cite as:  EWHC 1929 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| VARIOUS CLAIMANTS
|- and -
|BARCLAYS BANK PLC
Lord Faulks QC and Mr Nicholas Fewtrell (instructed by Hill Dickinson LLP) for the Defendant
Hearing date: 11 July 2017
Crown Copyright ©
Mrs Justice Nicola Davies:
"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.
i) inappropriate breast examinations; and/or
ii) digital vaginal contact or penetration; and/or
iii) digital anal contact or penetration.
The claimants' case
"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  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'."
The defendant's case
Relevant legal principles
The scope of the duty: did Dr Bates owe a duty of care to the claimants for which the Bank can be vicariously liable?
"The Court of Appeal drew a correct analogy with the doctor instructed by an insurance company to examine an applicant for life insurance. The doctor does not, by examining the applicant, come under any general duty of medical care to the applicant. He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant."
The claimants submit that if Dr Bates was employed by the Bank to carry out health checks his duty to carry out such checks competently may only have been owed to the Bank and not to the claimants. The defence submit that the words of Lord Browne-Wilkinson were no more than obiter dicta. Undisputed is the fact that Dr Bates owed a duty to each claimant to carry out the examination without injuring the claimant intentionally or negligently. It is the claimants' case that Dr Bates did damage to each of the claimants in the course of the examination and thus the Bank is vicariously liable for any damage Dr Bates caused.
Vicarious liability for deliberate acts
"The law is mature enough to hold an employer vicariously liable for deliberate, criminal wrongdoing on the part of an employee without indulging in sophistry of this kind."
Scope of vicarious liability: the evolving case law
"…[vicarious liability] is not a static concept and has adjusted over the centuries to provide just solutions to the challenges of changing times. And times are still a-changing as McKendrick's article demonstrates. We need to adapt to the current demands. Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd  QB 510 has gone a long way to acknowledge that, for the purposes of establishing vicarious liability, the tortfeasor does not have to be an old-fashioned employee."
"That approach requires one to look for: (1) a relationship akin to employment; (2) which is established by a connection between D (defendant) and A (actor) which is sufficiently close so that (3) it is fair and just to impose liability on D. That gives rise to these questions: (1) given the unchallenged finding that there is no relationship of employer/employee in this case, can the law be extended to relationships 'akin to employment'? (2) Is the close connection test appropriate; and (3) is it enough that the result is just and fair?"
At  Ward LJ concluded:
"The result of each of the tests leads me to the conclusion that Father Baldwin is more like an employee than an independent contractor. He is in a relationship with his bishop which is close enough and so akin to employer/employee as to make it just and fair to impose vicarious liability. Justice and fairness is used here as a salutary check on the conclusion. It is not a stand alone test for a conclusion. It is just because it strikes a proper balance between the unfairness to the employer of imposing strict liability and the unfairness to the victim of leaving her without a full remedy for the harm caused by the employer's managing his business in a way which gave rise to that harm even when the risk of harm is not reasonably foreseeable."
Davis LJ gave a concurring judgment. Tomlinson LJ delivered a dissenting judgment.
"(1) was there a true relationship of employer/employee between D2 and D1? (2) was D1 acting in the course of his employment when he committed the tortious act?"
Lord Phillips agreed with the observations of Hughes LJ (as he then was) in the Court of Appeal judgment in the case namely that the test requires a synthesis of the two stages:
"i) The first stage is to consider the relationship of D1 and D2 to see whether it is one that is capable of giving rise to vicarious liability.
ii) … What is critical at the second stage is the connection that links the relationship between D1 and D2 and the act or omission of D1, hence the synthesis of the two stages."
"Stage 1: the essential elements of the relationship
34. Vicarious liability is a longstanding and vitally important part of the common law of tort. A glance at the Table of Cases in Clerk & Lindsell on Torts, 20th ed (2010) shows that in the majority of modern cases the defendant is not an individual but a corporate entity. In most of them vicarious liability is likely to be the basis upon which the defendant was sued. The policy objective underlying vicarious liability is to ensure, insofar as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread. It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability. Where the criteria are satisfied the policy reasons for imposing the liability should apply. As Lord Hobhouse pointed out in Lister at para 60 the policy reasons are not the same as the criteria. One cannot, however, consider the one without the other and the two sometimes overlap.
35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
iii) The employee's activity is likely to be part of the business activity of the employer;
iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
v) The employee will, to a greater or lesser degree, have been under the control of the employer.
The significance of control
36. In days gone by, when the relationship of employer and employee was correctly portrayed by the phrase 'master and servant', the employer was often entitled to direct not merely what the employee should do but the manner in which he should do it. Indeed, this right was taken as the test for differentiating between a contract of employment and a contract for the services of an independent contractor. Today it is not realistic to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee. Many employees apply a skill or expertise that is not susceptible to direction by anyone else in the company that employs them. Thus the significance of control today is that the employer can direct what the employee does, not how he does it.
Control and the transfer of vicarious liability
41. At para 16 May LJ, applying Mersey Docks, held that the enquiry should concentrate on the relevant negligent act and then ask whose responsibility it was to prevent it. Who was entitled, and perhaps theoretically obliged, to give orders as to how the work should or should not be done? The answer on the facts of the case was both the second and the third defendants. There was dual control and thus there should be dual vicarious liability."
In considering the specific issue of sexual abuse Lord Phillips stated:
"85. The precise criteria for imposing vicarious liability for sexual abuse are still in the course of refinement by judicial decision. Sexual abuse of children may be facilitated in a number of different circumstances. There is currently concern at the possibility that widespread sexual abuse of children may have occurred within the entertainment industry. This case is not concerned with that scenario. It is concerned with the liability of bodies that have, in pursuance of their own interests, caused their employees or persons in a relationship similar to that of employees, to have access to children in circumstances where abuse has been facilitated.
86. Starting with the Canadian authorities a common theme can be traced through most of the cases to which I have referred. Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link."
"15. Vicarious liability in tort is imposed upon a person in respect of the act or omission of another individual, because of his relationship with that individual, and the connection between that relationship and the act or omission in question. Leaving aside other areas of the law where vicarious liability can operate, such as partnership and agency (with which this judgment is not concerned), the relationship is classically one of employment, and the connection is that the employee committed the act or omission in the course of his employment: that is to say, within the field of activities assigned to him, as Lord Cullen put it in Central Motors (Glasgow) Ltd v Cessnock Garage & Motor Co 1925 SC 796, 802, or, adapting the words of Diplock LJ in Ilkiw v Samuels  1 WLR 991, 1004, in the course of his job, considered broadly. That aspect of vicarious liability is fully considered by Lord Toulson in the case of Mohamud.
16. It has however long been recognised that a relationship can give rise to vicarious liability even in the absence of a contract of employment. For example, where an employer lends his employee to a third party, the third party may be treated as the employer for the purposes of vicarious liability. In recent years, the courts have sought to explain more generally the basis on which vicarious liability can arise out of a relationship other than that of employer and employee.
17. The general approach to be adopted in deciding whether a relationship other than one of employment can give rise to vicarious liability, subject to there being a sufficient connection between that relationship and the tort in question, was explained by this court in the Christian Brothers case, in a judgment given by Lord Phillips with which the other members of the court agreed. That judgment was intended to bring greater clarity to an area of the law which had been unsettled by a number of recent decisions, including those of the House of Lords in Lister v Hesley Hall Ltd  UKHL 22;  1 AC 215 and Dubai Aluminium Co Ltd v Salaam  UKHL 48;  2 AC 366.
18. The case concerned the question whether the Institute of the Brothers of the Christian Schools, an international unincorporated association whose mission was to provide children with a Christian education, was vicariously liable for the sexual abuse of children by members of the institute, otherwise known as brothers, who taught at an approved school. Another organisation managed the school and employed the brothers as teachers. It had been held to be vicariously liable for the abuse. The issue was whether the institute was also vicariously liable. The Supreme Court held that it was. Vicarious liability was thus imposed on a body which did not employ the wrongdoers, in circumstances where another body did employ them and was also vicariously liable for the same tort."
Lord Reed identified the five factors set out by Lord Phillips in Catholic Child Welfare Society above and stated:
"20. The five factors which Lord Phillips mentioned in para 35 are not all equally significant. The first - that the defendant is more likely than the tortfeasor to have the means to compensate the victim, and can be expected to have insured against vicarious liability - did not feature in the remainder of the judgment, and is unlikely to be of independent significance in most cases. It is, of course, true that where an individual is employed under a contract of employment, his employer is likely to have a deeper pocket, and can in any event be expected to have insured against vicarious liability. Neither of these, however, is a principled justification for imposing vicarious liability. The mere possession of wealth is not in itself any ground for imposing liability. As for insurance, employers insure themselves because they are liable: they are not liable because they have insured themselves. On the other hand, given the infinite variety of circumstances in which the question of vicarious liability might arise, it cannot be ruled out that there might be circumstances in which the absence or unavailability of insurance, or other means of meeting a potential liability, might be a relevant consideration.
21. The fifth of the factors - that the tortfeasor will, to a greater or lesser degree, have been under the control of the defendant - no longer has the significance that it was sometimes considered to have in the past, as Lord Phillips immediately made clear. As he explained at para 36, the ability to direct how an individual did his work was sometimes regarded as an important test of the existence of a relationship of master and servant, and came to be treated at times as the test for the imposition of vicarious liability. But it is not realistic in modern life to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee; nor indeed was it in times gone by, if one thinks for example of the degree of control which the owner of a ship could have exercised over the master while the ship was at sea. Accordingly, as Lord Phillips stated, the significance of control is that the defendant can direct what the tortfeasor does, not how he does it. So understood, it is a factor which is unlikely to be of independent significance in most cases. On the other hand, the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.
22. The remaining factors listed by Lord Phillips were that (1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant, (2) the tortfeasor's activity is likely to be part of the business activity of the defendant, and (3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor.
23. These three factors are inter-related. The first has been reflected historically in explanations of the vicarious liability of employers based on deemed authorisation or delegation, as for example in Turberville v Stampe (1698) 1 Ld Raym 264, 265 per Holt CJ and Bartonshill Coal Co v McGuire (1858) 3 Macq 300,  UKHL 3_Macqueen_300, 306 per Lord Chelmsford LC. The second, that the tortfeasor's activity is likely to be an integral part of the business activity of the defendant, has long been regarded as a justification for the imposition of vicarious liability on employers, on the basis that, since the employee's activities are undertaken as part of the activities of the employer and for its benefit, it is appropriate that the employer should bear the cost of harm wrongfully done by the employee within the field of activities assigned to him: see, for example, Duncan v Findlater (1839) 6 Cl & Fin 894, 909-910; (1839) MacL & Rob 911, 940,  UKHL MacRob_911, per Lord Brougham and Broom v Morgan  1 QB 597, 607-608 per Denning LJ. The third factor, that the defendant, by employing the tortfeasor to carry on the activities, will have created the risk of the tort committed by the tortfeasor, is very closely related to the second: since the risk of an individual behaving negligently, or indeed committing an intentional wrong, is a fact of life, anyone who employs others to carry out activities is likely to create the risk of their behaving tortiously within the field of activities assigned to them. The essential idea is that the defendant should be liable for torts that may fairly be regarded as risks of his business activities, whether they are committed for the purpose of furthering those activities or not. This idea has been emphasised in recent times in United States and Canadian authorities, sometimes in the context of an economic analysis, but has much older roots, as I have explained. It was reaffirmed in the cases of Lister and Dubai Aluminium. In the latter case, Lord Nicholls of Birkenhead said at para 21:
'The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.'
24. Lord Phillips's analysis in the Christian Brothers case wove together these related ideas so as to develop a modern theory of vicarious liability. The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.
25. Lord Phillips illustrated the approach which I have described by considering two earlier cases in the Court of Appeal. He discussed first its decision in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd  EWCA Civ 1151;  QB 510. That case concerned a situation of a kind which commonly arises in modern workplaces. Employees of the third defendants were supplied to the second defendants on a labour-only basis, under a contract between the two companies, and worked under the supervision of a self-employed person also working under a contract with the second defendant. The question was whether the second defendant, as well as the third, was vicariously liable for the negligence of the employees in the course of their employment. The Court of Appeal agreed that it was, but for different reasons: May LJ considered that the imposition of vicarious liability depended on who had the right to control the employees' activities, whereas Rix LJ formulated a test which was based not on control, but on the integration of the employees into the employer's business enterprise. He stated that vicarious liability was imposed because the employer was treated as picking up the burden of an organisational or business relationship which he had undertaken for his own benefit. Accordingly, what one was looking for was 'a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence': p 537. Lord Phillips endorsed the approach of Rix LJ.
26. Lord Phillips next considered the decision of the Court of Appeal in E v English Province of Our Lady of Charity  EWCA Civ 938;  QB 722. In that case, a diocesan trust, treated as being equivalent to the diocesan bishop, was held to be vicariously liable for sexual abuse committed by a Roman Catholic priest when visiting a children's home in the diocese, on the basis that the relationship between the priest and the Roman Catholic Church was akin to employment. Lord Phillips summarised Ward LJ's approach as asking 'whether the workman was working on behalf of an enterprise or on his own behalf and, if the former, how central the workman's activities were to the enterprise and whether these activities were integrated into the organisational structure of the enterprise'. Ward LJ found it possible to describe the relationship between the bishop and the priest as being akin to employment, as Lord Phillips put it, 'by treating the ministry of the Roman Catholic Church as a business carried on by the bishop, by finding that the priest carried on that business under a degree of control by the bishop and by finding that the priest was part and parcel of the organisation of the business and integrated into it':  2 AC 1, paras 49, 54.
29. It is important, however, to understand that the general approach which Lord Phillips described is not confined to some special category of cases, such as the sexual abuse of children. It is intended to provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside relationships of employment. By focusing upon the business activities carried on by the defendant and their attendant risks, it directs attention to the issues which are likely to be relevant in the context of modern workplaces, where workers may in reality be part of the workforce of an organisation without having a contract of employment with it, and also reflects prevailing ideas about the responsibility of businesses for the risks which are created by their activities. It results in an extension of the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasor's activities are entirely attributable to the conduct of a recognisably independent business of his own or of a third party. An important consequence of that extension is to enable the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors which have nothing to do with the nature of the enterprises' activities or the attendant risks."
"44. In the simplest terms, the court has to consider two matters. The first question is what functions or 'field of activities' have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job. As has been emphasised in several cases, this question must be addressed broadly; see in particular the passage in Diplock LJ's judgment in Ilkiw v Samuels  1 WLR 991, 1004 included in the citation from Rose v Plenty at para 38 above, and cited also in Lister by Lord Steyn at para 20, Lord Clyde at para 42, Lord Hobhouse at para 58 and Lord Millett at para 77.
45. Secondly, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice which goes back to Holt. To try to measure the closeness of connection, as it were, on a scale of 1 to 10, would be a forlorn exercise and, what is more, it would miss the point. …"
i) Is the relevant relationship one of employment or "akin to employment"?
ii) If so, was the tort sufficiently closely connected with that employment or quasi employment?
Relevant to the determination of the first stage are the five policy criteria identified by Lord Phillips in Catholic Child Welfare Society at  and Lord Reed in Cox at [20-23]. It is accepted that the first and fifth criteria are not as significant as the second, third and fourth.
The claimants' case
Furtherance of business interests
Creation of risk
i) Stipulating to the claimants that they had to be seen by Dr Bates and only Dr Bates;
ii) Directing Dr Bates which patients he was required to see;
iii) Arranging that the claimants attended at Dr Bates' home as the place of examination;
iv) Making arrangements by paying the bus fare and giving directions for the claimants to attend Dr Bates' address;
v) Providing a clear template for the consultation.
The Bank stipulated the history which had to be taken from applicants, the precise nature of the examinations which had to be performed which included the physical measuring of the chest.
The nature of the conduct
The defendant's case
i) Dr Bates was not exclusively engaged by the Bank. He was self employed and his medical engagements were varied. He was in control of, and organised, his professional life. He was an "entrepreneur";
ii) Dr Bates did not examine patients at the Bank's premises but did so at his home where he had his surgery;
iii) The template used for his examinations was sent to him so that he could use his medical expertise to provide the information that the Bank required. His task was broadly similar to that carried out by independent doctors in a number of different contexts for example insurance, assessing fitness for travel, suitability for emigration and medico-legal purposes;
iv) Dr Bates had no contract of employment with the Bank. At any time they could have ceased to instruct him without any or any good reason. His examination and opinions were not in any way a part of the Bank's business which was banking.
Stage 1: Is the relevant relationship one of employment or "akin to employment"?
i) The defendant is more likely to have the means to compensate the victim than the tortfeasor and can be expected to have insured against that liability;
Underlying the concept of vicarious liability is the fact of two innocent parties and a balance having to be weighed. Dr Bates died some eight years ago, his estate has long since been distributed. The claimants have no recourse against Dr Bates, his medical defence insurers would not indemnify for alleged sexual assaults. The only legal recourse the claimants have is to sue the Bank for the vicarious acts of its tortfeasor. There is no issue that the Bank or its insurers have the means to meet such claims.
ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
An applicant's employment was conditional upon the Bank being satisfied, as a result of the medical examination, that the applicant was medically suitable for service in the Bank and was recommended for life insurance at ordinary rates. Dr Bates was the chosen doctor of the Bank. Prospective employees or existing employees were given no choice as to the doctor to be seen. The Bank made arrangements for the medical examinations, directing present or future employees where to go and when. The medical reports completed by Dr Bates were headed with the Bank's logo, signed by himself and by the relevant claimant. The claimants felt compelled to undergo the pre-employment examination because they understood (correctly) that it was an essential stage of the Bank's recruitment process. The claimants had no reason to be examined by Dr Bates other than their proposed or existing employment with the Bank. It was the Bank which paid for the examination not the claimant. The work carried out by Dr Bates was for the benefit of the Bank, to ensure that those who were employed by the Bank had the health to carry out its work. Given all of these facts I find that the medical examination, assessment of a claimant and subsequent report of the same to the Bank by Dr Bates was performed for the benefit of the Bank and on its behalf.
iii) The tortfeasor's activity is likely to be a part of the business activity of the defendant;
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. The medical assessment enabled the Bank to satisfy itself that a present or future employee was physically suitable for the work which they were, or were to be, employed to do. The requirement to undergo the medical examination emanated solely from the Bank, it was of no health benefit to the individual concerned. In providing a medical assessment and conclusion, namely that a claimant was physically suitable to be a member of its workforce, Dr Bates was acting for the benefit of the Bank and in so doing was an integral part of the business activity of the Bank.
iv) The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employee;
The Bank directed the claimant where to go for a medical examination. Many of the claimants were young girls, who were being seen and examined by a doctor they did not know. The claimant had no choice as to the doctor and was directed by the Bank to be seen and examined by him at his home. The Bank directed the doctor to perform a physical examination which included a chest measurement. The claimants, many of whom were 15 or 16, saw the doctor alone in his room when, as part of the medical examination, they were asked to remove clothing. In my judgment given the factual set of circumstances the Bank did create the risk of the tort which was allegedly committed by Dr Bates.
v) The employee will, to a greater or lesser degree, have been under the control of the employer;
The fact that Dr Bates organised his own professional life and carried out other medical activities does not negate an argument that he was under the control of the Bank. Were this to be a strict employer/employee situation the fact of part-time employment and/or whether the employee has one or more other jobs does not prevent an employer from being vicariously liable for acts or omissions occurring during the course of the employee's relevant employment. Further the fact that Dr Bates performed the examinations in his own home does not negate the "control" argument. An employer can be vicariously liable for the act of its employee, e.g. a driver, even though the alleged act or omission takes place outside the employer's premises. What has to be looked at is the control which existed as between the Bank and Dr Bates in respect of the identified activity namely medical assessments, examinations and reports.
Lord Reed in Cox agreed with Lord Phillips in Catholic Child Welfare Society in identifying the significance of control as being that the defendant can direct what the tortfeasor does not how he does it. This would be of particular relevance in this situation where the individual is conducting a medical examination and should be utilising his particular professional expertise and knowledge. It is of note that the Bank was directional in identifying the questions to be asked and the physical examinations to be carried out by the doctor for the purpose of completing the templated form. The control was of a higher level of prescription than might usually be found in the context of an examination required to be performed by a doctor. The control also manifested itself in directing the claimant to a particular doctor and giving the claimant no choice in the matter. I am satisfied that the Bank exerted sufficient control to satisfy this criterion. Accordingly the relevant criteria in respect of Stage 1 are met.
Stage 2: Was the tort sufficiently closely connected with that employment or quasi employment?
"…the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them…"
The claimants were in physical proximity to Dr Bates by reason of the nature of the examination. He was a doctor and, at the time of these offences, is likely to have been viewed by young women as being in authority not least because he was the doctor chosen by their present or prospective employer to carry out a medical examination relating to their employment. The sexual abuse took place when the doctor was engaged in the duties at the time and place required by the Bank. On the facts I find that the alleged sexual abuse was inextricably interwoven with the carrying out by the doctor of his duties pursuant to his engagement by the Bank. In the circumstances I find that the tort is so closely connected with that employment or engagement as to satisfy the second stage.