QCR Autumn 2017: A case which may impact upon shipowners' liability for doctors instructed to carry out Pre-employment Medical Examinations, and for doctors onboard their ships.
Various Claimants -v- Barclays Bank plc (Dr Bates (deceased) and Barclays Group Litigation)  EWHC 1929 (QB)
Shipowners’ liability for doctors instructed to carry out Pre-employment Medical Examinations and doctors onboard their ships
The court was asked to determine by way of preliminary issue whether Barclays Bank should be held vicariously liable for alleged sexual assaults committed by an independently-contracted doctor during the course of pre-employment medical examinations going back 40 years. The claimants had applied for jobs at the Bank and, as a condition of their employment, had to pass a pre-employment medical examination. Dr Bates was independently contracted by Barclays to carry out these pre-employment medical examinations at his home and Barclays had similar arrangements with local doctors across the country. Dr Bates also contracted his services out to other businesses as well as to local hospitals. The doctor died in 2009, and therefore any claim against him personally was too late.
The court said that determination of the issue as to whether or not vicarious liability existed in a particular case involved a two stage test:
1) Is the relevant relationship one of employment or "akin to employment"?
The court applied 5 criteria and held that the medical examinations were purely for the benefit of the Bank and were a part of the Bank’s business activities. The purpose of the medical examinations was to ensure that the Bank had a healthy workforce, which was integral to its business activity. 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 Bank paid for the examination. The Bank had further created a risk of sexual assault by engaging Dr Bates to carry out examinations on their behalf. The court also considered that, as Dr Bates had died in 2009 and his professional indemnity insurance was unlikely to have covered intentional sexual assaults, the Bank can be expected to have taken out insurance against that risk and was more likely to have the means to compensate the claimants. With regards to the level of control which the Bank had over Dr Bates, the court found that the Bank had provided detailed instructions to Dr Bates regarding the nature of the physical examination to be conducted, which included an unusually detailed, Barclays-logo proforma for Dr Bates to complete.
2) If the answer to stage 1 above is yes, was the tort sufficiently closely connected with that employment or quasi employment?
The court found that the alleged sexual abuse was inextricably interlinked with the carrying out by the doctor of his duties pursuant to his engagement by the Bank. The assaults were committed during the course of medical examinations which Dr Bates had been instructed to carry out.
Finally the court considered that it was just, fair and reasonable to impose vicarious liability upon the Bank.
This decision represents another significant expansion of the scope of the law on vicarious liability in claimants’ favour. As the claimants had no recourse to Dr Bates or his medical defence insurers (who would not indemnify claims for alleged sexual assaults), the Court decided that it was just that the Bank should pay. A key consideration for the Court was the fact that the Bank had the resources to pay the claimants’ claims. This aspect of the Court’s decision is most worrying.
Shipowners who independently contract doctors to work onboard their vessels or to carry out crewmembers’ pre-employment medical examinations risk being found liable for any wrongdoing committed by those doctors during the course of the examinations. The implications for other independent contractors will depend on the application of the two-stage test but their risks of being found liable have also considerably increased as a result of this decision.
Crewmembers’ PEME is compulsory but the seafarer has a choice which clinic to attend and which doctor to see during the PEME. The seafarer makes an appointment himself with his chosen doctor.
It is however more difficult to see how a shipowner can protect himself from being sued by a passenger for a medical professional’s actions onboard.
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