Barclays Bank Plc v Various Claimants [2018] EWCA Civ 1670

[2018] EWCA Civ 1670

Case No B3/2017/2709

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2017] EWHC 1929 (QB)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Mrs Justice Nicola Davies DBE

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/07/2018

Before

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION

(SIR BRIAN LEVESON)

LORD JUSTICE McCOMBE

LORD JUSTICE IRWIN

Between

BARCLAYS BANK PLCAppellant

VARIOUS CLAIMANTSRespondents

Lord Faulks QC and Mr Nicholas Fewtrell (instructed by Keoghs LLP) for Appellant

Ms Elizabeth-Anne Gumbel QC and Mr Robert Kellar (instructed by Slater and Gordon LLP) for Respondents

Hearing Hearing date: 28 June 2018

Judgment Approved

Lord Justice Irwin :

Introduction

[1]This case is an appeal from the decision of Mrs Justice Nicola Davies DBE of 26 July 2017, respecting a preliminary issue. The claim is group litigation on behalf of 126 Claimants, who seek damages against Barclays Bank Plc (“the Bank”) in respect of sexual assaults to which they allege they were subjected by the late Dr Gordon Bates. The majority of the Claimants were applicants for employment with the Bank and the remainder were existing employees. In each case the Claimant was required to attend the consulting room of Dr Bates at his home. In each case, the Claimant alleges she was sexually assaulted by Dr Bates in the course of his examination. A group litigation order was made on 6 April 2016, and on 15 December 2016 the judge ordered that there should be a trial of a preliminary issue, namely:

“Whether the Defendant is vicariously liable for any assaults that any claimant may prove to have been perpetrated by Dr Gordon Bates in the course of medical examinations carried out at the request of the defendant either before or during their employment with the defendant.”

[2]Following examination of the facts and authority, Mrs Justice Nicola Davies concluded that vicarious liability was established. The Bank challenges that conclusion.

The Facts

[3]The facts are fully set out in the judgment of the court below. It is necessary for me only to summarise the salient findings of the judge which underpin her conclusion.

[4]Dr Bates was born in 1926 and died in 2009. He practised as a general practitioner until around 1968 but from then until 1984 or so he conducted medical examinations and assessments on behalf of the Bank for employees and prospective employees. Many of the Claimants were teenagers or very young women at the date of the examinations.

[5]Such medical examinations were made a requirement of the Claimants’ employment, or of the offer of employment. Dr Bates was often referred to as “the Bank’s doctor” or “our doctor”.

[6]I have indicated that the examinations were conducted by Dr Bates in a consulting room at his house. The examinations took place with the candidate on her own and without a chaperone, even if she attended along with a member of the family. It is the Claimants’ case, assumed to be so for the purpose of the preliminary issue, that Dr Bates required the individual to undress at least down to her underwear. The allegations made typically include inappropriate examinations of the breasts and/or digital contact or penetration of the anus or vagina.

[7]Dr Bates was provided with proforma examination forms by the Bank, headed with the Bank’s logo and entitled “Barclays Confidential Medical Report”. The report was completed and signed by Dr Bates and by the Claimant and was then returned to the Bank. If the report was satisfactory an offer of employment was made. Dr Bates was paid a set fee for each examination.

[8]In 2013, the police conducted an enquiry into at least 48 victims of alleged sexual assault by the late Dr Bates, with the conclusion that had Dr Bates been alive there would have been sufficient evidence to pursue a criminal prosecution. The Judge’s Approach

[9]The learned judge reviewed the competing submissions of the parties.

[10]The critical points advanced by the Claimants can be summarised as follows. The examinations served the Bank’s purposes, including reassurance that the individual concerned was medically suitable for service in the Bank, minimising the risk of health problems amongst their staff, and confirmation that Dr Bates would recommend acceptance of the individual for life assurance at ordinary rates. The proforma medical examination forms were produced in a standard fashion by the Bank and the content was dictated by the Bank. The benefit to those examined was the prospect of employment, or continued employment. The Claimants were all young, some very young, at the relevant time. If they wished to be employed by the Bank they had no option but to undergo the examination, and in respect of the minority who were existing employees, they were instructed to comply as part of their employment.

[11]The Claimants plead that the Bank was vicariously liable for the sexual assaults by Dr Bates on the basis either he was a direct employee of the Bank, or was in a role “akin to employment”, or on the basis that the relevant examinations took place because the Bank held out “Dr Bates as a competent and appropriate doctor to carry out a medical examination, but the Defendant required the examination to take place and the Claimants relied on this assurance to attend for an examination as required”. The Claimants also pleaded a direct duty of care on the part of the Bank, and/or a “non-delegable duty of care” in respect of these medical examinations. However, it was vicarious liability which was actively pursued before the judge and in this court.

[12]The Bank’s case before the court below can be summarised in the following way: the Appellant does not admit or deny the allegations of sexual abuse. The Bank denies that Dr Bates was ever an employee of the Bank or in a situation akin to employment. Rather it is averred that he was self-employed and engaged by the Bank as an independent contractor. Dr Bates himself would be liable for any assaults proved.

[13]The Appellant Bank filed witness statements which were considered. The evidence from Mrs Margaret Glendinning, who was responsible for recruiting female staff in the North East of England from 1966, confirmed that offers of employment to such candidates were made subject to a – “…satisfactory medical examination. The letter would include details of the time and venue of the examination. The candidate’s details were passed to a clerk who would arrange appointments with Dr Bates. A fee was payable to Dr Bates for each medical examination. Following the medical Dr Bates would return a standard report to the bank, completed and signed by himself and the candidates. Ms Glendinning would read the forms and if the medical was satisfactory the successful candidate would be offered employment”.

[14]There was a set fee for each medical examination for which Dr Bates would invoice the Bank. Mrs Glendinning could not recall any other doctor being engaged in this way, save for Dr Bates, during the relevant period, although there was some documentary evidence suggesting a very small number of such other examinations had taken place.

[15]The evidence from another witness for the Appellant, David Giles, confirmed that each local head office of the Bank was responsible for recruitment in its own local area and each had its own arrangements for such pre-employment medical examinations. A statement from an employee of Municipal Mutual Insurance in Newcastle recorded that Dr Bates would carry out medical examinations for the insurance company in respect of which he was paid a fee for each examination.

[16]Evidence from the son of the late Dr Bates dealt with the conditions and arrangements for examinations at the family house. Inter alia he confirmed that Mrs Glendinning, who organised the examinations for the Bank, would telephone the house to make arrangements during a period of recruitment but often the arrangements were made in fact by Dr Bates’s wife. He confirmed the fee for each examination would normally be settled by the Bank sending a cheque. During the period that Dr Bates was performing examinations for the Appellant Bank, he was also performing a similar service for a South African mining company and an insurance company.

[17]A sample report was before us, and before the judge, produced by Mrs Glendinning. The examinee has been anonymised. The pro forma required the doctor to take a family medical history and a personal medical history, including as to specific chest diseases and joint conditions. The examiner was directed to report on general appearance and build, basic dimensions, the applicant’s chest measurements at “Inspiration” and “Expiration”. Further, the doctor was directed to report on any “abnormalities” found in the Respiratory System, Cardiovascular System, “Abdomen (including Genito-Urinary System)”, Nervous System and Miscellaneous. One box on the form directed the doctor as follows:

“5. Female applicants only: Have you suffered from (a) Dysmenorrhea or any other menstrual disorder (b) miscarriage or disorder of pregnancy.”

Have you suffered from

[18]In the sample report provided, the candidate was 16 years old. Dr Bates has recorded in manuscript:

“Delay in onset of puberty. Normal development of secondary sexual characters (sic). Normal external genitalia. No evidence of any endocrine disturbance.”

[19]It will be evident from the last note that Dr Bates must have examined the candidate’s genitalia.

[20]The Judge summarised the submissions made to her, reviewed an extensive range of authority, and in the course of that review noted the evolution of case law in respect of vicarious liability. She laid emphasis on the observations of Ward LJ in E v English Province of our Lady of Charity

[2012] EWCA Civ 938

, and in particular his remark that the “law of vicarious liability had moved beyond the confines of a contract of service”: paragraph 73. She noted the similar observation of Lord Phillips in Catholic Child Welfare Society v Various Claimants

[2012] UKSC 56

at paragraph 19. She noted the approval Lord Phillips accorded to the analysis of Hughes LJ (as he then was) in the Court of Appeal judgment in that case, to the effect that the test requires – “…a synthesis of the two stages:(i) The first stage is to consider the relationship of D1 and D2 to see whether it is one that is capable of giving rise to vicarious liability.

(ii) … What is critical at the second stage is the connection that links the relationship between D1 and D2and the act or omission of D1, hence the synthesis of the two stages.”

[21]The judge went on to consider the recent decisions of the Supreme Court in two linked cases: Cox v Ministry of Justice

[2016] UKSC 10

, and Mohamud v WM Morrison Supermarkets Plc

[2016] UKSC 11

. She reviewed the judgment of Lord Reed in Cox, quoting extensively from that case, and considered also the judgment of Lord Toulson in Mohamud.

[22]The judge stated that she agreed with the submissions of both parties that the question involved a two-stage test:(i) is the relevant relationship one of employment or “akin to employment”?

(ii) if so, was the tort sufficiently closely connected with that employment or quasi-employment. She then turned to examine the instant case, set against the five criteria relevant to the first stage test, identified by Lord Phillips in Catholic Child Welfare Society at paragraph 35, and Lord Reed in Cox at paragraphs 20-23. These are (i) the employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer,

(iii) the employee’s activity is likely to be part of the business activity of the employer,

(iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee, and

(v) the employee will, to a greater or lesser degree, have been under the control of the employer. With that structure in mind, the judge turned to record her conclusions.

[23]The judge found the Bank was more likely to have the means to compensate the victims “and can be expected to have insured against that liability”. Dr Bates had died years before, his estate had long since been distributed, his medical defence insurers would not indemnify for alleged sexual assaults and the Claimants’ only legal recourse was to sue the Bank. There was no issue but that the Bank, or its insurers, had the means to meet the claims.

[24]As to the second criterion, she concluded that the tort was committed as a result of activity being taken by Dr Bates on behalf of the Appellant Bank. An applicant’s employment was conditional upon the Bank being – “…satisfied as a result of the medical examination, that the applicant was medically suitable for service … and was recommended for life insurance at ordinary rates. Dr Bates was the chosen doctor at the bank. Prospective employees or existing employees were given no choice as to the doctor to be seen. The bank made arrangements for the medical examinations, directing present or future employees where to go and when. The medical reports completed by Dr Bates were headed with the bank’s logo, signed by himself and the relevant Claimant. The Claimants felt compelled to undergo the pre-employment examination because they understood (correctly) that it was an essential stage of the bank’s recruitment process. The Claimants had no reason to be examined by Dr Bates other than their proposed or existing employment with the bank. It was the bank which paid for the examination… the work carried out by Dr Bates was for the benefit of the bank … given all of these facts I find that the medical examination assessment of a Claimant and subsequent report of the same to the bank where Dr Bates was performed for the benefit of the bank and on its behalf.”

[25]Considering the third criterion, the judge concluded that the tortfeasor’s activity was for the benefit of the Bank “and in so doing was an integral part of the business activity of the Bank”.

[26]In relation to the fourth criterion, the judge concluded that the employer “created the risk of the tort”: the Bank directed the Claimant when and where to go, and the Claimant had no choice in the conditions of examination:

“The Bank directed the doctor to perform a physical examination which included a chest measurement. The claimants, many of whom were 15 or 16, saw the doctor alone in his room when, as part of the medical examination, they were asked to remove clothing. In my judgment given the factual set of circumstances the Bank did create the risk of the tort...”

[27]Finally, on stage one of the test the judge considered the fifth question. Given the importance of this issue, I set down in full her judgment on the point:

“v) The employee will, to a greater or lesser degree, have been under the control of the employer; The fact that Dr Bates organised his own professional life and carried out other medical activities does not negate an argument that he was under the control of the Bank. Were this to be a strict employer/employee situation, the fact of part-time employment and/or whether the employee has one or more other jobs does not prevent an employer from being vicariously liable for acts or omissions occurring during the course of the employee's relevant employment. Further, the fact that Dr Bates performed the examinations in his own home does not negate the "control" argument. An employer can be vicariously liable for the act of its employee, e.g. a driver, even though the alleged act or omission takes place outside the employer's premises. What has to be looked at is the control which existed as between the Bank and Dr Bates in respect of the identified activity, namely medical assessments, examinations and reports. Lord Reed in Cox agreed with Lord Phillips in Catholic Child Welfare Society in identifying the significance of control as being that the defendant can direct what the tortfeasor does not how he does it. This would be of particular relevance in this situation where the individual is conducting a medical examination and should be utilising his particular professional expertise and knowledge. It is of note that the Bank was directional in identifying the questions to be asked and the physical examinations to be carried out by the doctor for the purpose of completing the templated form. The control was of a higher level of prescription than might usually be found in the context of an examination required to be performed by a doctor. The control also manifested itself in directing the claimant to a particular doctor and giving the claimant no choice in the matter. I am satisfied that the Bank exerted sufficient control to satisfy this criterion. Accordingly the relevant criteria in respect of Stage 1 are met.”

[28]The judge then turned to the Stage 2 of the test and concluded, because of the facts already recited, that the tort was closely connected with the quasi-employment of Dr Bates by the Appellant Bank. The sexual abuse would not have occurred otherwise, and adopting the words of Lord Phillips in Catholic Child Welfare Society “the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them …”.

[29]Finally, the judge considered whether the conclusions she had reached were “just and fair”, accepting that “this is a balancing exercise between two innocent parties”. Here she concluded that it was just and fair to uphold vicarious liability, in part because action against the Bank was the only possible legal recourse now available to the Claimants.

The Grounds of Appeal

[30]The Grounds of Appeal were expressed rather extensively, but can be summarised as follows. Ground 2 avers the judge wrongly concluded that Dr Bates’s relationship with the Bank was akin to employment. Under Ground 3, it is suggested the judge was wrong in that she failed to find that Dr Bates was an independent contractor. Ground 4 avers that the judge wrongly applied the law “to the undisputed facts”. Under this Ground it is said the judge was wrong to conclude:(1) that the assessment of relative means between the Bank and Dr Bates should have been reached as at the time of the alleged tort, not at the time of the litigation;

(2) that “the fact Dr Bates had carried out medical examinations for Barclays meant” that he was not an independent contractor;

(3) that the examinations were “integrated” into the Bank’s business;

(4) that the “engagement of Dr Bates” by the Bank “created a risk of abuse” and

(5) that the Bank “exercised control” over Dr Bates.

Submissions to this Court

[31]Neither side submitted to this court that Dr Bates had been an employee of the Bank. The Respondent simply sought to sustain the judge’s conclusion that the relationship was “akin to employment”, and that the judge had faithfully and properly applied the analysis set down in the linked cases of Cox v Ministry of Justice and Mohamud v WM Morrison Supermarkets to the facts of the case. Since the decision, that approach had been confirmed by the decision of the Supreme Court in Armes v Nottinghamshire County Council

[2017] UKSC 60

, which post-dated the judgment below in this case.

[32]The submissions on behalf of the Appellant Bank refined somewhat the written Grounds. Lord Faulks QC began by adopting the formulation of Hamblen LJ in giving permission to appeal, to the effect that there was “force in the contention that Dr Bates’s activity was not a sufficiently integral part of the business” of the Appellant, and that the decision had wide potential implications in respect of intentional torts committed by independent medical practitioners instructed by a range of organisations. From that starting point, Lord Faulks’s central proposition was that Dr Bates had been an independent contractor, and that the “defence” of that status had not been abolished or abrogated by any of the cited decisions, up to and including Armes.

[33]While expressing sympathy for any who had been assaulted, and expressing understanding that victims of such assaults often do not complain until much later in time, Lord Faulks noted that, had these matters come to light at or around the time of the alleged assaults, Dr Bates had assets which might have satisfied claims. Moreover, on the state of the law as it was then considered to be, there was no realistic prospect of the Bank being liable. Despite the declaratory nature of development in the common law, those factors should be borne in mind when considering liability.

[34]Lord Faulks conducted a review of the leading cases, and on that footing submitted that “one clear test” remained determinative of vicarious liability, namely the “independent contractor” test. In E v English Province at paragraph 69, Ward LJ giving the majority decision in favour of liability nevertheless stated “the law is clear: the employer is not vicariously liable for the torts of his independent contractor”. Although Ward LJ emphasised that vicarious liability had “moved beyond the confines of a contract of service”, that decision was founded on facts which showed the relationship between the Bishop and the tortfeasor priest was, if anything, closer than employment. Father Baldwin was “more like an employee than an independent contractor”: paragraph 81.

[35]Lord Faulks addressed the Catholic Child Welfare Society decision in similar terms. The Brother members of the two Orders in question had taken vows of obedience, poverty and chastity. They did not even retain control over their own incomes. Here too the relationships were closer, and the degree of control higher, than in a contract of employment: see the judgment of Lord Phillips at paragraphs 54 and 60. Moreover, the facts in that case represented a markedly higher risk to the children in the school than could be shown in the instant case. The children and the Brothers were all resident in the school grounds, and the Brothers had a high degree of control and authority over the pupils’ lives.

[36]Equally, although the prisoners working in the prison canteen under the management of the claimant in Cox v Ministry of Justice were not parties to a conventional contract of employment, as the Headnote of the case made clear, the prisoners were “on prison service pay”, and their activity was integral to the business activities of the prison, and thus the Defendant department. Certainly the case said nothing which suggested liability on the part of independent contractors. Lord Faulks cited the following from paragraph 29 of the judgment of Lord Reed in Cox:

“It [the decision] results in an extension of the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasor’s activities are entirely attributable to the conduct of a recognisably independent business of his own or of a third party.”

[37]In addressing Armes, the Appellants submitted that the decision was based on “a careful analysis of the complex statutory background giving local authorities responsibilities in relation to children in their area and in particular, their powers and duties in relation to foster placements”. There was nothing in that case to abrogate or diminish the “independent contractor defence”. For the persistence of that “defence” Lord Faulks relied on the decision of the Supreme Court in Woodland v Swimming Teachers Association

[2013] UKSC 66

[2014] AC 537

. I address that case below.

[38]In focussing on the facts, Lord Faulks emphasised that little was to be gained from the fact the Appellant was long of pocket: that could not found liability where it was not otherwise established. The medical examinations were not merely for the benefit of the employer: the prospective employee stood to gain employment and the benefit of life insurance. The examination was not part of the business activity of the Bank and it was “simply untenable” that the medical examinations were integrated into the business activity of the Appellant. The examination did not “create the risk” of sexual abuse any more than other medical examinations might be said to do. As the Appellant’s written submissions put it, unless the risk creation by such a defendant arose “wrongfully”, the concept was “essentially … meaningless”.

[39]The final criterion, that of control, should not have been held to be satisfied. There was no greater control here than was consistent with an independent expert (and independent contractor) giving his professional opinion. The same situation would arise with no meaningful distinction as to the degree of control, when a litigant went to be examined by a medical expert.

[40]Responding to those submissions, Ms Gumbel QC essentially stood over and commended the approach of the trial judge. It was an insufficient approach simply to consider the “label” of “independent contractor”. The court must look at the substance not the form. She emphasised the long continuing relationship between the Bank and Dr Bates, regularly described as “the Bank’s doctor”. She relied on the prescriptive heads in the pro forma, which required specific answers and which required, at least to some degree, an intimate examination of the young female applicants, who had no choice about being examined, and being examined by Dr Bates. This was a high degree of control by the Bank. It also represented a sufficient risk of assault. It was no part of establishing sufficient risk, for present purposes, that the Defendant should have been aware of a particular risk of this kind from Dr Bates: that would (if established) bear on direct negligence rather than vicarious liability. The examinations were thought by the Bank to be important for their recruitment process, a process which on any view was integrated with the business of the Bank. Finally, Ms Gumbel emphasised that this case could not and did not represent an extension of vicarious liability for such deliberate torts to all those who instruct medical experts. The case turned on its own facts, and essential ingredients for the establishment of vicarious liability would often be missing in other cases.

Analysis and Conclusions

[41]The law of vicarious liability has been developed – has been “on the move” – in recent time, most notably in the five critical decisions of: E v English Province of Our Lady of Charity; the Catholic Child Welfare Society; Cox v Ministry of Justice; Mohamud v WM Morrison Supermarkets;and Armes v Nottinghamshire County Council. The question is whether the law now supports the conclusion of Nicola Davies J on the facts.

[42]In the judgments in Cox and Mohamud, Lord Reed and Lord Toulson analysed the development of the law. In the former case Lord Reed focussed on the first question: the relationship necessary between the alleged tortfeasor and the defendant to found vicarious liability. In the latter, Lord Toulson explored the second question: in what manner must the conduct of the alleged tortfeasor “have to be related to that relationship” (see also Lord Reed in Cox: paragraph 2) to found vicarious reliability. The approach laid down in those two cases was explicitly approved and followed by the majority of the Supreme Court in Armes. It would be otiose (and potentially a field for needless argument) for me to repeat that analysis of the developing law.

[43]Accepting the approach laid down by the Supreme Court in those cases, it may be helpful to acknowledge that they address widely different factual situations. In no case was the alleged tortfeasor a party to a conventional contract of employment with the potential defendant. Neither was there in any of these cases an alleged tortfeasor who was an obvious “independent contractor”. To that extent I accept the submission of Lord Faulks that there has not been a decision which squarely addresses facts such as these.

[44]That said, I accept the submission of Ms Gumbel that the law now requires answers to the specified questions laid down in Cox and Mohamud, and affirmed in Armes, rather than an answer to the question: was the alleged tortfeasor an independent contractor? No doubt where the answers to the Cox/Mohamud questions are such that vicarious liability cannot be established, the relationship may often be that of independent contractor. But that question of definition appears to me no longer to be the test. If the Supreme Court had intended it to survive as such, it seems unlikely, given that formerly this was a decisive test, that the Court would have failed to say so.

[45]Moreover, it seems clear to me that, adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established. Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control. Such patterns are evident in widely different fields of enterprise, from construction, to manufacture, to the services sector. It is clear that Lord Reed had such changes in mind, see Cox, paragraphs 16 and 31.

[46]It may be helpful briefly to address two other authorities to which we were taken. In Woodland v Swimming Teachers Association

[2013] UKSC 66

[2014 AC 537, the claim in vicarious liability had been struck out, and the argument focussed on whether or not a non-delegable duty of care on the part of the education authority subsisted. As Lord Sumption made clear (paragraph 4) the case had “nothing to do with vicarious liability, except in the sense that it [the case] only arises because there is none”. Very few facts had been established before the legal issue was formulated and addressed in the case. The vicarious liability claim was struck out at least by October 2011, when Langstaff J gave his judgment. Thus, the claim was struck out before any of the critical five cases referred to above had been decided. While none of the “Cox/Mohamud” questions were asked, such facts as are recited in the case at least demonstrate very considerable control by the (undoubted) independent contractors, who ran and supervised the relevant swimming lesson at the pool of a different local authority. In my view, this case provides no basis for saying that there cannot be vicarious liability for the actions of an independent contractor.

[47]The Appellant also cited to us the recent authority of Kafagi

[2018] EWCA Civ 1157

. In that case there was an alleged assault by two bailiffs acting in execution of a County Court order. In the course of his leading judgment, Singh LJ asked the Cox/Mohamud questions and came to the conclusion, based on the answers, that there was no vicarious liability. The facts were easily distinguishable from those of the present case. In my judgment, the Appellants can draw no support from that case. It is notable that the bailiffs were very clearly independent contractors, but the court (of which I was a member) did not approach the case on that basis.

[48]I turn therefore to the approach of the judge to the questions she rightly sought to answer.

[49]In my view, the judge was obviously right to conclude that the Appellant had more means to satisfy the claims than had the (long distributed) estate of Dr Bates. She was also correct to give this matter little weight. No liability could be founded on this consideration alone.

[50]I reject the Bank’s submission that this question should be looked at as at the time of the torts. That would be impractical, cause satellite litigation and could operate to defeat rather than facilitate justice. Insofar as this question carries any weight, it must be considered as at the time of litigation.

[51]On the second criterion (was the activity being taken on behalf of the Bank?), the answer was clearly “yes”, as the judge concluded. I accept that the Bank wanted to employ people over the long term, and to arrange life insurance on their lives. On reflection, I accept that for most applicants it is right to say that the medical examination brought benefit to them, since it opened the door to employment. If no medical examinations had been required, they would of course have received that benefit anyway. Any applicant who failed the medical might have had the benefit of being alerted to a health problem. However, it is clear beyond doubt that the principal benefit was to the prospective employers, for whom this step tended to ensure fit entrants, able to give long service to the Bank. In my view the judge’s conclusion here was obviously correct.

[52]For the same reasons, this process was also a part of the business activity of the Bank. There could hardly be a clearer example of that than the selection of suitable employees for a responsible institution in the service sector.

[53]In my view, the judge was also correct in holding that the risk of the tort arose from the arrangements made by the Appellant. It is not necessary for me to repeat the factual findings made by the judge. However, it may be helpful to add a word about the approach to this criterion.

[54]It must be borne in mind (as the judge herself made clear in paragraph 47) that vicarious liability concerns the liability of an innocent party, or at least a party assumed to be “innocent” for present purposes, since a party may be negligent at the same time as being liable vicariously. It follows that the requirement under criterion (iv) does not need to amount to negligence, since it would then be redundant to approach the matter as one of vicarious liability. This must qualify the meaning of risk in this context. In my view, the judge was right to conclude that the criterion is satisfied if it is the potential defendant’s acts which put the claimant in a position of risk.

[55]On the facts of this case, it seems to me that is properly established. For present purposes I set aside questions of differing practice standards over time: the level of trust in professionals, increased consciousness of sexual abuse, more use of chaperones, and so forth. All these considerations would arise if the case turned on direct negligence. Here the question is simpler. The Bank specified the nature of the examinations (including expanded and deflated chest measurements), as well as specifying the time, place and examiner. Indeed, as the report quoted above makes clear, it was evident that at least some of the examinations included inspection of the girl’s genitalia. The variety of facts in negligence cases are legion. I accept that it may be argued these circumstances may less obviously give rise to the risk of tort than the long-term placement of children in a boarding school, in the care of supposedly celibate Brothers or priests. However, the risk seems to me, on these facts, to be perfectly properly established.

[56]It appears to me that criterion (v), the issue of the control exercised by the Bank over Dr Bates, is perhaps the most critical factor here. It is for that reason I have quoted fully from the judgment on this point in paragraph 27 above.

[57]It may be helpful to contrast the facts of this case, with a more usual medical examination conducted on behalf of others. Lord Faulks specifically raised the issue of deliberate torts by experts in litigation. It seems to me that even brief consideration will reveal obvious distinctions. It will be relatively rare for such an expert to conduct a general health examination, and rarer to do so against a standard formula set by the commissioning party. It will be rare for litigation experts to be asked to conduct intimate examinations of any kind, and very rare indeed to do so in relation to young and ostensibly fit individuals. Although there are cases (group litigation, and cases concerning very common injuries such as whiplash) where experts will be asked to examine and report on a considerable series of claimants, it will be rare for such examinations to be other than on a particular part of the body or a particular facet of mental health, and in all such cases the commissioning party will normally not be in a position to specify the particular tests, results or modes of physical examination to be performed. This does not seem to me a particularly helpful comparison, and it seems doubtful that the necessary degree of control over the medical expert would often be found.

[58]In the end, this matter turns on the particular facts. I accept that the judge was correct in her findings under this head and for the reasons she gave.

[59]Turning to the Stage 2 test, it seems to me that the judge was obviously correct that these medical examinations were sufficiently closely connected with the relationship between Dr Bates and the Appellants. They were the whole purpose of that relationship. Without them, the relationship would never have existed.

[60]As to the final question, whether the judge’s conclusions were just and fair, I also have no difficulty. There was nothing in her conclusions which indicated otherwise. The question of limitation is a separate question to be decided by other principles, and must be set aside from this consideration.

[61]I conclude with the following remarks. It is clearly understandable that a “bright line” test, such as is said to be the status of independent contractor, would make easier the conduct of business for parties and their insurers. However, ease of business cannot displace or circumvent the principles now established by the Supreme Court. Lord Faulks advanced the status of self-employed independent contractor as representing a “coherent principle of law”, thereby seeking to justify the maintenance of such a principle. The submission may be attractive at first blush. However, as has now become tolerably clear from the fields of employment and taxation law, establishing whether an individual is an employee or a self-employed independent contractor can be full of complexity and of evidential pitfalls. In my view, the Cox/Mohamud questions will often represent no more challenging a basis for analysing the facts in a given case. Lord Justice McCombe

[62]I agree

Sir Brian Leveson P

[63]I agree