GKE v Brett Nigel Travers Gunning

A counsellor or well-being coach may owe a duty of care to an individual receiving services, regardless of the label applied to the role. The duty includes exercising the reasonable skill and care of a reasonably competent counsellor and avoiding words or conduct foreseeably harmful to a vulnerable client.

The Bolam standard applies to specialist counselling. Expert evidence on breach must come from a suitably qualified practitioner and address the relevant professional standard in context. Asking a non-specialist client to undress and masturbate during counselling, or to record masturbation for the counsellor, was unjustified and breached the duty.

The tort of intentionally causing harm by words requires intention to cause harm; recklessness is insufficient. Aggravated damages were unavailable where intention and physical assault were absent.

GKE claimed damages for psychiatric injury allegedly caused by Brett Nigel Travers Gunning during employer-funded well-being sessions and three privately funded counselling sessions in April 2018. The allegations included sexualised communications, inappropriate discussions, requests to undress and a request to masturbate and record the act.

The defendant denied the central allegations and disputed that he had been acting as a counsellor or therapist during the earlier sessions. The court considered duty of care, standard of care, breach, foreseeability, causation, the tort of intentionally causing harm by words and aggravated damages.

1. Liability in negligence. The claim succeeded in part. The defendant owed the claimant a duty of care during both the employer-funded coaching and the private counselling. The substance of the relationship, rather than its title, governed the analysis. The relationship involved proximity, vulnerability and an imbalance of power.
2. The applicable duty was to exercise the reasonable skill and care of a reasonably skilled counsellor, to act as such a counsellor would act in the circumstances, and not to use words which a reasonable counsellor would avoid. The standard was governed by Bolam, subject to the logical-basis requirement in Bolitho. The standard depended on the role being performed, not merely the defendant’s personal level of experience.
3. The claimant failed to prove breach in relation to most communications, the photographic journal, sexual advice, pornography recommendations, lubrication or discussions about underwear. The neuro-psychologist called by the claimant was not sufficiently expert in counselling or psycho-sexual counselling and had not adequately contextualised or reasoned those opinions.
4. In the third private session the defendant asked the claimant to undress, asked her to masturbate, offered to help and, after refusal, advised her to masturbate at home and record it for a later session. There was no therapeutic justification for that conduct. It created a foreseeable risk of personal injury and breached the duty of care. The defendant did not touch or assault the claimant.
5. The tort of intentionally causing harm by words was not established. Following O (a child) v Rhodes, recklessness did not satisfy the mental element. The defendant’s conduct was deliberate and reckless, but the court did not find an intention to cause harm. The court also declined to infer intention from verbal conduct in circumstances where negligence provided the applicable remedy.
6. No separate aggravated damages were awarded. The defendant’s conduct was not shown to be intentional or malevolent in the relevant sense, and there had been no physical assault or battery. Distress, humiliation and loss of trust were included in the compensatory award.
7. The claimant recovered £10,000 for pain, suffering and loss of amenity, £774 for past counselling and £1,320 for the legal costs of the professional conduct hearing, with interest. Claims for future therapy and Smith v Manchester damages were dismissed.