When a charity gives advice for free, can it be sued if that advice turns out to be negligent?
In D v Victim Support Scotland [2017] SC EDIN 85 the answer was yes, as professional negligence principles were applied without exception for the benevolent advisor.
The Facts
D was abused as a child by his mother. After she was convicted, he sought help from Victim Support Scotland, which made a claim to the Criminal Injuries Compensation Authority on his behalf. During the process, D explained he had recently lost his job and did not know when (or if) he would return to work. His advisor did not mention that D could claim lost earnings if he was off work for more than 28 weeks because of the abuse. D missed out on that compensation as a result.
The Argument
D sued for damages. He argued VSS owed him a duty of care to provide accurate advice, regardless of the fact it was free. It had assumed a responsibility to him and had known he was relying on its advice. The Caparo Industries plc v Dickman tripartite test was met and a duty of care existed because: (1) D's loss was foreseeable; (2) there was a proximate relationship between D and VSS; and (3) imposing a duty was fair, just, and reasonable. As no reasonable advisor would have failed to mention loss of earnings if acting with ordinary skill and care, the duty was breached and caused D economic loss.
VSS argued it owed no such duty. Its role was administrative only. The proximate relationship necessary under Caparo was missing, as VSS acted as a charitable organisation and not a professional advisor.
Decision
The court held a duty did exist. The relationship between D and VSS was akin to contract. VSS had supplied a service in acting as D's representative. It had assessed his eligibility and completed and submitted the application on his behalf. The lack of payment was irrelevant. VSS had held itself out as having expertise and had assumed responsibility to D. As traditional professional negligence principles apply, it was unnecessary to consider Caparo, but in any event all three criteria were satisfied. While local advice services may offer varying levels of expertise, anyone assessing eligibility for a CICA claim would be expected to fully consider loss of earnings.
Wider Implications
Following the Limitation (Childhood Abuse) (Scotland) Act 2017, the opportunity for victims of historic abuse to make claims has expanded. This, combined with the ongoing Scottish Child Abuse Inquiry, is likely to result in higher numbers of claims. In most cases, claimants will pursue the organisation which employed their abuser, but CICA claims remain a route to compensation where the abuser is uninsured or unable to pay.
It may intuitively seem uncharitable for VSS to be held liable. However, the court simply implemented the longstanding "assumption of responsibility" test for a duty of care. This is a timely reminder that even the Good Samaritan may be liable for economic loss if negligent. To mitigate the potential for claims, charities are well advised to caveat the advice they give, or ensure it is high quality and accurate. As the spotlight is shone on historic abuse in Scotland and more claimants come forward, the organisations that support them face these challenges now more than ever.
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