Bank not vicariously liable for alleged sexual assaults


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The Supreme Court has held that Barclays Bank was not vicariously liable for sexual assaults committed by a doctor engaged to carry out medical examinations for prospective applicants in Barclays Bank plc v Various claimants.

The women involved in the claim had been asked to undergo pre-employment medical examinations between 1968 and 1984 with an independently contracted doctor, Dr Bates. 

The claimants had applied for jobs at the bank and, as a condition of their employment, had to pass a pre-employment medical examination.  Dr Bates was independently contracted by Barclays to carry out these examinations at his home.  The examinations were unchaperoned.

In 2015, 128 claimants brought claims against the bank, alleging that Dr Bates had sexually assaulted them during the examinations.  By this time Dr Bates had died, and the claims were no longer covered by his insurers.

The Court of Appeal had previously held that the assault had been committed as a result of activity being undertaken by the doctor on behalf of the bank, and the doctor was under the control of the bank as they could direct what he did, even if they didn't direct how he should do it.  It also found that there was a sufficiently close connection as the assaults were inextricably interwoven with the carrying out of the doctor's duties, and so Barclays was vicariously liable.  The Supreme Court disagreed.  It held that the doctor had been in business on his own account with a portfolio of patients and clients, which included the bank.  It followed that the bank was not vicariously liable for his wrongdoing.

Take note:  Following the decision in the Barclays case it is clear that an employer's relationship with a self-employed person who is genuinely in business on their own account will not attract vicarious liability in the event that the self-employment person commits a wrongdoing.

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