Pursuer: Grahame QC, Wilson; Digby Brown LLP

Defenders: Milligan QC; Simpson & Marwick

23 August 2013

Introduction

[1] In the summer of 2009 the pursuer had a brief love affair with one of the defenders' employees. He was at the time a social worker assigned to her case. The pursuer now claims that the affair caused her to suffer serious injury to her mental health and certain financial losses. She says that her former lover owed her a duty of care not to have an affair with her because of the position he was in as her social worker; she claims also that he deliberately intended to cause her distress and psychological harm by deciding to have an affair with her. The pursuer sues the defenders for damages of £100,000 on the basis that they were under a duty to protect her against their employee's conduct and that they are vicariously liable for what he did to her.

[2] Although the action is brought under chapter 43 of the Rules of the Court of Session (allowing for abbreviated pleadings), the pursuer's written case is fully developed and sets out the factual and legal grounds of her action in detail. The case came before me for a debate at which the defenders moved for dismissal of the action on the ground that it was fundamentally misconceived in law. The pursuer sought a proof before answer so that evidence could be led before any of the legal issues in the case fell to be resolved.

The pursuer's pleadings
[3] The circumstances giving rise to the pursuer's claims, as set out in her pleadings, may be summarised as follows.

[4] The pursuer, who is now 42 years of age, describes herself as a carer. The defenders are a registered charity and at the relevant time had a place of business at the Orkney Carers Centre in Kirkwall. They provide practical and emotional support to carers as well as information and advice to help improve their lives.

[5] The pursuer explains in her pleadings that in about March 2008 the Community Social Services Department ("CSSD") of the local authority referred her to the defenders because she was experiencing difficulties in caring for her husband and son. Her husband suffered from severe arthritis and her son from a serious health problem. The defenders' assistant manager found the pursuer to be very stressed and was concerned about her. An assessment was prepared and it was noted that the pursuer was suffering from depression and had been on anti‑depressant medication for the previous two years. She was having difficulties in coming to terms with the fact that her husband's health was not improving; she was socially isolated and largely confined to the family home. The defenders recommended that the pursuer should be provided with respite care, information, support and advocacy services.

[6] In August 2008 Mr Philip Bennett took over the position of manager of the defenders' Kirkwall office. He had been a qualified social worker since 1996 and was trained and experienced in dealing with people who had mental health problems. Mr Bennett was made aware of the pursuer's circumstances and of her mental health difficulties. The pursuer avers that the defenders knew that without adequate support her mental health problems could be exacerbated. She alleges that she was vulnerable to harm due to her struggles with her role as a dual carer, her depression and the fact that she was socially isolated. She contends that the defenders knew or should have known all this.

[7] In February 2009 the CSSD carried out an assessment of the pursuer's son. The assessor noted that the pursuer suffered from a borderline personality disorder. It was recommended that the pursuer should be referred again to the defenders for support; all the information available to the CSSD was passed over to the defenders. [8] In March 2009 Mr Bennett visited the pursuer at her home. He had a lengthy meeting with her during which the pursuer disclosed that she had a history of psychiatric problems, that she had been diagnosed as suffering from bipolar disorder, that she had been on anti-depressant medication and that she had been admitted to hospital in the past due to her mental health problems. The pursuer avers that she explained to Mr Bennett how she was struggling with the demands of her role as a carer for her son and husband. The pursuer claims that Mr Bennett should have appreciated that without adequate support she was vulnerable to deterioration in her mental health and to suffering harm. The pursuer avers that during the meeting Mr Bennett described her as fascinating. I note that in article 5 of condescendence, where the pursuer sets out her averments of loss and damage, she explains that the diagnosis of bipolar affective disorder was made in 1995 when she was in hospital. She avers that following that admission to hospital she was given the treatment commonly used at that time for bipolar affective disorder. The pursuer was again admitted to hospital in late February 1996 for about 10 days; following that admission she was prescribed anti-depressants. It is important to note that the pursuer avers in article 5 that following these hospital admissions her mental condition was controlled by medication and "her symptoms had been inactive for 10 to 12 years". She goes on to say that between December 2007 and June 2009 she required no treatment for psychiatric illness.

[9] The pursuer's pleadings continue by referring to a further meeting between Mr Bennett and the pursuer on 24 April 2009 at the defenders' premises in a private room with the door closed. This meeting, the pursuer avers, would have been obvious to other members of staff. The pursuer says that Mr Bennett was in a position of trust in relation to her and of power over her. During the meeting the conversation became personal. Mr Bennett is said to have questioned the pursuer about her relationship with her husband. The pursuer avers that Mr Bennett informed her that his own marriage was sexless and that he found this difficult. The pursuer said that she no longer thought about sex due to her husband's ill health.

[10] The pleadings refer next to further contact between the pursuer and Mr Bennett in May 2009. In particular, there was a meeting at a café in Kirkwall during his working hours. According to the pursuer's averments, at this meeting Mr Bennett began to flirt with her and suggested extra-marital sex. There was a further meeting between the two parties on 10 June 2009, again in the café. During this meeting Mr Bennett is alleged to have made it explicit that he wished to have an affair with the pursuer. Thereafter the pursuer and Mr Bennett regularly exchanged private emails. Mr Bennett sent her text messages saying that he was thinking of her. The parties began to meet on a weekly basis.

[11] In June 2009 Mr Bennett sent explicit emails containing what is described in the pleadings as a heavy sexual content. According to the pursuer's averments, she was surprised and shocked, but also flattered by the attention. She avers that as a result she became confused, distressed and upset. She consulted her general practitioner, who prescribed anti-depressants.

[12] On or about 24 June 2009 the pursuer was involved in a car accident. She telephoned Mr Bennett. He collected her son from school. He emailed her later that day. The following morning they met again at the café and Mr Bennett is said to have been very attentive. There were further emails on 29 June 2009 which led to a meeting in Mr Bennett's office in the early evening. It is averred that during the meeting in Mr Bennett's office the parties had oral sex and sexual intercourse. According to the pursuer's pleaded case, Mr Bennett should have been aware that the pursuer's mental health and state of mind were becoming more unstable. Despite this, he is alleged to have put pressure on her. The pursuer claims that she felt under pressure to please him. She avers that he had encouraged her to develop an inappropriate emotional dependency on him.

[13] Thereafter there was further contact between the pursuer and Mr Bennett. She avers that he persuaded and pressured her into continuing the relationship regardless of the psychological harm this might cause her. The pursuer claims that during this period she felt confused, anxious and distressed. She says that she informed Mr Bennett that she was falling in love with him. His attitude towards the pursuer cooled, however. He told her that he did not want to leave his wife. On or about 6 July 2009 the pursuer consulted her general practitioner; her depression was noted to be severe and her medication was increased. On or about 9 July Mr Bennett informed the pursuer that he had resigned from his position with the defenders.

[14] The pursuer avers that the defenders had not implemented safeguards to protect service users, such as the pursuer. She claims that they did not have adequate systems in place for managing, monitoring and supervising staff, such as Mr Bennett. The pursuer avers that prior to July 2009 a board member of the defenders had seen the pursuer and Mr Bennett at the café and was concerned about the nature of their relationship. The defenders are alleged to have failed to take adequate steps to investigate the relationship. They are said to have failed to take steps to stop the relationship developing or continuing. It is averred that the defenders did not provide detailed and clear policies or procedures in relation to the conduct of staff, such as Mr Bennett.

[15] Following Mr Bennett's resignation, the pursuer complained to the defenders about his behaviour towards her. The complaint was referred to the Scottish Social Services Council, the regulatory and disciplinary authority for registered social workers. Mr Bennett was prosecuted for professional misconduct, the case against him being that he had entered into an inappropriate personal and sexual relationship with a vulnerable service user. He admitted misconduct and in due course the conduct sub‑committee determined that he was guilty of misconduct; this was judged to be of a serious nature since Mr Bennett was held to have abused a position of power and trust as a consequence of which the pursuer had suffered actual harm. Accordingly, Mr Bennett's registration as a social worker was removed.

[16] The pursuer's averments of loss and damage include the allegation that in about June 2009 she started to suffer from what are described as mental illness symptoms following the beginning of her affair with Mr Bennett. She avers that she began to self‑harm and that this included cutting herself with a knife. She attempted an overdose and began to drink excessively. She was prescribed diazepam and was referred to a counselling service and, in turn, to the community mental health team in Stromness. She alleges that she suffered a moderate depressive episode with thoughts of suicide. She became depressed and had to move away from Orkney. She went through a destabilised period during which she was irritable and disinhibited. She suffered from a depressive illness. She also suffers, according to her averments, from many of the features of post-traumatic stress disorder. The pursuer advances claims for solatium and for the financial costs of moving from Orkney and of private therapy and medical treatment. She also makes a claim for past services.

[17] As to the legal grounds of her action, the pursuer's claim is based on the defenders' alleged breach of their common law duty to take reasonable care for her safety and on the basis of the defenders' vicarious liability for Mr Bennett's negligent and deliberate misconduct.

The defenders' attack on the pursuer's case

[18] In challenging the relevancy of the pursuer's case, Mr Milligan QC submitted that the duties of care relied on by the pursuer did not exist as actionable duties under the common law. It was important to stress, he said, that this was not a sexual harassment case brought under the Prevention of Harassment Act 1997. As Mr Milligan put it, there was no duty of care on the defenders or on Mr Bennett to save the pursuer from herself. There had been no intentional infliction of harm on the pursuer against her will. There was no other case in which any such duty had been held to exist. Whether such duties existed was a question of law falling to be determined at the stage of a debate (Mitchell v Glasgow City Council 2009 SC (HL) 21 per Lord Hope of Craighead at paragraphs [10] to [13]).

[19] In addressing the familiar tripartite test, Mr Milligan based his submissions mainly on the contention that it was not fair, just and reasonable for there to be any duty owed by the defenders towards the pursuer to prevent her from entering into a sexual relationship with Mr Bennett. Nor was there any duty on Mr Bennett to refrain from having a sexual relationship with the pursuer. Counsel took as his starting point the statement by Lord Herschell in Smith v Baker & Sons [1891] AC 325 at 360 that one who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong. Mr Milligan referred to Barrett v Ministry of Defence [1995] 1 WLR 1217 where the Court of Appeal held that there was no duty on the defendants to prevent a naval airman from engaging in a bout of heavy drinking. To dilute self‑responsibility would be contrary to policy and principle. Mr Milligan referred also to Toms v Royal Mail Group PLC 2006 SLT 431 where Lord Glennie was not prepared to hold that it would be fair, just and reasonable to impose a duty on the defenders to protect the deceased against the consequences of his own folly; he fell asleep whilst driving a Post Office van at night, having been working for another employer during the day. The deceased was a responsible adult and ought to have been aware of the risk he was taking. In the same context Mr Milligan cited what Lord Hoffman said in Tomlinson v Congleton Borough Council [2004] 1 AC 46 at paragraph 45 where his Lordship observed that it would be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. Lord Hoffman then continued:

"If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair."

[20] Mr Milligan's point was that if people wish to engage in the inherently risky activity of having an extra‑marital affair then they must be taken to have accepted the potential consequences for their own emotional well‑being in the event that the affair breaks down or causes them other difficulties.

[21] Insofar as the pursuer sought to advance a case based on intentional wrongdoing by Mr Bennett, counsel submitted that the pursuer's pleadings were irrelevant. He said that the common law should be careful not to go beyond the boundaries for harassment claims set by the legislature in the 1997 Act (Ward v Scotrail Railways Ltd 1998 SC 255 at 259D-E and 261A-E). In Wainwright v Home Office [2004] 2 AC 406 at paragraph 46 Lord Hoffman had reserved his opinion as to whether compensation should be recoverable even where a genuine intention to cause distress could be proved. His Lordship continued:

"In institutions and workplaces all over the country, people constantly do and and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation."

[22] Lord Scott of Foscote agreed with the view expressed by Lord Hoffman that the infliction of humiliation and distress by conduct calculated to humiliate and cause distress is not, without more, tortious under the common law (paragraph 62).

[23] There was, Mr Milligan submitted, no support in the case law for the view that there might be liability under the common law for foreseeable distress resulting from the breakdown of a sexual relationship freely entered into. In any event, there were no averments to support an allegation that Mr Bennett had acted with the intention of causing harm to the pursuer.

[24] In the event that his primary arguments were not accepted, Mr Milligan submitted that the defenders were not vicariously liable for Mr Bennett's conduct in having an affair with the pursuer because there was no sufficiently close connection between this conduct and the defenders' business; it would not in the circumstances be fair and just to hold the defenders vicariously liable. Mr Bennett's conduct had not been within the scope of his employment and accordingly the defenders were not vicariously liable for it. Counsel referred to Lister & Ors v Hesley Hall Ltd. [2002] 1 AC 215 and to Wilson v Exel UK Ltd t/a Exel 2010 SLT 671.

[25] Finally, Mr Milligan submitted that the duties of care asserted against the defenders were not supported by any relevant and specific averments of fact as thy required to be (Morton v William Dixon Ltd 1909 SC 807 per Lord President Dunedin at 809; Gibson v Strathclyde Regional Council 1993 SLT 1243). On the pursuer's pleadings it was unclear how the defenders could have prevented what both she and Mr Bennett knew to have been wrong anyway.

The pursuer's arguments

[26] For the pursuer Miss Grahame QC drew attention to certain aspects of the pursuer's pleadings. She highlighted that the pursuer avers that she had suffered from depression and was on anti‑depressant medication; she was socially isolated; she had previously been diagnosed with borderline personality disorder; she was struggling with her role as a dual carer; the defenders' staff were concerned about her; the pursuer was stressed, exhausted and feeling older than her years. In the course of the hearing Miss Grahame produced the Codes of Practice for Social Workers and Employers issued by the Scottish Social Services Council, although these were not incorporated in the pleadings. She said that this document made it clear that social workers must not form inappropriate personal relationships with service users. I noted that the provision to which counsel referred (paragraph 5.4) appeared to be directed towards social service workers as opposed to their employers.

[27] Miss Grahame argued that unlike the pursuer's pleadings in Robertson v Scottish Ministers [2007] CSOH 186, the pursuer in the present case advances detailed averments of knowledge and foreseeability against the defenders; the duties averred were also said to be sufficiently specific and focussed.

[28] It had long been recognised that under the common law there was a duty on bodies such as hospital authorities to take precautions to prevent injury to patients known to have a history of mental illness; for example there was a duty to have appropriate systems in place in case women in a maternity ward developed a mental illness and tried to harm themselves. Counsel referred to Savage v South Essex Partnership NHS Foundation Trust [2009] 1 AC 681 per Lord Rodger of Earlsferry at paragraphs 46 to 48. In the present case the pursuer's circumstances could be said to be similar to those of a hospital patient with known mental health problems. She had been a user of the particular services provided by the defenders to carers in a small community; they were responsible for providing her with emotional and practical support. They knew or should have known that she had a history of mental health difficulties. In the circumstances, there was a relationship of sufficient proximity between the pursuer and the defenders.

[29] Miss Grahame submitted that the policy of the law had long been to protect vulnerable individuals from sexual abuse and exploitation by persons holding positions of trust and authority. As examples, Miss Grahame referred to the common law delict of seduction and to recent legislation making it a criminal offence for an adult occupying certain positions of trust to have sexual intercourse with a mentally disordered person (Sexual Offences (Scotland) Act 2009 section 46). Miss Grahame argued that the same kind of policy considerations were relevant in the present context as those which arose in the context of considering whether vicarious liability should be imposed on the employers of those who commit acts of sexual abuse. Essentially, those policy considerations were: (1) provision of a just and practical remedy for the harm; and (2) deterrence of future harm. Miss Grahame referred to the discussion by McLachlin J (as she then was) in the Supreme Court of Canada in The Children's Foundation et al v Bazley 1999 174 DLR 45 at paragraphs 29 to 33.

[30] Drawing together her submissions on why it was fair, just and reasonable for the law to impose duties of care on Mr Bennett and the defenders, Miss Grahame pointed out that the defenders had set up a charitable organisation to support carers; they employed social workers to provide emotional and practical support to carers in a small community; they carried insurance cover for the conduct of employees acting within the scope of their employment; it was widely recognised, for example in the Codes of Practice, that inappropriate relationships and attachments could arise between social workers and service users; it was also well known that carers were a disadvantaged and vulnerable group who might often struggle with the demands imposed on them; such persons were susceptible also to mental health problems. Furthermore, society was concerned to protect persons with mental health problems. Society also wanted to discourage sexual misconduct, particularly where it resulted from an abuse of trust and where it was committed against members of vulnerable groups, including those with mental health problems. Looking at all these circumstances together, it could not be concluded at this stage of the case that there could not have been any duty of care owed to the pursuer by Mr Bennett and the defenders. A factual inquiry was needed in order to determine whether the duties averred did actually arise in the particular circumstances of the case.

[31] Turning to the pursuer's case insofar as based upon the vicarious liability of the defenders for the negligent and deliberate conduct of Mr Bennett, Miss Grahame commended the analysis of Lord Clyde in Lister supra at paragraphs 36 to 45. In particular, a broad approach should be adopted in considering the scope of the employment. From this it followed that it was inappropriate to concentrate too closely upon the particular act complained of. The purpose and nature of the act had to be considered, as well as the context and the circumstances in which it occurred. All this, said Miss Grahame, pointed towards there being a need for a proof in the present case.

[32] Miss Grahame argued also that in taking a broad approach to the issue of vicarious liability, one should recall that the present case did not involve merely a single event, but rather a series of acts on the part of Mr Bennett over a time span extending to several months. His wrongful conduct extended to the development of an intimate and abusive sexual relationship with a vulnerable individual over a significant period of time. In effect he had engaged in a campaign which amounted to sexual grooming of the pursuer. This was an abuse of power and trust. Mr Bennett used the cloak of his job to foster a sexual relationship with the pursuer regardless of the harm that this was liable to cause her; his motivation was simply that of his own sexual gratification.

[33] Miss Grahame also cited Wilson supra and Bazley supra. She said that the circumstances of the present case could be distinguished from those which arose in the Canadian case of Jacobi v Griffiths 1999 174 DLR 71 where there had not been a relationship of intimacy between the program director of the children's club and the children whom he sexually abused. Power and intimacy created a strong connection between the enterprise and the sexual assault; those factors were absent in Jacobi.

[34] Finally, Miss Grahame submitted that the pursuer's averments of duty were sufficiently relevant and specific to be allowed to go to proof. In this connection, it should be borne in mind that the action was one brought under Chapter 43 so that elaborate written pleadings were not required. It was again important in this context to appreciate that the pursuer's case relied on a series of meetings between her and Mr Bennett and the development of a relationship over the period between about March 2009 and July 2009. The pursuer averred that Mr Bennett had a duty to discourage the formation of any inappropriate or sexual relationship between him and a service user, such as the pursuer. In the event that he had any concerns in this regard he had a duty to inform the defenders immediately and to avoid any further meetings or communications with the pursuer. Miss Grahame observed that the possibility of vicarious liability for a claim along these lines had not been definitively determined by the House of Lords in Lister supra.

[35] Miss Grahame submitted also that the pursuer's pleadings were sufficient to instruct a case based on vicarious liability for Mr Bennett's intentional conduct. In the case of actual intention to cause harm (as opposed to merely imputed intention to harm) issues of foreseeability and duty did not arise and the offending party would be held liable for all the natural and direct consequences of his conduct (Robertson supra paragraphs 14 to 19).

Analysis and decision
[36] I will address the questions of law which arise in the present case by considering the averments of negligence (and deliberate harm) in the same order as they appear in the pursuer's pleadings. These averments begin by alleging that the defenders were in breach of duties directly incumbent on them to take reasonable care for the pursuer's safety and health. It is then averred that the defenders were under a duty to implement safeguards for the protection of service users and to have systems for managing, monitoring and supervising staff. The pursuer avers next that the defenders had a duty to provide detailed and clear policies and procedures in relation to staff conduct. It seems to me that up to this point in her pleadings the pursuer's averments as to the duties owed by the defenders are uncontroversial in the sense that an organisation like theirs could reasonably be expected to take the sort of basic steps and precautions desiderated. But in themselves these averments do not materially advance the pursuer's case because they are really no more than statements of the obvious and are not focussed on the particular facts of the case. It is, I think, fair to read this section of the pleadings as forming the backdrop to the more particularised duties which follow. I must now turn to examine those.

[37] After setting out the general duties to which I have just referred, the pursuer's pleadings continue by alleging that the defenders were under a duty to see to it that staff did not behave in an inappropriate manner (including a sexual manner) towards service users and that staff did not form inappropriate relationships with such persons. It is also averred that the defenders had a duty to take reasonable care to prevent staff from engaging in conversations or correspondence of a sexual nature with service users; to advise staff that all meetings should be conducted in the defenders' premises; and to prohibit staff from communicating with service users other than by means of their work computers. The pursuer goes on to aver that having become aware of the relationship developing between Mr Bennett and the pursuer, the defenders were under a duty to take reasonable care to investigate and to take adequate steps to prevent or stop the relationship from continuing.

[38] In my opinion, all these averments are irrelevant and it would be wrong to allow them to form the basis of a factual inquiry at a proof before answer. There are a number of difficulties with the formulation of the duties in my view. In the first place, it seems to me that the pursuer's pleadings fail to set out any proper factual basis for the existence of the duties. I do not think that one can simply assume that the defenders were bound to do what the pursuer criticises them for not doing. What then is the factual basis for the pursuer's claim that the defenders were under these duties? It seems to me that one looks in vain for that in the pursuer's pleadings. In article 6 of condescendence there is what amounts merely to a passing reference to the Codes of Practice for Employers and Social Service Workers. All that the pursuer says in connection with the Codes is that the defenders had a duty to "have regard to the standards expected under" that document. This seems to me to be too generally expressed to be of any assistance. It is not made clear what part of the Codes is relevant. There is no suggestion that the Codes contained relevant advice or guidance aimed at employers of social workers (as opposed to social service workers themselves) recommending that they should put in place the measures and take the various steps referred to by the pursuer. Paragraph 5.4, to which Miss Grahame referred in her submissions, appears to be directed towards social service workers rather than their employers. Moreover, there is no averment that other charities providing the same type of services would, in the exercise of reasonable care, have done what is alleged to have been necessary. There are no averments relating to established practice amongst social work charities. In the absence of any averments of practice in the social work profession and since it cannot, in my view, be said that the duties contended for were obvious, there appears to me to be no legitimate basis for the proposition that the defenders were negligent in omitting to do what the pursuer blames them for. In this connection, the well-known words of Lord President Dunedin in Morton supra continue to have resonance, even in the modern world of Chapter 43 pleadings. His Lordship said this:

"Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either - to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or - to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it."

[39] Testing the pursuer's averments against Lord Dunedin's formula, it is clear that they fail to satisfy either of the basic requirements identified by his Lordship. There are no averments to show that what was omitted was commonly done by other persons in like circumstances. Furthermore, I do not consider that there is any basis for asserting that the steps omitted were so obviously wanted that it would be folly in anyone to neglect to provide them.

[40] The next problem with the more particularised duties, as I see it, is that they seek to impose responsibilities on the defenders with which it would in practice be extremely difficult, if not impossible, for them to comply. It is hard to envisage, for example, how the defenders could be expected to see to it that their staff did not behave in an inappropriate manner towards service users or form inappropriate relationships with them. The standard of appropriateness in this context would be difficult to pin down. There must also be practical limitations on the extent to which an organisation like the defenders can be expected to watch over the conduct of their social workers and the evolution and fluctuation of their relationships with service users. The defenders are not in a position to monitor all that their employees are doing, particularly when they are out of the office or off-duty. As to the duty to take reasonable care to prevent staff from engaging in conversations or correspondence of a sexual nature with service users, this too would impose unrealistic burdens in practice. So far as the duties to advise staff that all meetings should be conducted in the defenders' premises and to prohibit staff from communicating with service users other than by means of their work computers are concerned, these also seem to me to be unrealistic. It must often be necessary for social workers to meet clients outside their offices and to contact them by telephone or in person.

[41] The pursuer avers that having become aware of the relationship developing between her and Mr Bennett, the defenders were "under a duty to take reasonable care to investigate and to take adequate steps to prevent or stop the relationship from continuing". I consider that the pleadings fail to set out any proper factual foundation for the existence of these duties. All that the pursuer states in her factual averments is that on or about 24 April 2009 there was a meeting between the pursuer and Mr Bennett in a private room at the defenders' premises and that the door was closed. It is said that this would have been obvious to other members of staff. At a later point the pursuer avers that prior to 9 July 2009 a board member of the defenders had seen her and Mr Bennett at a café and was concerned about the nature of their relationship. It is then said that the defenders failed to take adequate steps to investigate the relationship and to stop it developing or continuing.

[42] In my opinion, all of this is irrelevant. There is nothing in the factual averments to suggest that the defenders should have appreciated at a managerial or supervisory level that an improper sexual relationship had begun between the pursuer and Mr Bennett or that he was acting in an inappropriate manner (far less a sexually abusive or predatory manner) towards her.

[43] Looking at the averments of direct negligence against the defenders somewhat more broadly, it seems to me that even if the defenders had complied with them it would have made no difference. The pursuer accepts that she willingly agreed to have an affair with Mr Bennett at a time when she was not legally incapacitated. There is no suggestion that Mr Bennett forced or induced her to have a sexual relationship with him by means of threats, duress or subterfuge. In these circumstances, I cannot see that any of the duties allegedly incumbent on the defenders could have prevented the parties from seeing through the course on which they each freely and willingly agreed to embark.

[44] Having set out the various duties said to have been directly owed to her by the defenders, the pursuer moves on to aver that the defenders were vicariously liable for Mr Bennett's acts and omissions in the course of his employment with them. Firstly, it is said that Mr Bennett was negligent in respect that he breached various duties of care he owed to the pursuer. Then the pursuer avers that he engaged in a deliberate course of conduct that was intended to cause her distress and psychological harm or with a complete disregard of the consequences to her psychological state.

[45] As regards the averments of negligence on the part of Mr Bennett, in summary the pursuer avers that he had a duty not to enter into a sexual relationship with her because of the position of trust he occupied and in view of his state of knowledge about the pursuer's psychological vulnerability.

[46] In the particular circumstances of the present case as set out by the pursuer in her pleadings, I do not consider that it would be fair, just or reasonable for the common law to impose on Mr Bennett a duty of the scope averred. It is important to scrutinise the factual basis of the pursuer's case closely, particularly in view of the novelty of the duty of care for which she contends. Essentially, as it seems to me, the pursuer entered into a consensual sexual relationship with Mr Bennett at a time when the law considered her to be fully capable of doing so. She was an adult with full mental capacity. She was not suffering from any recognised form of mental disorder or handicap; according to her averments her mental health difficulties were in the distant past. She accepts that she had experienced no symptoms in this regard for 10 to 12 years. As I read the pursuer's averments in article 5, she accepts also that she did not begin to suffer from any new "mental illness symptoms" until after the start of the affair. Mr Bennett did not use threats, force or duress; what he is alleged to have done is to have persuaded the pursuer to have an affair with him. Even taking the pursuer's case at its highest, the relationship was, however, one entered into by two consenting adults; this can be seen from the pursuer's averments. For example, I note that the pursuer accepts that she went willingly to all the meetings with Mr Bennett. She discussed her sex life with him, again perfectly openly and willingly so far as her averments suggest. She told him that she was flattered by his attention. She engaged in regular email correspondence with Mr Bennett between their respective private email accounts. They started to meet on a weekly basis. She asked him to collect her son from school. She believed that he cared about her. On 29 June the pursuer and Mr Bennett exchanged a series of emails in which they arranged to meet at the defenders' premises that evening. On that occasion the pursuer willingly had sexual relations with Mr Bennett. The pursuer's pleadings contain a number of somewhat vague references to her vulnerability, although I noted that Miss Grahame in her submissions rather shied away from defining what exactly the nature and the extent of the alleged vulnerability were. I note also that the pursuer avers that Mr Bennett knew that she had a history of mental health difficulties. It seems to me, however, that neither the pursuer's alleged state of vulnerability nor Mr Bennett's knowledge of her background and previous problems detracts from the incontrovertible fact that the pursuer went into the relationship as a willing partner at a time when she was, in law, deemed to be fully capable of so doing. In those circumstances, I find 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 the pursuer.

[47] In my opinion, the consensual adult sexual relationship which developed between the pursuer and Mr Bennett is far removed from the type of sexually abusive relationship where the common law has been prepared to hold that there is a duty not to engage in the relationship - cases involving the sexual abuse of children or of persons suffering from mental handicap are obvious examples. It was no doubt misjudged and professionally wrong for Mr Bennett to have an affair with the pursuer, but that is a long way from saying that it was actionably negligent for him to do so. What if the relationship had turned out to be a stable, happy and enduring one? Would Mr Bennett still have been considered negligent as a matter of law for encouraging or persuading the pursuer to enter into it? The logic of the pursuer's argument would tend to indicate that he would be. I venture to suggest that this would be a surprising state of affairs. When one thinks about the pursuer's case in this way, it seems to me that the damage she allegedly suffered and the losses which she seeks to recover really flow from the breakdown of the relationship rather than being the result of Mr Bennett's decision to enter into it or his alleged efforts to persuade the pursuer to do so.

[48] Miss Grahame frankly accepted that there is no decided case in which it has been held that a common law duty of care of the scope contended for by the pursuer exists. This is, I think, an important consideration and one that counts strongly against the recognition of a novel duty of care in the present case. In Reeman v Department of Transport [1997] PNLR 618 at 625, Phillips LJ (as he then was) said the following:

"When confronted with a novel situation the court does not... consider these matters (ie foreseeability, proximity and fairness) in isolation. It does so by comparison with established categories of negligence to see whether the facts amount to no more than a small extension of a situation already covered by authority, or whether a finding of the existence of a duty of care would effect a significant extension to the law of negligence. Only in exceptional cases will the court accept that the interests of justice justify such an extension."

[49] Similarly in his speech in Caparo Industries Plc v Dickman [1990] 2 AC 605 at 619 Lord Bridge said this:

"Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes."

[50] I note also that the Second Division of the Inner House recently warned that statements of principle at a high level of abstraction should not be relied upon without due consideration either for their meaning in the context of the particular case or for the import of their application to cases in a wider context. The Second Division considered that the practical solution for the courts in a specific case lay in analysing the particular circumstances of the case according to the category into which it falls (Thomson v Scottish Ministers [2013] CSIH 63 paragraphs [48] and [49]).

[51] I do not think I need address separately the questions of proximity and foreseeability. Each of those criteria, when viewed in isolation, raises issues that might only be capable of resolution at a proof before answer. Mr Milligan accepted that the crux of the present case was whether it was fair, just and reasonable for the common law to recognise the existence of the duties of care relied on by the pursuer and Miss Grahame's submissions also focussed on that aspect. For the reasons I have already given, I consider that when one analyses the particular circumstances surrounding the formation of the relationship between Mr Bennett and the pursuer it becomes clear that they cannot give rise to a duty of care on his part not to have an affair with her.

[52] It appears that the origin of the requirement of fairness, justice and reasonableness lies in the speech of Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 728 in which his Lordship referred to the court as "the spokesman of the fair and reasonable man". I note also that in Minories Finance Ltd v Arthur Young (A Firm) [1989] 2 All ER 105 at 110 Saville J (as he then was) described justice and reasonableness as being a test "of ordinary reason and common sense".

[53] In my opinion, the imposition of a duty of care on Mr Bennett in the circumstances of the present case would not be reasonable in the sense described in the case law. In this context it seems to me to be of some importance to note that the appropriate regulatory authority has found Mr Bennett guilty of professional misconduct and has disqualified him from practising as a social worker. There is, I think, a good case for saying that the public interest has been sufficiently served by the imposition of that sanction on him and that it would be inappropriate for the courts to take the additional step of imposing civil liability on him. Miss Grahame argued that the court should be prepared to extend the law of negligence to recognise the duties for which she contended because this would promote the aim of deterring the sexual abuse of vulnerable individuals - a group of persons which she was unable to define, however. More broadly, she also suggested that carers as a class should be treated as potentially vulnerable. She urged me to take the view that the recognition of a new duty of care would represent no more than an incremental development of the law of delict. In my opinion, these arguments raise sensitive questions of social policy on which the courts are not in a position to adjudicate. I do not think that it is for the courts, under the guise of developing the common law, to take on the task of improving protection for carers or others who might be described as being to a greater or lesser extent vulnerable. In my judgment, the pursuer's approach would involve substantially more than a small extension of a situation already covered by authority, if I may respectfully borrow the phraseology of Phillips LJ in Reeman supra. On the contrary, it would bring about a significant extension of the law of negligence. Questions of social policy of this type are better left to the democratically-elected legislature. In this connection it is important to recall that as recently as 2009 the Scottish Parliament made it a criminal offence for an adult in a position of trust to engage in sexual activity with a mentally disordered person (section 46 of the Sexual Offences (Scotland) Act 2009). And it has, of course, been actionable for some time under the civil law to pursue a course of conduct which amounts to harassment (section 8 of the Protection from Harassment Act 1997). But the legislature has not taken any steps to move the law of negligence in the direction which the pursuer invites the court to do in the present action. That being so, I do not think that the courts should themselves do what the legislature has refrained from doing. The quick sands of public policy should, in my opinion, be avoided in a case such as the present one where the court is not in possession of sufficient information to evaluate the policy considerations that might be relevant to the expansion of the law beyond the boundaries delimited by the legislature under statute (cf McFarlane v Tayside Health Board 2000 SC (HL) 1 per Lord Steyn at 17F-G). It is pertinent in this connection to recall also the words of Lord Scarman in McLoughlin v O'Brian [1983] 1 AC 410 at 430: "considerations ... of social, economic and financial policy, are not such as to be capable of being handled within the limits of the forensic process".

[54] Insofar as the pursuer's case attempts to rely on the proposition that Mr Bennett deliberately intended to inflict harm on her, it is also irrelevant in my opinion. This branch of the case is, I note, sparsely pleaded. The averments are no more than bare assertions. Even on the pursuer's own pleadings, it is clear that Mr Bennett's motivation was to have a sexual relationship with the pursuer and not to inflict harm on her. Accordingly, I can see no basis for the allegations that he engaged in a deliberate course of conduct that was intended to cause the pursuer distress and psychological harm or that his behaviour was, as the pursuer's pleadings aver, designed to cause her psychological distress.

[55] In these circumstances, I have reached the conclusion that the pursuer has no relevant case based on the direct negligence of the defenders and that Mr Bennett owed her no common law duty of care to refrain from having an affair with her. I have held also that the pursuer's case insofar as it is based on the infliction of deliberate harm by Mr Bennett is irrelevant. In view of these findings, it is strictly speaking unnecessary for me to consider the relevance of the case based on the alleged vicarious liability of the defenders for Mr Bennett's conduct. In deference to the arguments advanced at the debate I shall, however, briefly give my views on that branch of the case.

[56] The numerous authorities (many of which are not easy to reconcile) were recently analysed by the Inner House in Vaickuviene and others v J Sainsbury PLC [2013] CSIH 67 and I shall not, therefore, attempt to repeat that exercise. I note that in paragraph [19] of his Opinion the Lord Justice Clerk referred to the fact that in Wilson supra the Inner House had stressed that the test remained one of whether the actings of the employee were "within the scope of his employment". The Inner House went on to say in Vaickuviene that in Lister supra Lord Clyde had provided helpful guidance on how to approach the issue. First, it had to be done broadly, taking into account the context of the act complained of and not just the act itself. Secondly, whilst time and place were always relevant, they were not conclusive. Thirdly, the fact that the employment provided the opportunity for the act to occur at a particular time and place was not necessarily enough for the imposition of liability.

[57] Later (in paragraph [28]) the Lord Justice Clerk referred to the so-called "frolic" cases (eg Deatons Pty v Flew (1949) 79 CLR 370) where the actions of the employee involved, in the words of Lord Reed in Ward supra, "an unrelated and independent venture of his own: a personal matter rather than a matter connected to his authorised duties".

[58] Whatever test or approach is adopted, Mr Bennett's conduct in entering into a sexual relationship with the pursuer was, in my opinion, clearly outside the scope of his employment. His employment no doubt provided the opportunity for him to meet the pursuer and to attempt to persuade her to have an affair with him, but I can see no basis for holding that the affair was a matter linked in any meaningful sense to the performance of his authorised employment duties. On the contrary, it was an independent personal venture of his own and was not closely connected to his employment. In the circumstances, the case based on vicarious liability is, I consider, misconceived.

[59] For all these reasons I have dismissed the action. I have reserved all questions of expenses.