NM against Graeme Henderson and another (Court of Session) [2024] CSOH 84 (23 August 2024)

OUTER HOUSE, COURT OF SESSION

[2024] CSOH 84

PD301/20

OPINION OF LORD CLARK

In the cause

Pursuer

against

(FIRST) GRAEME HENDERSON and (SECOND) SCOTTISH AMBULANCE SERVICE

Defenders

Pursuer: Davies KC, Fraser; Drummond Miller LLP

First Defender: Dewar KC, Forsyth; A & WM Urquhart

Second Defenders: Pugh KC, Bergin; NHS Scotland Central Legal Office

23 August 2024

Introduction

[1]

This is a personal injury action brought under chapter 43 of the Rules of the Court of

Session in which the pursuer seeks £800,000 in damages from the first and second defenders.

The first defender worked for the Scottish Ambulance Service (SAC). In the course of his

employment he attended in an ambulance to take the pursuer to hospital. On several other

occasions thereafter when he visited the pursuer's home, but was not working at those

times, he is said to have physically and sexually assaulted her, harassed and abused her.

The first defender is averred to be liable to the pursuer in terms of sections 8 and 8A of the

Protection from Harassment Act 1997 and for breach of duty at common law.

[2]

The second defenders are said to be vicariously liable for the first defender's alleged

course of conduct, albeit it took place when he was not actually working. Separately, the

second defenders are said to have directly owed a duty of care to the pursuer and breached

that duty. The breach alleged is that the second defenders failed to properly investigate

whether the first defender had acted inappropriately with another woman (AB) in an

ambulance just over two years before his contact with the pursuer. It is averred by the

pursuer that, if a proper investigation had taken place, the first defender would have been

removed from his post and could not therefore have come into contact with the pursuer,

with the result that his conduct towards her would not have occurred.

[3]

The case called for a diet of debate. For the first defender, senior counsel argued that

a number of the pursuer's averments are irrelevant or lacking in specification and should be

excluded from probation. Senior counsel for the second defenders submitted that the case

based on vicarious liability is irrelevant and so is the case based upon existence of a direct

duty of care. Dismissal of the action against the second defenders was sought. For the

pursuer, senior counsel argued that in this chapter 43 action these challenges were not well-

founded and that the whole case should proceed to proof.

Submissions

Submissions for the first defender

[4]

In Statement IV, it is averred that the first defender pulled the pursuer onto a bed

and had sexual intercourse with her. It was not clear whether this is alleged to be delictual

or why it is founded upon in relation to a course of conduct, there being no averment of it

not being consensual. It is then averred that the pursuer felt indebted to the first defender

and felt under pressure. Without elaboration it was difficult to know what this means. It

was unclear whether the later reference to sexual intercourse is claimed to be delictual or

not, or indeed whether the averment of it being forceful is a delict or a crime. The reference

to sexually explicit remarks made to the pursuer was also unclear on whether it is a crime or

a delict. Moreover it was not specified or made clear what is meant by the first defender

having humiliated her.

[5]

It is averred that he threatened the pursuer, but it is not explained what the threat

was or where it took place. It is averred that on 25 July 2017 the pursuer was feeling

suicidal. The first defender is said to have threatened her. She felt trapped and took an

overdose of Cyclizine and left her home in an attempt to escape. It is pled that she rolled off

a bridge, landing on her left side and sustained injury. The expression "rolled off a bridge"

is unclear, nor is it clear as to how or in what way the first defender is responsible for that

event. Further averments which are consequential to that incident are also irrelevant.

[6]

Statement IV also avers that the first defender was made aware of the pursuer's past

history of psychological problems and her history of sexual abuse. There are no averments

that these issues were continuing at the time the first defender was in contact with her, nor

that he was aware of the Emotionally Unstable Personality Disorder which she suffered or

that she was still suicidal. The averments could not establish an ongoing knowledge of

vulnerability of the pursuer in the mind of the first defender.

[7]

Statement VII, which refers to a course of conduct said to amount to harassment

under the 1997 Act and at common law, is not based on a relationship with the pursuer and

so is irrelevant. In Statement V it is averred that the first defender ought to have reported

himself to the Health and Care Professions Council (HCPC), but he was not then registered

with the HCPC. The averments in Statement V regarding previous incidents of which the

first defender was acquitted and the criticisms of investigations into his conduct that were

dropped are not relevant to the case against the first defender.

Submissions for the second defenders

[8]

The second defenders accept that they employed the first defender, albeit as an

ambulance technician rather than a paramedic and so stage 1 of the test for vicarious liability

is satisfied. The stage 2 question is whether there is closeness of any connection between the

conduct and the employment (or equivalent relationship): Various Claimants v Wm Morrison

Supermarkets Plc [2020] AC 989, Lord Reed, paras [22], [24] and [32]; Trustees of the Barry

Congregation of Jehovah's Witnesses v BXB [2023] 2 WLR 953, Lord Burrows, para [58](iii).

A distinction is to be drawn between acts done by those who are engaged, however

misguidedly, in furthering their employer's business (or in this case the Scottish Ambulance

Service's activities) and cases where the employee is engaged solely in pursuing his own

interests (Various Claimants v Wm Morrison Supermarkets Plc, at para [47]).

[9]

None of the instances of rape, sexual assault and other abusive behaviour are alleged

to have occurred when the first defender was on duty as an ambulance technician. On the

pursuer's averments, the only aspect of the course of conduct which could be said to arise

because of the first defender's employment with the second defenders was the initial contact

between the pursuer and the first defender. At most, the pursuer seeks to establish that the

first defender's employment with the second defenders gave him the opportunity to meet

the pursuer. The mere opportunity to meet one's victim is not enough: Lister v Hesley Hall

Limited [2002] 1 AC 215, Lord Clyde, at para [45] and Trustees of the Barry Congregation of

Jehovah's Witnesses v BXB, Lord Burrows, at para [70] et seq.

[10]

The pursuer avers no facts or circumstances which demonstrate how the first

defender's conduct towards the pursuer was in furtherance of the activities of the

ambulance service. The incidents, as averred, are remote in time from the first defender's

duties as an ambulance technician. Even where there is connection to the place (ie the

pursuer's accommodation) that is insufficient: Various Claimants v Wm Morrison

Supermarkets Plc, Lord Reed, paras [41] - [44]. There is nothing to suggest that the alleged

conduct was anything other than the pursuit of the first defender's own interests. In the

absence of such averments, the pursuer's case based on vicarious liability is bound to fail.

[11]

In relation to the claim that there is direct liability of the second defenders, who are

said to be in breach of duty, the point made by the pursuer is that when considering

unrelated complaints made to the second defenders regarding the conduct of the first

defender in 2015 (ie prior to any averred contact between the pursuer and second defenders)

the second defenders ought to have become aware that the first defender posed a risk to

vulnerable females.

[12]

The root of the pursuer's argument for the existence of any duty owed to the pursuer

is her status as a prospective user of the ambulance service. No such duty is owed by the

second defenders to the pursuer, essentially because of a lack of proximity between the

pursuer and the second defenders. The pursuer seeks to hold the second defenders liable

for criminal actions of the first defender. The law generally resists imposing such a duty

outside of vicarious liability. To succeed in such a claim, a pursuer must establish a special

relationship which exposes them to a particular risk of damage in the context of that

relationship: Thomson v Scottish Ministers 2013 SC 628, Lord Carloway, paras [56] - [59].

The authorities show that a duty has not been found to be established in analogous

circumstances and, separately, that a duty of the sort contended for in the present case

would not be a permissible extension of recognised duties of care. Assuming that is right,

there is no need to go on to consider the tripartite test.

[13]

If there is a need to consider the aspects of the tripartite test, the present case fails for

the following additional reasons: (i) the circumstances do not disclose a sufficiently

proximate relationship between the pursuer and the second defenders to give rise to a duty

of care; (ii) imposing a duty of care in the manner condescended upon would potentially

give rise to a conflict of interest.

Submissions for the pursuer

Response to the first defender

[14]

This is a chapter 43 action and as a result detailed pleadings are not required.

Nevertheless, the pursuer's averments provide fair notice of the case. The first defender's

knowledge of the pursuer's condition is a matter for proof. The pursuer also offers to prove

a number of actions on the part of the first defender which, taken together, amount to a

course of conduct. It would be premature and artificial for isolated elements to be deleted at

this stage ignoring the whole context. Sufficient notice has been given of the case against the

first defender.

[15]

The pursuer offers to prove that the first defender ought to have reported himself to

the HCPC. The first defender is entitled to seek to prove that such reporting was not

necessary, standing the stage at which his registration had reached, but that is not a basis for

the pursuer's averment to be excluded. On the point made about criticisms of investigations

or complaints dropped and previous incidents, these are relevant to the common law case

against the first defender and should be admitted to probation.

Response to the second defenders

[16]

The pursuer's averments provide a relevant and sufficient basis upon which to seek

an evidential hearing regarding vicarious liability, and in particular, the question of close

connection. The pursuer offers to prove that the first defender's employment with the

second defenders provided him with more than simply an opportunity to meet or come into

contact with the pursuer. The grooming behaviour commenced in the ambulance while the

first defender was engaged in the second defenders' business and accordingly the abuse

thereafter is closely connected to his employment.

[17]

The first defender himself regarded his conduct towards the pursuer as arising

directly out of his employment and further the second defenders, in dismissing the first

defender, directly relied upon the correlation between the first defender's conduct towards

the pursuer and his employment. The first defender's employment did not simply provide

an opportunity for the parties to meet, it created the whole context within which the first

defender was able to form a relationship with the pursuer in breach of the trust afforded to

him in his employment role.

[18]

The averments support an argument that there was a close connection between the

first defender's employment and the conduct. The pursuer was a vulnerable service user

and through the first defender's employment he was put into a relationship of trust with

her, a risk inherent in the nature of the service provided by the second defenders and the

vulnerability of the class of person using such services: Lister v Hesley Hall Limited.

[19]

While each case will depend upon its own facts, it is a central theme in cases where

vicarious liability has been successfully argued that an employer has established an

employee in the particular position, and has entrusted the employee to carry out a function,

and in so doing the employer becomes liable where that position of trust has been abused,

irrespective of the motivation of the employee: Mohamud v Wm Morrison Supermarkets

Plc [2016] AC 677. There is no direct Scottish authority on the issue, but there is a body of

case law from North America in which employers have been found vicariously liable for

sexual misconduct of employees who abused a comparable professional status ("Loose

Connections: matters of the heart and delictual liability" by Elspeth Reid, Edin LR 2014 18(1),

97-104).

[20]

Turning to the common law case, a duty of care is owed by the second defenders to

the pursuer and there is sufficient proximity between the parties. As averred, the pursuer is

a female falling within a class of patient with reason to use the second defenders' ambulance

service. Its staff, such as the first defender, are given access to medical records and

confidential information about those who access its service. Service users will be for the

most part vulnerable due to underlying conditions and/or whatever acute condition has

resulted in the particular need for an ambulance on the occasion of use. Such a scenario can

be distinguished from that found in the case of Thomson v Scottish Ministers relied upon by

the second defenders. In that case the victim was simply a member of the public at large

with no special or distinguishing connection or feature alluding to any proximity with the

defender. In accepting the emergency call the ambulance service had brought itself into a

relationship of proximity with this particular patient.

[21]

The pursuer offers to prove that she was part of an identifiable class of individuals

using the second defenders' service who would have contact with the first defender as part

of the health care service, such care being equivalent to that provided by hospitals and

establishing the necessary proximity for a duty of care to be owed. This is not a novel

situation in which the court is being asked to extend the principles of negligence and

accordingly the tripartite test referred to in Robinson v Chief Constable of West Yorkshire

Police [2018] AC 736 does not require to be applied.

[22]

However, if this case does not fall within the established principles of negligence it is

fair, just and reasonable to impose a duty of care. The pursuer was not merely in a wide

class of female members of the public who also happened to be vulnerable. She fell into a

very specific and narrow class of vulnerable females who required the particular services of

the ambulance service staff. Her requirement of those services brought her within a specific

class of individuals receiving care from the employees of the second defenders. The second

defenders' argument to the effect that such a duty of care, if found, would potentially give

rise to conflict is not well founded. The pursuer offers to prove that the investigation into

the prior complaint was flawed and by its very nature was not a fair investigation. Many

employers are required to have regard to balancing public safety in respect of their

employees. That latter aspect, far from giving rise to potential conflict, is an inherent part of

an employer's duty in investigating any such claim.

Decision and reasons

[23]

This is an action brought under chapter 43 and the pleadings are therefore in the

necessarily abbreviated form. There has been some discussion in the authorities of whether

the test to be applied at a debate in chapter 43 cases is higher than in an ordinary action (see

eg Bruce v Brown 2011 CSOH 165). But while it is not necessary for either party to engage in

elaborate pleading, the requirement is still to give fair notice (McGowan v W & J R Watson

Limited 2007 SC 272, 2007 SLT 169). Fair notice means that the averments must be set forth to

meet the standard of relevancy and specification. However, in a chapter 43 debate, the court

also has to take cognisance of the need for parties to use concise pleadings, and that the

averments must relate "only to those facts necessary to establish the claim"

(chapter 43.2(1)(a)). The standard tests on relevancy and specification are whether the

pursuer's case will necessarily fail even if all the pursuer's averments are proved (Jamieson v

Jamieson 1952 SC (HL) 44; 1952 SLT 257); and, in claims of damages for alleged negligence,

it can only be in rare and exceptional cases that an action can be disposed of on relevancy

(Miller v South of Scotland Electricity Board 1958 SC (HL) 20). These tests fall to be applied in

the context of the abbreviated pleadings, taken as pro veritate.

The pursuer's case against the first defender

[24]

In considering the first defender's challenge to the relevancy and specification of the

pursuer's averments, it is important to bear in mind that the pursuer alleges a course of

conduct. While reference is made to certain potentially innocuous actings at an early stage,

the account given builds up and refers to later acts such as rape. The reference to pulling the

pursuer onto the bed, and having sexual intercourse with her, forms an early part of that

course of conduct and assists with the context. It is not referred to as being non-consensual,

which would be a rape. If a rape was to be alleged it would need to be made explicit for the

purposes of fair notice. Given that requirement, which is followed when the later allegation

of rape is explicitly made, the pursuer cannot be taken as claiming that this act was

non-consensual.

[25]

There are several parts of the averments in Statement IV which the first defender

views as unclear and difficult to understand. However, when read in full they are tolerably

clear. The averments that the pursuer felt indebted to the first defender and felt under

pressure, interpreted in the context of the whole of what is pled, are not inspecific. There is

a reference to sexual intercourse by the first defender that was forceful, which the first

defender says is unclear as to whether it was a delict or a crime. But rape is not alleged in

this averment and it is said to fit within the alleged course of conduct.

[26]

It is true that the references to the first defender making sexually explicit remarks,

having humiliated the pursuer and threatened her, do not explain precisely what is claimed

to have been said or done. But there is sufficient notice to give the first defender the

opportunity to investigate and answer these points. The notice given is that there was a

course of conduct constituting an abusive relationship which includes those actings. The

first defender is able to see the thrust of the allegations and knows his own position as to

whether or not he did anything which falls within the things alleged and the consequences

stated.

[27]

On the first defender's argument that the averments do not explain the causal

connection between the contact she had with the first defender and her rolling off a bridge, it

is important to bear in mind the averments just mentioned, as well as that she had

previously felt suicidal, and that she felt trapped, took an overdose of Cyclizine and left her

home in an attempt to escape. In that context she is said to have rolled off a bridge landing

on her left side, sustaining injury which required spinal surgery. While I am considering

here the pursuer's pleaded case, I note that the first defender avers that it is believed to be

true that the pursuer "jumped off a bridge on 25 July 2017 under explanation that the first

defender was told this by one of the paramedics who attended". It is sufficiently clear from

the pursuer's pleadings that in light of the alleged conduct of the first defender and its

effects on her, this incident of rolling off the bridge is claimed to have resulted from the

abusive behaviour.

[28]

Overall, I accept that there is some lack of precision in the details of certain

allegations, but in these abbreviated chapter 43 pleadings there is still sufficient notice to

allow the facts to be dealt with at a proof. The broad point is that the context of their

relationship is set out, building up to aver abusive behaviour and its impact upon her. The

individual acts do not each require to be delictual, given that the pursuer's claim is based

upon a course of conduct.

[29]

Senior counsel for the first defender referred to the pursuer's pleadings about a past

history of psychological problems, including specific disorders or disabilities, her history of

sexual abuse, and her previous position of being suicidal. It is argued that these are not

averred to have been continuing at the time the first defender was in contact with her and so

could not establish an ongoing knowledge of vulnerability in the mind of the first defender.

[30]

However, the pursuer avers that in the course of his interactions with the pursuer

and the staff in the hostel in November 2016 the first defender learned of the pursuer's

psychological problems including PTSD, diagnosis of borderline personality disorder and

her history of sexual abuse. The pursuer also avers that on 17 April 2017 she had taken an

overdose of Propanol, again requiring emergency treatment and transportation to hospital,

and the first defender attended at the pursuer's home in the course of his employment along

with his colleague to take her to hospital. It is said that he asked about her life, that she was

in a vulnerable position at the time, and he provided her with reassurance. It is averred that

he collected her from the hospital when she was discharged, drove her home, and she still

felt suicidal. The course of conduct is said to continue from then into July 2017.

[31]

It is therefore clear enough from the averments that the pursuer offers to prove that

the first defender had information about her condition, even if not all of the precise

diagnoses she had been given. The taking of an overdose could point towards vulnerability.

The pursuer seeks to show that with his knowledge and experience he could have been in an

informed position and could have accessed her medical records. The pursuer offers to

prove, from the cumulative picture, that he was aware of her vulnerability and it is at least

implicit that her suicidal ideation formed part of that vulnerability. The averments on these

matters provide fair notice.

[32]

Senior counsel for the first defender expressed the view that the course of conduct

was not based on a relationship with the pursuer and so is irrelevant, whether under statute

or at common law. In any event, it was argued not to be a course of conduct, as some of it

was not wrongful, and the case just amounted to a small number of alleged assaults.

However, it is clear enough from the pleadings that the pursuer relies upon there having

been a course of conduct which is alleged to breach the statutory and common law duties.

While there are the alleged assaults, these are said to form part of the course of conduct of

harassment.

[33]

The pursuer founds on both section 8 and section 8A of the 1997 Act, the first of

which does not require there to have been a relationship. In any event, the pursuer avers

that during the investigation by the second defenders the first defender admitted there had

been a relationship with the pursuer, albeit denying it was sexual. In Answer 5 the first

defender admits that he made that concession. For there to be a course of conduct under

section 8, there needs to be conduct on at least two occasions and that is plainly the

proposition in the pursuer's case. On the question of whether there was a relationship that

falls within section 8A, that is a matter of fact to be determined on the evidence. The

pursuer is not contending that each element of the course of conduct was a delict in itself,

but that taken together the statutory and common law tests are met and again this is very

much a question of fact to be dealt with at a proof.

[34]

In Statement V it is averred that the first defender ought to have reported himself to

the HCPC and the first defender challenges that as irrelevant because he was not then

registered with the HCPC and hence under no duty to do so. I accept that the basis for why

he should have reported himself is not made out. However, the pursuer offers to prove that

he should have done so and while that may be challenged the fact that he was not registered

does not of itself make the averment irrelevant. The pursuer will require to establish that he

should have reported himself and the first defender can of course seek to show that such

reporting was not necessary.

[35]

The final question to be determined is whether the averments in Statement V

regarding a previous incident on which the first defender was investigated, and the

criticisms of the investigation being dropped by the second defenders, are relevant to the

case against the first defender. These are said to be simply previous unproven allegations

and not matters which the pursuer is offering to prove as true or accurate. The early parts of

Statement V deal with the complaint made by AB and the investigation of it by the second

defenders, which is said by the pursuer not to have been properly carried out. It explains

also that the second defenders simply reinstated the first defender to his normal duties

following the decision by Police Scotland not to progress the criminal case.

[36]

The pursuer argues that these averments give a bit of background to the culture in

this environment. However, while they are relevant to the case against the second

defenders, the headline point is a failure by the second defenders to properly investigate and

hence there was no actual result of the investigation. Moreover, there is no suggestion that

the pursuer will seek to prove that AB's allegations were true. As a consequence, this part of

Statement V is of no relevance to the case against the first defender.

[37]

There are averments about the second defenders' investigation into the complaint by

the present pursuer, and the investigations by the Health and Care Professions Tribunal of

the complaints made by the pursuer and by others. Reference is made in the pleadings to

the nature of the other complainers' allegations and that they gave witness statements to the

tribunal. The second defenders referred the first defender to the tribunal in respect of his

behaviour towards his female colleagues. While the outcome of the tribunal's investigation

is not averred, the pursuer refers to the tribunal holding records relating to the first

defender, the complaints made in respect of his conduct and its investigation of such

complaints. Recovery of these documents may take place and there may be evidence to be

led. The allegations by these others are open to being construed as having some similarities

with those of the pursuer and the evidence about them may potentially have a bearing on

credibility and reliability. The averments about the second defenders' investigation and that

of the tribunal are therefore relevant, because they relate to the present pursuer and to

complaints by her and others that were heard together.

[38]

As a result, on most of the averments challenged the pursuer's case against the first

defender is not bound to fail and the issues will be determined at the proof. The only

averments that fall to be excluded from probation are those in Statement V which deal with

the complaint made by AB and the criticisms of the second defenders' investigation of that

complaint.

The pursuer's case against the second defenders

(i)

Vicarious liability

[39]

The two stages for the imposition of vicarious liability are well-established. In

Various Claimants v Barclays Bank Plc [2020] AC 973, at [1], Lady Hale explained that the first

stage focuses on the nature of the relationship between the two persons and whether this

makes it proper for the law to make the one pay for the fault of the other. The second is the

connection between that relationship and the tortfeasor's wrongdoing. In the present case it

is only the second stage with which we are concerned. It was recently considered further by

the Supreme Court in Various Claimants v Wm Morrison Supermarkets Plc (Lord Reed,

paras [22], [24] and [32]) and Trustees of the Barry Congregation of Jehovah's Witnesses v BXB,

(Lord Burrows, paras [48] - [58]). In the latter case, at para [58] it is said that:

"(iii) The test at stage 2 (`the close connection test') is whether the wrongful conduct

was so closely connected with acts that the tortfeasor was authorised to do that it can

fairly and properly be regarded as done by the tortfeasor while acting in the course

of the tortfeasor's employment or quasi-employment".

[40]

Senior counsel for the second defenders accepted that the existence of a position of

trust and the vulnerability of the pursuer are not challenged. The pursuer avers that the first

defender qualified as an ambulance technician in 2014 and then qualified as a registered

paramedic on 2 March 2018. The events alleged to have occurred against the pursuer took

place between November 2016 and July 2017.

[41]

There is some force in the submissions for the second defenders that none of the

allegedly wrongful conduct occurred while the first defender was at work as an ambulance

technician, this case not being connected in time to his employment or closely connected

with the acts he was authorised to do, or linked to the second defenders' field of activities

and the first defender's place in that field. On the other hand, there are abbreviated

averments of fact which need to be explored in detail.

[42]

As referred to in Lister v Hesley Hall Limited, if it can be concluded that there was an

increased risk of exploitation by the very nature and type of trust and authority in the

context of the person's employment that can suffice. If so, this would go beyond merely

being in a position of trust and there being vulnerability. The pursuer seeks to show that the

second defenders' involvement gave access to the pursuer as a patient with access also to

information about her personal circumstances, her address, complex history and mental

health issues. There is averred to be a consistent pattern of the first defender keeping in

contact and support with the pursuer, potentially not inconsistent with the more generic

duties he carried out as a carer. While the pursuer does not contend that every ambulance

technician or paramedic continues to have such duties at every point, the facts here are

claimed to support that position.

[43]

Senior counsel for the pursuer places reliance on the averment that the first defender

regarded himself as carrying out his employment functions throughout the course of his

relationship with the pursuer, describing that as significant. It is also said that the second

defenders, in investigating and dealing with the first defender's conduct against the pursuer,

also effectively said there was a connection with the workplace. Whether these ostensibly

subjective views point in favour of a close connection can really only be determined after the

evidence is led. Equally, the pursuer relies on a course of conduct, involving a relationship

and abuse, so on the close connection point the court will need to consider whether it is a

connection with that course of conduct and whether it could ever be said that a body in the

position of an ambulance service is to be responsible for those activities.

[44]

The conclusion I reach is that it would be inappropriate, in this chapter 43 case, to

decide at this point whether the stage 2 test on vicarious liability is met. It is necessary for

the court to have evidence of all the facts and circumstances averred by each side and deal

with the issue at a proof. The averments for the pursuer do not indicate that the case is

bound to fail.

(ii) Duty of care

[45]

In contrast with the previous matter, the question of whether the second defenders

directly owed a duty of care to the pursuer is more a question of law, rather than the

application of the law to as yet unseen factual evidence. The law, as it has developed, is

fully and clearly explained by Lord Ericht in Glasgow City Council v First Glasgow No.1

Ltd 2020 SLT 75. The existence or scope of duties of care are amenable to determination at a

debate: Mitchell v Glasgow City Council 2009 SC (HL) 21, Lord Hope at paras [10] - [12]. In

Mitchell, the House of Lords applied the tripartite test identified in Caparo Industries plc v

Dickman [1990] 2 AC 605: (1) foreseeability; (2) proximity; and (3) fairness, justice and

reasonableness.

[46]

The most recent Supreme Court authority on this issue is Robinson v Chief Constable of

West Yorkshire Police. As Lord Reed explains, at paras [26] - [29], it is for the court to examine

whether a duty has been found to exist in analogous circumstances, resulting in existing

principles. It is only in a novel case, where existing principles do not answer the issue, that

the court ought to go on to examine whether, by an extension of existing principle, a duty

exists. In relation to a novel case, Lord Reed notes the earlier dicta (as applied in Caparo)

referring to proximity and that the situation should be one in which the court considers it

fair, just and reasonable that the law should impose a duty of a given scope. Lord Reed goes

on to say:

"In cases where the question whether a duty of care arises has not previously been

decided, the courts will consider the closest analogies in the existing law, with a view

to maintaining the coherence of the law and the avoidance of inappropriate

distinctions. They will also weigh up the reasons for and against imposing liability,

in order to decide whether the existence of a duty of care would be just and

reasonable."

[47]

In Thomson v Scottish Ministers the law on the liability of public custodians for the

criminal actions of those in their care was considered by (as he then was) the Lord Justice

Clerk (Carloway) at paras [43] - [55]). In relation to proximity, at para [56], the Lord Justice

Clerk explained that:

"In order to succeed, the pursuer must establish a special relationship which exposed

the deceased to a particular risk of damage as a result of negligence by the defenders

in the context of that relationship (ie Dorset Yacht Co, Lord Diplock, p 1070) or, put in

another way, that she was the subject of a special or distinct risk as a consequence of

the defender's actions (ie the majority in Couch v Attorney-General, para 112)."

Has a duty of care of this kind been found to exist in analogous circumstances?

[48]

Senior counsel for the second defenders placed reliance upon Glasgow City Council v

First Glasgow No. 1 Ltd as being analogous to the present case. However, he also

acknowledged that he has not been able to find any case that says when an employer is

performing a disciplinary investigation the employer does, or does not, owe a duty to

someone down the line. Glasgow City Council is said to have similarities, including events

that precede the critical event and failures in investigation by the then employer.

[49]

The issue in that case was whether the former employer who gave a reference to the

new employer had a duty of care to a person who came to be injured by the person for

whom the reference was given. Lord Ericht decided that there were no analogous

authorities which gave an existing principle to be followed and, as it was a novel case, the

tripartite test fell to be applied but was not met. His reasons focussed on the reference and

whether or not it affected the injured person. That person was not in a relationship of

proximity with the giver of the reference. While that case has some similarities with the

present case, it also has a number of important dissimilarities and it is not closely analogous.

[50]

Senior counsel for the pursuer also argued that there are analogous cases. Once the

ambulance service has accepted a call and the patient, or those caring for the patient, have

been informed an ambulance will attend, the service assumes a duty of care. Reference was

made to Kent v Griffiths [2001] QB 36, followed in Aitken v The Scottish Ambulance Service 2011

SLT 822. In Aitken it was held that a duty could be owed by the ambulance service to a

patient who had suffered a severe epileptic seizure and who died after the ambulance

summoned to take her to hospital took thirty-three minutes to arrive. It was submitted that

the present case is not a novel situation and the basics apply, with the second defenders

owing a duty of care to its service users. As part of their duty of care the second defenders

must have employees who are qualified and properly able to carry out their duties.

[51]

There is little doubt that the existing principles deal with a situation in which the

ambulance service will owe a duty of care to its service users (eg Kent v Griffiths and Aitken v

The Scottish Ambulance Service). However, the cases are about a duty of care after the service

has accepted a call for an ambulance to be sent and it does not arrive within a reasonable

time. In other words, the specific individual who is known to the service and is to be seen

by an employee is owed a duty. These cases do not deal with whether a person who has not

been identified, but who may possibly in the future phone an ambulance, is owed a duty of

care at a point in time some years before.

[52]

There is some lack of clarity in the pursuer's averments as to when the duty of care is

claimed to have arisen. However, it is said that the pursuer is a vulnerable individual who

would in due course have contact with the first defender in his role with the second

defenders. This is plainly a reference to a duty said to be owed to her at the time when the

second defenders were investigating the allegations made earlier against the first defender

by another person. At that time there was no contact by or on behalf of the pursuer with the

service. There is certainly no case found in which a duty of care was owed at that stage, to

unidentified members of the public.

[53]

In their pleadings, the second defenders called upon the pursuer to specify the

nature of the duty of care and any breach thereof. In the pursuer's response, there is no clear

explanation as to the nature or scope of the duty of care or indeed precisely when it arose.

However, the pursuer's averments on breach of duty include the following:

"...in light of the complaint made in 2015, the second defenders knew or ought to

have known that the first defender posed a risk to vulnerable females such as the

pursuer who had reason to use its service. The second defenders did not deal with

the prior complaint adequately. As a user of the Ambulance Service the pursuer was

within an identifiable class of vulnerable individuals who would have contact with

the first defender in his role with the second defenders and were foreseeably at risk

from his behaviour...The second defenders ought to have investigated and upheld

the prior complaint made by AB and dismissed the first defender."

[54]

Reading those averments fairly and objectively, they again indicate that the alleged

breach of duty was in 2015. In any event it seems obvious that the breach could not have

been later, as it is not averred that the second defenders had at that later time actual

knowledge of the first defender having assaulted AB; rather, the point argued is that the

second defenders did not properly carry out the investigation. There are certainly no

authorities analogous to the contention that a vulnerable individual who might at some later

stage be dealt with in an ambulance is owed a duty of care by the ambulance service.

Is the tripartite test met?

[55]

In Robinson, Lord Reed said:

"[37] A further point ... is that public authorities, like private individuals and

bodies, generally owe no duty of care towards individuals to prevent them from

being harmed by the conduct of a third party: see, for example, Smith v Littlewoods

Organisation Ltd [1987] AC 241 and Mitchell v Glasgow City Council [2009] AC 874.

In Michael's case [2015] AC 1732, para 97 Lord Toulson JSC explained the point in

this way:

`It is one thing to require a person who embarks on action which may harm

others to exercise care. It is another matter to hold a person liable in damages

for failing to prevent harm caused by someone else.'

There are however circumstances where such a duty may be owed, as Tofaris and

Steele indicated in the passage quoted above. They include circumstances where the

public authority has created a danger of harm which would not otherwise have

existed, or has assumed a responsibility for an individual's safety on which the

individual has relied. The first type of situation is illustrated by the Dorset Yacht

case, and in relation to the police by the case of Attorney General of the British Virgin

Islands v Hartwell [2004] 1 WLR 1273, discussed below. The second type of situation

is illustrated, in relation to the police, by the case of An Informer v A Chief Constable

[2013] QB 579, as explained in Michael's case [2015] AC 1732, para 69."

[56]

On behalf of the pursuer it is argued that if the tripartite test is to be applied there is

proximity, the pursuer being a vulnerable female patient requiring the services of an

ambulance. Senior counsel for the pursuer submitted that on the question of who would be

in contemplation at the time, it was misconceived for the second defenders to restrict it to

service users. It was argued that if the result of a failure to investigate is to have a

dangerous member of staff, that should not mean that only service users at the time of the

failure are in contemplation, when the staff member will continue in his employment to

present that same danger. This again confirms the breach alleged and thus when the duty of

care is claimed to have arisen.

[57]

At the time of the events in 2015, and in particular the investigation said to have not

been conducted properly, there was no relationship between the pursuer and the second

defenders which placed her at a greater risk than the general public. The pursuer does not

aver any distinct or special risk, other than a general position of vulnerability. The fact that

at that stage she had vulnerability and might in the future require an ambulance does not

suffice to show a proximate relationship. The pursuer was not in any defined class of

persons under special contemplation of the second defenders. Kent v Griffiths and Aitken v

The Scottish Ambulance Service are not closely analogous, as they deal with a duty to provide

an ambulance within a reasonable time following a 999 call.

[58]

If for any reason the pursuer's case can be interpreted as alleging a breach of duty at

the time when the first defender was in contact with the pursuer, there is again no sufficient

proximity to establish a breach of duty. It cannot be said that everyone with a physical or

medical condition satisfies the test for proximity. It goes too far to contend that every

patient calling for or being in an ambulance is owed a duty of care, the scope of which

includes the consequences of not having properly investigated the ambulance technician's

previous conduct. The investigation by the second defenders is described as inadequate, but

the averments do not provide a basis for knowledge by them of a previous assault. The

pleadings do not show that the SAC knew or ought to have known that the first defender

had in fact touched AB inappropriately in an ambulance. AB complained to the police, who

interviewed the first defender and carried out their investigation. Police Scotland did not

progress the complaint.

[59]

Having weighed up the reasons for and against imposing liability, the existence of a

duty of care of the kind sought here would not be fair, just and reasonable.

Conclusions

[60]

For the reasons given, I conclude that the submissions for the first defender succeed

only on certain parts of Statement V in the record, and the submissions of the second

defenders succeed in respect of the alleged direct duty of care owed to the pursuer. The

remaining matters will be dealt with at a proof before answer.

Disposal

[61]

In relation to the parts of Statement V noted above, I shall sustain the first defender's

argument on relevancy and exclude certain averments from probation. The other

submissions for the first defender about excluding averments on the grounds of relevancy

and specification are refused. I shall sustain the second defenders' argument that there is no

relevant basis for the second defenders being directly liable to the pursuer under a duty of

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> NM against Graeme Henderson and another (Court of Session) [2024] CSOH 84 (23 August 2024) URL: http://www.bailii.org/scot/cases/ScotCS/2024/2024csoh84.html Cite as: [2024] CSOH 84

Scottish Court of Session Decisions