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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barclays Bank Plc v Various Claimants  EWCA Civ 1670 (17 July 2018)
Cite as:  EWCA Civ 1670
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mrs Justice Nicola Davies DBE
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
LORD JUSTICE McCOMBE
LORD JUSTICE IRWIN
| BARCLAYS BANK PLC
|- and -
Ms Elizabeth-Anne Gumbel QC and Mr Robert Kellar (instructed by Slater and Gordon LLP) for the Respondents
Hearing date: 28 June 2018
Crown Copyright ©
Lord Justice Irwin :
"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."
The Judge's Approach
"…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".
"5. Female applicants only:
Have you suffered from
(a) Dysmenorrhea or any other menstrual disorder(b) miscarriage or disorder of pregnancy."
"Delay in onset of puberty. Normal development of secondary sexual characters (sic). Normal external genitalia. No evidence of any endocrine disturbance."
"…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."
"…satisfied as a result of the medical examination, that the applicant was medically suitable for service … and was recommended for life insurance at ordinary rates. Dr Bates was the chosen doctor at 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 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… the work carried out by Dr Bates was for the benefit of the bank … given all of these facts I find that the medical examination assessment of a Claimant and subsequent report of the same to the bank where Dr Bates was performed for the benefit of the bank and on its behalf."
"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..."
"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."
The Grounds of Appeal
Submissions to this Court
"It [the decision] 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."
Analysis and Conclusions
Lord Justice McCombe
Sir Brian Leveson P