The Supreme Court has today ruled that Barclays Bank is not liable for the alleged sexual assault of more than 100 patients by a doctor carrying out medicals on the bank’s behalf.
In its judgment, the court overturned earlier rulings that the bank was vicariously liable for any assault proven to have been carried out by Dr Gordon Bates, who died in 2009 aged 83.
The test case arose out of a damages action brought by a group of 126 claimants, who cannot be named for legal reasons, who claimed they were assaulted by the doctor. The issue examined was whether an employer was “liable for sexual assaults committed by a medical practitioner in the course of medical examinations carried out at the employer’s request, either before or during the claimant’s employment”.
The Court ruled that Bates was “a classic independent contractor” and the person engaging him was “not vicariously liable”.
Commenting on the case, Alastair Gillespie, partner at Keoghs, the law firm which acted for the bank and its insurers, says:
“Insurers, practitioners and any organisation that engages independent contractors of whatever type, from auditors to window cleaners, will breathe a huge sigh of relief. The independent contractor sits outside the scope of vicarious liability.
“The position is, in essence, what it had always been understood to be before this litigation began to move through the courts. We have welcome clarity on stage 1 of the test. Should the Court of Appeal judgment have been upheld, it would have created a myriad of problems not least that, in the absence of an independent contractor defence, a ‘fair, just and reasonable’ test would have to be undertaken in every single scenario where there was no formal contract of employment.
“That would also have left practitioners in the situation of applying Lord Phillips’ criteria as though they were a specific set of legal tests, when in fact they are policy reasons. And of course that exercise would have to be carried out not only in cases of non-recent abuse, but across every class of risk in which an independent contractor might be involved. That would have been a nightmare scenario not only for insurers and advisers but also for underwriters having to apply their minds to how far a risk might extend.
“Instead, thanks to this lucid and authoritative judgment the bright line of the independent contractor defence, which was feared to have been dimmed to the point of invisibility, remains very much in force and will continue to shed light where the Court of Appeal would have cast so much darkness.
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