An Affair to Forget

picture of broken glass to illustrate broken relationshipIs there a duty of care to prevent an employee having an affair with a service user? No, according to the Scottish Outer House (the equivalent of our High Court) case of Shields v Crossroads (Orkney) [2013] CSOH 144.

Helen Shields was a carer for her husband and son who both suffered serious health problems. She herself was bi-polar and suffered from depression. Socially isolated and largely confined to the family home, she was struggling to cope.

She was referred by her local social services to the defendant which is a charity providing practical and emotional support to carers as well as information and advice to help improve their lives. It was recommended that she should be provided with respite care, information, support and advocacy services.

The provision of those services fell under the management of a Philip Bennett. After he had pursued her for some time (on her version of events which has yet to be challenged) an affair began. Later, he cooled towards her, ended the affair and resigned from the charity.

The nub of her case was that she was pressurised into the affair when Bennett knew her to be vulnerable and that the affair and its aftermath caused her psychiatric harm. She brought a claim for damages arguing that the charity owed her a duty to take reasonable care for her safety and that it was vicariously liable for Bennett’s negligent and deliberate misconduct.

Had Shields lacked capacity; either owing to her age or mental capacity, this would have been pretty uncontroversial. Bennett’s conduct would almost certainly have amounted to unlawful abuse of the type sadly so commonly reported.

Here, however, while perhaps vulnerable in a lay (non-legal) sense, she had full capacity and, albeit in the face of a seduction, willingly engaged in the affair. There was no suggestion that Bennett forced or induced her to have a sexual relationship with him by means of threats, duress or subterfuge.

While the case advanced was that Bennett engaged in a deliberate course of conduct that was either intended to cause her distress and psychological harm or with a complete disregard of the consequences to her psychological state and that he had a duty not to enter into a sexual relationship with her because of the position of trust he occupied and his knowledge of her psychological vulnerability, the Judge was not prepared to find such a duty existed.

To do so would be to extend the existing scope of tortious liability and the Judge found it “impossible to identify any basis on which it would be fair, just and reasonable for the common law to impose a duty of care on Mr Bennett not to enter into the relationship with [Mrs Shields]”

While acknowledging that it was no doubt misjudged and professionally wrong for Mr Bennett to have an affair with her, that was a long way from saying that it was actionably negligent for him to do so.

The Judge also considered that the charity would not be vicariously liable for his conduct in any case. As readers know well from previous posts, it is necessary to show that the conduct in question was sufficiently closely connected to the scope of employment before vicarious liability will bite.

Here, the Judge considered that Bennett’s conduct in entering into a sexual relationship was outside the scope of his employment. While the employment provided the opportunity for him to meet and attempt to persuade her to have an affair with him, the affair was not linked in any meaningful sense to the performance of his authorised employment duties. It was an independent personal venture of his own and was not closely connected to his employment.

This was a brave attempt to push the boundaries of the duty of care owed by those involved in supporting vulnerable but legally capable people and raises important questions about the extent to which advantage may sometimes be taken. It is probably unsurprising that the claim failed at first instance and it will be interesting to see if it is appealed.

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