Living vicariously in Vicarious liability

As the decision of Various v Barclays Bank [2018] EWCA Civ 1670  heads to the Supreme Court in November an interesting case which addressed the  principle of vicarious liability in another medical context took an unexpected turn in the case of Brayshaw v Partners of Apsley Surgery [2018] EWHC 3286 (QB).

The claimant contacted the Apsley Surgery (“the practice”) on 17 August 2012, with low mood and feeling desperate. The locum GP, Dr Thomas O’Brien, spoke with her, raised with her issues of faith and later that day attended the claimant’s home, with his wife, to discuss religion as a “faith healer”.  The claimant thereafter accompanied them to church, restaurants and their log cabin whilst also  continuing to attend the practice in respect of her mental health issues. In January 2013, the claimant attended church as usual to experience something similar to an exorcism. Subsequent to this the claimant felt suicidal and developed a phobia of owls. The claimant alleged the O’Brien’s had indoctrinated her into their faith and encouraged her to stop her medication and attending psychiatric appointments. She said that that she suffered psychiatric harm as a result of the religious indoctrination. She made a complaint to the GMC as a result of which Dr O’Brien was struck off for having abused his position of trust. She then pursued a claim alleging that the treatment amounted to an intentional infliction of harm/harassment and that the practice was vicariously liable for Dr O’Brien’s behaviour.

Whilst Dr O’Brien was found to have been negligent and thus liable to the claimant for  illness due to that negligence, the Practice was not held vicariously liable. Justice Spencer considered the five criteria of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 in concluding Dr O’Brien was not an employee of the defendant but merely a locum GP – his activities beyond the initial consultation were determined to be outside of  the scope of the defendant’s practice.

As is often the case decisions turn on their own facts and this case is no different in that:

  1. Inconsistent evidence between the medical evidence and the evidence provided to the court was highlighted in the judgment
  2. Dr O’Brien was determined to be acting in his capacity as a friend and a Christian – not as a general practitioner
  3. Dr O’Brien did not provide such influence within the practice itself and,
  4. Dr O’Brien was likely to have had his own policy of insurance which might respond to the claim.

As ever the issue of vicarious liability remains a fluctuating and developing area and close attention will be needed in determining the extent of the relationship between the “employer” and the “employee”, the activities of the “employee”, the proximity of those actions to the proper role of the “employee”. The potential availability of more direct causes of action and sources of redress will continue to play a major role in these cases.

In an unfortunate postscript for the claimant Dr O’Brien challenged that proceedings have been validly served. Despite appointing agents to trace him the address identified and upon which proceedings were served was not deemed to be suitable for good service. The court held that information as to his address should have been requested from the GMC, as the practice had done, and so service was deemed ineffective. The claimant’s attempts to recover damages therefore will continue and may possibly now involve a negligence claim against her legal advisers.

Written by Ciara McReynolds at BLM

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