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No new duty not to enter into personal relationships

Sassi v Dickens and Home Group ltd t/a Stonham
Sunderland County Court
4.6.15

Andrea Ward and Joanne Kingsland consider a recent first instance decision in which the court declined to impose a new duty of care on a support worker not to enter into a personal relationship with a client. 

Facts

The claimant is an adult with a complex history of emotional abuse and neglect in childhood, a rape in early adulthood and a victim of domestic violence leading to her suffering from long standing depression and anxiety.

The second defendant is a company (“the company”) providing housing related support to vulnerable people to help them to live independently. This support includes debt advice, help to find tenancies and specific support for people with learning disabilities and mental ill health problems. The service does not, however, provide any care or counselling.

In 2006 the claimant made contact with the company for help completing an application for Disability Living Allowance (DLA). At that time she was seen by a female worker who helped complete the form with details of her mental health problems. The worker was also made aware that the claimant was nervous around men and did not like to sit next to them.

The claimant contacted the company again for similar help in 2009. She telephoned and spoke to the first defendant, “Mr D” who was employed by the company as a Tenancy Support Worker. The female worker was not available so Mr D offered to help and the claimant accepted that offer. He visited her at home to help complete the forms which again included details of her mental health problems. This work was completed by July 2009. After that date the claimant attended a number of workshops run by the company. She was given lifts to these workshops by Mr D but he was not involved in giving her any further support. The last such workshop took place in February 2010.

In March 2010 the claimant and Mr D entered into a sexual relationship which he broke off in May of the same year. In October 2010 the claimant made a complaint to the company. The complaint was investigated and Mr D was found to be in breach of the company’s Code of Conduct which states that employees should not enter into personal relationships with clients. As a result of the investigation he was dismissed for gross misconduct.

The claim

The claimant brought the claim on the basis that Mr D owed her a duty of care in negligence which he breached by entering into a personal and sexual relationship with her and that the company was vicariously liable for the breach of its employee. The allegations of negligence against Mr D were that:

  • The company’s Code of Conduct prohibited him from entering into sexual relations with the claimant;

  • The claimant was vulnerable in the sense that she was less able to resist entering into a sexual relationship with Mr D and so was at risk of exploitation by him;

  • Mr D knew of this vulnerability.

As matters of fact, the claimant alleged that she was a client or service user of the company at the time, that she had been vulnerable prior to entering into the relationship, that Mr D had used his position as a tenancy support worker to engage the claimant in a sexual relationship and that the relationship itself, rather than its ending, resulted in her suffering Post Traumatic Stress Disorder leaving her in need of care and therapy. This arose, she said, because Mr D lied and deceived her during the course of the relationship.

Findings of fact

Recorder Rawlings found that:

  • the claimant was a client or service user of the company up to and including February 2010.

  • the claimant had been vulnerable before the relationship but was much better than she had been in previous years. Her treating consultant clinical psychologist, Mr Beattie said that she had reported feeling ready to go back to work and to enter into a relationship a few months earlier. He also confirmed that she had been happier than she had been for long time whilst the relationship was ongoing so that her distress was caused by its breakup rather than the relationship itself. By March 2010, she was not “vulnerable” in that she was not, by reason of her mental health, less able to consider and weigh the risks of entering into a relationship with Mr D, than an individual of comparable age, not suffering from mental health problems.

  • Mr D knew of the claimant’s vulnerabilities from completing her DLA application but he was not a medical expert and would not have known that she would react any differently to any other person following such a break up.

  • Mr D did not have any authority or influence over the claimant in helping with her DLA application nor was there a relationship of trust between them. His role simply gave him opportunity to meet with the claimant and her decision to enter into the relationship was consensual.

Was there a duty of care owed?

So did Mr D owe any duty of care to the claimant as a result of this set of circumstances?

Recorder Rawlings noted the common ground between counsel that there was no precedent for a case like this and that the court would have to impose a new duty of care to find in favour of the claimant.

The test for determining whether there should be a new duty of care can be found in the House of Lords decision of Caparo Plc v Dickman [1900] which set out three criteria to be met:

  • Foreseeability that the acts or omissions may cause loss or injury to the claimant;

  • Sufficient proximity between the claimant and defendant;

  • That it is fair, just and reasonable that the law should impose such a duty on the defendant in all the circumstances.

Counsel for the company conceded that the first two criteria did apply in this case but argued that it would not be fair, just and reasonable to impose a duty in this case. He submitted that the claimant was of full age and capacity, that she freely consented to the sexual relationship and that it would run contrary to the principle of English law for such a person who had voluntarily undertaken such an act or risk to be in a position to successfully sue the party who carried out that act with their consent, unless there were exceptional circumstances. (An example given of an exceptional circumstance was a case where a vulnerable man on suicide watch in police custody took his own life. In that case, Commissioner of Police for the Metropolis v Reeves (2000), it was found that the police had an “exceptional control” over the deceased while he was in custody which was not the case in the relationship between the claimant and Mr Dickens.)

The Recorder agreed with this contention, that there were no exceptional circumstances and that there was no duty on Mr D not to enter into a relationship with the claimant.

The claimant had asserted that she was “vulnerable” to being exploited by Mr D by reason of her mental health and that he was aware of this. However, her acceptance that she, at all relevant times, had mental capacity necessarily involved an acceptance by her (in accordance with the definition of mental capacity in the Mental Capacity Act 2005) that she was able to weigh the risks of becoming involved in a sexual relationship with Mr D and to make a decision as to whether or not she should take that risk.  The Recorder did not consider it safe or appropriate to base a duty of care on some “vague concept of “vulnerability”.

The Recorder also commented on the status of the company’s Code of Conduct as it had been argued that this in itself led to there being a duty of care to the claimant. His finding on this was helpful to employers. It was his view that the relationship between a support worker and a client was not one of trust as might be said for a relationship between a psychologist and patient and that the Code was meant as a guideline for how the company expected its employees to behave but nothing more:

…if the breach of professional guidelines or employers’ guidelines were a key ingredient in establishing the existence of a duty of care in negligence, then professional bodies and employers would have a clear incentive not to publish guidelines or codes of professional conduct which may expose them to a duty of care that would otherwise not apply. This on the face of it would be an undesirable result.”


Vicarious liability

Following the finding that Mr D did not owe the claimant a duty of care, this meant that any allegation of vicarious liability on the part of the company was bound to fail. However the Recorder helpfully confirmed his thoughts on this point. He reiterated his view that the role of a tenancy support worker was not one of influence and authority nor did it place that worker in a position of trust in relation to the claimant. The relationship was conducted after Mr D had completed his support work for the claimant, outside of the workplace premises and outside of working hours. Referring to the leading authority on vicarious liability, Lister & Ors v Hesley Hall [2002], the negligent acts complained of by the claimant were not so closely connected to Mr D’s employment so as to make the company vicariously liable for those acts (if those acts had been negligent).

Comment

  • This case is the first binding legal authority in relation to the duty not to enter into a sexual relationship. A similar first instance Scottish case, Shields v Crossroads (Orkney) [2013] CSOH was in the defendant’s favour but was not binding. In this case, a social worker had an affair with his client.  The court found it was misjudged and professionally wrong but that was a long way from saying the social worker was negligent. There were public policy considerations and it was not for the court generally, under the guise of developing the common law, to take on the task of improving protection for those who may be described as being vulnerable. The same policy considerations applied here in the claimant’s claim against Mr D.

  • The decision confirms that it would be wrong for the law to interfere with consensual sexual relationships like this and claimants should not be able to complain about what they have consented to.

  • If the decision had gone against the first defendant, it would have set a new duty not to enter into a sexual relationship.

  • It cannot be said that where there is a power imbalance, a degree of vulnerability and a relationship of trust in a professional context there is a duty not to enter into a sexual relationship.  If that were the case, a lawyer would have a duty of care not to enter into a relationship with a client, and a supermarket manager with an employee working on the checkout.  This case was not like a case of a psychiatrist and patient or even teacher and pupil where there is greater authority and limited capacity.

  • Similarly, the mere fact the employer’s code of conduct might forbid sexual relationships cannot found liability.  The code merely forms part of the contractual relationship between employer and employee.

Whilst attributing no great weight to it, the court also added that the law should be cautious about imposing duties of care which will involve it in delving into how adults of full age and capacity conduct their relationships with each other. 

On the face of it this would involve a judge in trying to determine whether or not each party to a relationship was acting reasonably and who was at fault for the break-up of the relationship. It would inevitably involve the judge in projecting their own views of appropriate and reasonable behaviour onto the parties to a consensual relationship. Whilst these issues arise in relation to proceedings before the family courts…I consider this is a factor which weighs against recognising the Asserted Duty…”

DWF was instructed by insurers on behalf the second defendant.

Contact

For further information please contact Andrea Ward, Partner, DD +44 191 233 9761 or andrea.ward@dwf.co.uk

By Andrea Ward and Joanne Kingsland

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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