For my previous analysis of the Court of Appeal’s decision, please see here. It seems the Supreme Court agreed with me; perhaps they read my article? I’m going to assume so, and take some/most of the credit. Splendid, glad that’s settled.
In a group litigation claim 126 Claimants sought damages from Barclays Bank (“the Bank”) in respect of alleged sexual assaults committed by Dr Gordon Bates – who died in 2009 – between 1968 and 1984. The Claimants were prospective or existing employees with the Bank who attended unchaperoned medical assessments at Mr Bates’ home. A preliminary trial was ordered on whether the Bank was vicariously liable for his acts.
At first instance Nicola Davies J concluded it was. The Bank appealed to the Court of Appeal, represented by lead counsel Lord Faulks QC. Irwin LJ gave lead judgment dismissing the appeal. A further appeal to the Supreme Court followed with Lord Faulks QC once again leading the charge, this time with the added help of Katie Ayres (also of 1 Chancery Lane Chambers).
Lady Hale gave the Supreme Court’s unanimous decision. In her characteristically masterful fashion she carefully considered the authorities before concluding the appeal must be allowed. It is a judgment worth reading in full, for its excellent analysis and eminently sensible application of ‘legal principles vs factual matrix’ (an exercise which, respectfully, the Court of Appeal got horribly wrong).
The law is such that there must be a relationship between the putative primary and secondary tortfeasors which warrants making the latter liable for the acts of the former. Historically this was restricted to employers and employees, however it now incorporates certain relationships “akin to employment”. The historically restrictive test has been weakened in recent years in decisions such as Cox and Armes, extending vicarious liability to prisoners and foster carers respectively.
Lord Phillips in Christian Brothers identified five factors to consider when considering whether a given relationship is akin or analogous to employment. Lady Hale went through these in turn, highlighting that Dr Bates was in business on his own account, was not paid a retainer, was free to refuse to conduct an offered examination, and no doubt had his own medical liability insurance. Moreover, significantly, he did work for Barclays – which made the arrangements for the medical examinations and chose the questions to which it wanted answers – but much the same would be true of window cleaners or auditors. As such this relationship, between the Bank and Dr Bates, was not of the right nature.
On a side note, and as hinted before, Lady Hale’s retirement is a great loss to our legal system and her combination of sublime intellect and earthly empathy will be sorely missed.