Media By: Robert Kellar QC


Vicarious liability — the new boundary dispute

3 April 2020 by

Image: The Guardian

In the Christian Brothers case Lord Phillips of famously declared that “the law of vicarious liability is on the move”. The recent decision of the Supreme Court in Barclays Bank v. Various Claimants [2020] UKSC 13 has brought that movement to a juddering halt. The question posed by the appeal was a simple one. Is it possible to be vicariously liable for the acts of a self-employed ‘independent contractor’? The answer the Court gave in this case was ‘no’.

Factual Background

The group litigation concerned the vicarious liability of Barclays for sexual assaults in the 1970s and early 1980s. The alleged assaults were committed in the North East by a now deceased general practitioner: Dr Bates.

Dr Bates was a self-employed medical practitioner with a portfolio practice. His work included conducting medical assessments and examinations of prospective Barclays employees. Barclays required job applicants – many of them aged 16 or under –  to pass pre-employment medical examinations as part of its recruitment procedures. Barclays arranged the appointments with Dr Bates and provided him with a pro forma report headed “Barclays Confidential Medical Report”. Dr Bates was paid a fee for each report. If the report was satisfactory, the applicant’s job offer would be confirmed, subject to satisfactory GCE examination results. 

Dr Bates conducted the (unchaperoned) medical examinations in a consulting room at his home. It was alleged that Dr Bates sexually assaulted 126 claimants in the group action during their medical examinations. After Dr Bates died in 2009, the claimants sought damages from Barclays.


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The death of the ‘right to silence’ in regulatory proceedings?

9 August 2019 by

Two recent cases have important consequences for regulated professionals who fail to participate in regulatory hearings. In Kuzmin v. GMC [2019] EWHC 2129 (Admin) the issue was whether a tribunal can draw adverse inferences if a doctor declines to give evidence. Sanusi v. GMC [2019] EWCA Civ 1172 concerned the tribunal’s duty of procedural fairness where a professional fails to attend the hearing at all.

Kuzmin v. GMC

Background

The Claimant was a GP who faced an allegation of dishonesty. It was alleged that he had failed (dishonestly) to draw his employer’s attention to conditions imposed by the Interim Orders Tribunal. The doctor failed in his half-time submission of no case to answer. The doctor then indicated that he would not be giving any evidence and applied to withdraw his witness statement.  The GMC sought a preliminary ruling that, as a matter of principle, the Tribunal had the power to draw adverse inferences in such circumstances. The Tribunal agreed, whereupon the Claimant sought an adjournment and applied for judicial review. 


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