Mrs Brayshaw had suffered a series of family and health problems, both physical and mental. In August 2012, she rang Apsley Surgery and found herself speaking to the second defendant, Dr O'Brien, a locum at the practice. She subsequently became involved with Dr O'Brien and his wife in what might be described as a psycho-religious relationship. He suggested a course for her. A letter from her confirmed that what happened was to be a religious process and that Dr O'Brien would be giving of his own time as a Christian and not as her GP. She stated that she had wanted to reconcile with God and her faith for some time and she was aware that the course which was being suggested to her and which she, at that time, was willing to embrace was not a course of medical treatment but a form of religious treatment. Dr O'Brien told her that she should start going to a Pentecostal church. He and his wife inculcated her into their faith, their church and their Christian practices. However, the events surrounding a ‘testimony’ on 12 January 2013 involving a witch doctor, an owl and a grave had left Mrs Brayshaw terrified of owls – a phobia confirmed by psychiatrists. It was admitted that she had suffered psychiatric harm; and Dr O'Brien had subsequently been struck off by a GMC Fitness to Practise panel. The issue was whether or not Dr O'Brien and Apsley Surgery were liable in tort for the harm done to her.

Mrs Brayshaw argued that Dr O'Brien was liable in tort on three grounds: intentionally exposing her to a foreseeable risk of injury or severe distress which did result in injury; harassment; and negligently exposing her to a foreseeable risk of injury and deterioration in her pre-existing mental health problems – which, in fact, materialised. The court concluded that the tort of inflicting intentional harm had not been made out: it was very unlikely that Dr O'Brien had the requisite intention to cause harm and the evidence suggested that his intention, misguided as it may have been, had been the improvement of her spiritual and mental health. The court also rejected the claim of harassment. However, the claim of negligence succeeded. It had been negligent of Dr O'Brien to expose Mrs Brayshaw to the meeting when it was foreseeable that, given her psychiatric and physical problems, she might react adversely in the way that she did – and his religious zeal had blinded him to the medical aspects of her case.

As to the claim that Apsley Surgery was vicariously liable for Dr O'Brien's misfeasance, he had not been an employee but merely a locum engaged at certain times for certain defined purposes. The fact that Mrs Brayshaw had met him through his work for Apsley's was insufficient to establish liability. The activity that had harmed her had been the promotion of a particular brand of Christianity and it was difficult to see how Dr O'Brien could have been doing that on Apsley's behalf, nor was it any part of Apsley's business activity. The claim therefore failed. [Frank Cranmer]