Factual and Procedural Background
This case is an appeal from the decision of Judge Davies dated 26 July 2017 concerning a preliminary issue in group litigation involving 126 Claimants. The Claimants seek damages against Company A for sexual assaults allegedly perpetrated by the late Dr Bates during medical examinations conducted at his home. Most Claimants were applicants for employment with Company A, while others were existing employees. Each was required to attend Dr Bates’s consulting room, where the assaults are alleged to have occurred during medical examinations. A group litigation order was made on 6 April 2016, and on 15 December 2016 a preliminary issue was ordered to be tried: whether Company A is vicariously liable for any assaults proven to have been committed by Dr Bates in connection with medical examinations carried out at Company A’s request before or during employment.
Dr Bates was a general practitioner who, from circa 1968 to 1984, conducted medical examinations for Company A’s employees and prospective employees. The examinations were mandatory for employment or continued employment, carried out in Dr Bates’s home without chaperones, often involving intimate examinations of young female Claimants. Company A provided proforma medical report forms bearing its logo, which Dr Bates completed and returned. Dr Bates was paid a set fee per examination. A police inquiry in 2013 found sufficient evidence to prosecute Dr Bates had he been alive.
Procedurally, the trial judge concluded that Company A was vicariously liable for Dr Bates’s torts. Company A appealed this conclusion.
Legal Issues Presented
- Whether Company A is vicariously liable for sexual assaults committed by Dr Bates during medical examinations conducted at Company A’s request.
- Whether Dr Bates was an employee of Company A or engaged in a relationship "akin to employment" sufficient to impose vicarious liability.
- Whether the torts were sufficiently connected to Dr Bates’s relationship with Company A to establish vicarious liability.
- Whether the judge correctly applied the legal tests for vicarious liability, including the relevance of control, integration into business, and risk creation.
Arguments of the Parties
Appellant's Arguments
- Dr Bates was not an employee or in a relationship akin to employment but was an independent contractor engaged by Company A.
- The judge erred in concluding that Dr Bates’s activities were an integral part of Company A’s business.
- The judge wrongly found that Company A created the risk of the assaults and exercised sufficient control over Dr Bates.
- The “independent contractor” defence remains valid and was not abrogated by recent case law.
- Company A did not have sufficient control over the manner in which Dr Bates conducted examinations, which were professional medical assessments.
- The medical examinations benefited the prospective employees as well as Company A, undermining the claim that the activities were solely for Company A’s benefit.
Respondent's Arguments
- The relationship between Dr Bates and Company A was “akin to employment” and satisfied the legal tests for vicarious liability as developed in recent Supreme Court decisions.
- Company A exercised a high degree of control over Dr Bates, including prescribing the content and manner of examinations and requiring Claimants to attend him exclusively.
- The medical examinations were an integral part of Company A’s business, essential to recruitment and employment processes.
- Company A created the risk of the torts by directing the conditions and nature of the medical examinations.
- The case does not represent a broad extension of vicarious liability to all medical experts but turns on its particular facts.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| E v English Province of Our Lady of Charity [2012] EWCA Civ 938 |
Vicarious liability extends beyond traditional employment contracts; test involves relationship and connection to tort. |
Emphasised the two-stage test for vicarious liability and noted that the law has moved beyond strict contract of service. |
| Catholic Child Welfare Society v Various Claimants [2012] UKSC 56 |
Clarified the test for vicarious liability including “akin to employment” relationships and the connection between tort and relationship. |
Applied the five criteria for “akin to employment” relationships and the connection test to the facts. |
| Cox v Ministry of Justice [2016] UKSC 10 |
Developed the two-stage test for vicarious liability; emphasised the significance of control and risk creation. |
Adopted the test to assess whether Dr Bates’s relationship with Company A gave rise to vicarious liability. |
| Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 |
Further refined the connection test between tort and employment-like relationship. |
Supported the application of the connection test to deliberate torts committed by persons in an employment-like relationship. |
| Armes v Nottinghamshire County Council [2017] UKSC 60 |
Confirmed the approach to vicarious liability in non-traditional employment contexts and the application of the two-stage test. |
Confirmed the trial judge’s approach and the applicability of the test in analogous factual scenarios. |
| Woodland v Swimming Teachers Association [2013] UKSC 66 |
Addressed non-delegable duties and clarified that vicarious liability claims require established relationships. |
Held that vicarious liability can exist for independent contractors under certain conditions; did not preclude vicarious liability here. |
| Kafagi [2018] EWCA Civ 1157 |
Applied Cox/Mohamud test to bailiffs acting under court orders; no vicarious liability found. |
Distinguished from present case; no support for appellant’s position as facts were different and bailiffs were independent contractors. |
Court's Reasoning and Analysis
The court applied the two-stage test for vicarious liability as established in the leading authorities: first, whether the relationship between Company A and Dr Bates was one of employment or akin to employment; second, whether the tort was sufficiently connected to that relationship.
Regarding the first stage, the court considered five criteria: (i) Company A’s means to compensate and insure against liability, (ii) whether Dr Bates acted on behalf of Company A, (iii) whether his activities were integral to Company A’s business, (iv) whether Company A created the risk of the tort, and (v) the degree of control Company A exercised over Dr Bates.
The court found that Company A had the means to compensate and insure, whereas Dr Bates’s estate had long been distributed and his insurers would not indemnify for these claims. The medical examinations were conducted exclusively for Company A’s benefit, as a condition of employment or continued employment, with no choice given to Claimants regarding the doctor or examination conditions. The examinations were integral to Company A’s recruitment and employment processes, thus part of its business activity.
Company A created the risk of the tort by specifying the nature, timing, and venue of the examinations and requiring intimate examinations without chaperones. The court emphasized that this risk did not require Company A’s knowledge of the abuse, as vicarious liability concerns the innocent party’s responsibility for risks it creates.
Control was found to be sufficient despite Dr Bates’s professional independence and the examinations being conducted at his home. Company A dictated the examination content via proforma forms, directed Claimants to Dr Bates exclusively, and required compliance as employment condition. This amounted to a high degree of control relevant to vicarious liability.
On the second stage, the torts were closely connected to Dr Bates’s quasi-employment by Company A, as the assaults occurred in the course of the medical examinations which were the entire purpose of their relationship.
The court rejected the appellant’s reliance on the “independent contractor” status as a decisive test, noting that recent case law requires a nuanced application of the two-stage test rather than a strict independent contractor defence.
The court also considered the policy implications and fairness, concluding it was just and fair to impose vicarious liability on Company A, especially as it was the only viable source of compensation for the Claimants.
Holding and Implications
The court UPHELD the decision that Company A is vicariously liable for the sexual assaults committed by Dr Bates during medical examinations conducted at Company A’s request.
The direct effect is that Company A is responsible for compensating the Claimants for proven torts. The decision does not establish a broad precedent extending vicarious liability to all independent contractors or medical experts but confirms that where the relationship is akin to employment and the tort is closely connected to that relationship, vicarious liability may be imposed. The ruling clarifies the application of the two-stage test and rejects the independent contractor status as a conclusive defence in such contexts.