Nicola Davies J. has ruled that Barclays Bank is vicariously liable for alleged sexual assaults on 126 women committed between 1968 and 1984 by a Dr. Bates, to whom the Bank sent prospective employees for pre-employment medical assessments.
The judge relied on dicta from Catholic Child Welfare Society v Various Claimants  2 AC 1, in which the (unincorporated) Institute Brothers of the Christian Schools were held vicariously liable for sexual abuse by members at an approved school: Lord Phillips had approved a test involving the “synthesis” of two stages to consider (1) whether the relationship between D1 and D2 (the perpetrator) was one capable of giving rise to vicarious liability; and (2) the connection which links the relationship between D1 and D2.In relation to stage (1) Lord Phillips set out 5 criteria which “usually” made it “fair just and reasonable” to impose vicarious liability on an employer:
The judge, observing that the law of vicarious liability was “on the move”, said these criteria applied here. She ruled Dr. Bates’ position to be “akin to employment”, even though he was an independent GP.
The decision is surprising and potentially far reaching, if there is no appeal. The policy (and limiting principle) behind making anyone vicariously liable requires that it must be “fair just and reasonable” to do so. This involves a value-judgment in a difficult area of the law. It was no part of the judge’s reasoning that there were numerous alleged victims. An employer may well find himself liable now if he asks a single prospective employee to be examined by a GP, who then abuses her. Could this not also apply when an insurer asks a person to be medically examined who then is abused? It is difficult to think that such a result is “fair, just or reasonable”.
Lawrence Caun / 25th Sep 2017
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