The recent and unusual English case of Brayshaw v Partners of Apsley Surgery [2018] EWHC 3286 (QB) suggests that there may be some limits to the current trend of extending the scope of vicarious liability for personal injury claims.

1. Introduction

A claim for damages was made against a locum GP and the medical practice ("the Practice") at which he practised. It was alleged that the claimant suffered psychiatric injury because of the GP's actions. Although the GP was found liable for the injury; the claim against the Practice was dismissed, on the basis that the Practice was not vicariously liable for the GP's actions.

2. Vicarious Liability

Vicarious liability is a common law (case law) principle of strict, no-fault liability for wrongs committed by another person. For the principle to apply there must be a relationship between the wrongdoer and the party to be found vicariously liable and the actions of the wrongdoer must be sufficiently connected to that relationship.

Recent case law has demonstrated that vicarious liability extends beyond (i) traditional employer-employee relationships; Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670 and Grubb v Shannon (2018) SC GLA 13, and (ii) can trigger even when the wrongdoer's actions are not directly connected to their duties, Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339. It was in light of those cases that the vicarious liability of the Practice for a locum doctor was considered.

3. Background

The claimant was a long-standing patient of the Practice and had a complicated medical and psychological history. On 17 August 2012, the claimant contacted the Practice regarding these problems and was put in contact with a locum, Dr O'Brien. Dr O'Brien spoke with the claimant about her medical problems and at some point raised the issue of faith.

Dr O'Brien and his wife then called the claimant from their home to discuss religion as a solution for the claimant. Over subsequent months, the claimant and the family became close, with the claimant accompanying them to church, to restaurants and using their log cabin. Throughout this period, the claimant continued to seek medical help from other GPs at the Practice _ and continued to seek and receive conventional psychiatric treatment.

In January 2013, the claimant and the O'Briens attended a church ceremony where people shared their experiences with God. During a testimony, the claimant experienced something akin to an exorcism. Following this, the claimant felt physically sick, suicidal, and developed a phobia of owls. The claimant then separated herself from the O'Briens and the church, and divulged the details of her relationship with Dr O'Brien to another GP at the Practice.

4. Allegations

The claimant alleged that the O'Briens had religiously indoctrinated her into their Christian faith. It was alleged that throughout this process, the claimant was encouraged to stop taking her medication and to stop attending psychiatric appointments. The claimant also alleged she had suffered harassment and was told she was possessed by the Devil.

It was argued that the Practice should be found vicariously liable for the acts of Dr O'Brien as the events that gave rise to the claimant's psychological harm were "so closely connected" with Dr O'Brien's engagement as a locum GP, and occurred while Dr O'Brien was intermittently treating the claimant at the Practice.

5. Decision

The court found that Dr O'Brien's actions were negligent and had caused harm to the claimant.

However, the allegations that Dr O'Brien had harassed the claimant or instructed her to stop taking medication were rejected; with Justice Spencer finding that Dr O'Brien had himself prescribed the claimant medication during the relevant period, which was at odds with the claimant's allegations.

In rejecting the argument that the Practice was vicariously liable for the GP's actions, Justice Spencer referred to the five criteria for the application of vicarious liability set out in the Christian Brothers case ([2012] UKSC 56); namely it was noted that Dr O'Brien was not an employee "but merely a locum whose services were engaged at certain times for certain defined purposes"; that the negligent activities, after the initial encounter, all took place outside of the Practice; and that the activities of Dr O'Brien and his wife were no part of the business of the Practice. Justice Spencer stressed that "it cannot be said that, by engaging Dr O'Brien as a locum GP, the First Defendants [the Practice] thereby created or enhanced the risk of this particular tort (negligent act) being committed". Additionally, concerns were raised about the claimant herself, with extensive discrepancies found in her evidence to the court, with many statements entirely contradicting prior statements or the medical evidence.

6. Conclusion

Although some commentary following the judgment has expressed surprise at this decision given the recent expansion of vicarious liability, and in particular the Barclays case; Justice Spencer noted that, absent direct authority on vicarious liability for locum doctors, "it is necessary to stand back and look at the overall fairness and reasonableness of imposing vicarious liability". The court found that this case was more analogous with the law of agency than vicarious liability.

Importantly, Justice Spencer also noted that letters written by the claimant demonstrated her awareness that Dr O'Brien was not assisting in his capacity as a GP. In Justice Spencer's view, this confirmed that her engagement with the O'Briens was not in connection with the Practice or Dr O'Brien's role a medical man but rather with him as a friend and a Christian.

Given the evidence demonstrating the leading role taken by Dr O'Brien's wife , and that the negligence took place outside of the Practice, this decision can perhaps be distinguished from the recent stream of case law extending the scope of vicarious liability. That said, it is likely that Dr O'Brien had insurance and so there may therefore have been less motivation for the court to find against the Practice.

Had circumstances been different and had the claimant argued that the Practice created the risk of this harm by appointing the locum to a position of authority with access to vulnerable individuals; it is possible an alternative decision could have been reached. For that reason caution should be exercised when relying on this judgement in future cases; cases in relation to vicarious liability will turn on their own facts and the facts in this case were particularly unusual.


Lynn Livesey

Legal Director

Kate Donachie

Legal Director