Brayshaw v The Partners of Apsley Surgery & Anor

A doctor may owe a direct duty of care where, knowing a patient's psychological vulnerability, he exposes her to an unreasonable and avoidable risk of psychiatric harm through religious activity connected with his professional relationship. The court must identify the particular conduct causing the damage and assess foreseeability in its factual and relational context.

Intentional infliction of harm requires unjustified conduct, an intention to cause severe distress or illness, and resulting psychiatric illness. Harassment requires an unwelcome course of conduct meeting the statutory threshold. Vicarious liability does not ordinarily arise where a locum doctor's tort consists of private religious proselytisation outside the medical practice and unrelated to its business activities.

The claimant, a patient of a GP surgery, alleged that a locum doctor used his position to introduce her to religious practices and that the resulting events caused psychiatric injury. She advanced claims for intentional infliction of harm, harassment under the Protection from Harassment Act 1997, and negligence. She also alleged that the GP practice was vicariously liable.

The court made independent findings of fact, distinguishing the doctor's religious activities from the claimant's continuing medical treatment. The central issues were whether the doctor's conduct constituted a tort and, if so, whether the practice was vicariously liable for it.

1. Intentional infliction of harm. The claim failed. The claimant had to establish unjustified words or conduct, an intention to cause severe distress or illness, and resulting psychiatric illness. The evidence indicated that the doctor's misguided purpose was the claimant's perceived spiritual and mental well-being, rather than an intention to cause harm. The proved conduct was therefore outside the scope of the tort.
2. Harassment. The claim under sections 1 and 3 of the Protection from Harassment Act 1997 failed. The statutory concept involved conduct that was unwelcome and amounted to harassment, with a course of conduct requiring at least two occasions. The claimant had initially embraced the religious attention, and the evidence did not establish that the psychiatric deterioration resulted from conduct amounting to harassment.
3. Negligence. The doctor owed the claimant a duty not to expose her to an unreasonable and avoidable risk of psychiatric harm. Given his knowledge of her psychological vulnerability, it was negligent to expose her to the religious meeting of 12 January 2013, when an adverse reaction was foreseeable. His zealous promotion of religious activity caused or contributed to the deterioration in her mental health. The doctor was liable in negligence for the resulting psychiatric damage.
4. Vicarious liability. Applying the relationship and connection analysis in Cox v Ministry of Justice [2016] AC 660 and the factors identified in Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1, the practice was not vicariously liable. The doctor was an independently engaged locum, the negligent activity occurred away from the surgery, religious proselytisation was not part of the practice's business, and engaging him as a locum did not create or enhance the relevant risk. Lister v Hesley Hall Ltd [2002] 1 AC 215 was distinguishable. The close-connection approach in Dubai Aluminium v Salaam [2003] 2 AC 366 did not extend to this activity.
5. Judgment was entered for the claimant against the second defendant for £12,712.50, including interest. The claim against the first defendants was dismissed.