“Pre-Incident Duty of Care to Vulnerable Service Users”
Commentary on NM v (1) Henderson & (2) Scottish Ambulance Service
[2025] CSIH 22

1. Introduction

In NM v Henderson & Scottish Ambulance Service the Inner House (Second Division) of the Court of Session, comprising the Lord Justice Clerk, Lord Malcolm and Lady Wise, considered whether Scotland’s national ambulance service can be sued directly for its own negligence in retaining an employee after complaints of sexual misconduct, even before any later patient–technician contact occurs.

The pursuer (“NM”)—a vulnerable young woman with a history of overdoses—argued two parallel cases:

• Direct negligence: The Service failed to investigate an earlier complaint (from “LM”) that its technician, Mr Graeme Henderson, had sexually assaulted a patient. This omission left Henderson in post and exposed an identifiable class of vulnerable female patients, including NM, to foreseeable risk.
• Vicarious liability: The Service should also be liable for Mr Henderson’s later criminal and abusive conduct toward NM.

At first instance the Lord Ordinary struck out the direct-duty case but allowed vicarious liability to proceed. NM reclaimed (appealed); the Service cross-appealed on vicarious liability. The Inner House has now reversed the striking-out, held that both heads of claim are “habile for proof” and set a powerful precedent on a public body’s pre-incident duty of care.

2. Summary of the Judgment

Lady Wise, delivering the opinion of the court, held:

1. Competency: Despite procedural irregularities (the original order did not reflect the reasoning in the opinion) the reclaiming motion was competent; the court exercised its inherent power to decide the substantive issues, echoing McCluskey v Scott Wilson Scotland Ltd.
2. Direct duty of care exists in principle:
   • Applying established negligence principles, notably Donoghue v Stevenson, an ambulance service may owe a duty to an identifiable class of vulnerable prospective patients.
   • That duty can arise before any specific call-out if the service knows (or ought to know) that retaining an employee poses a real risk.
   • NM’s pleadings, if proved, fit within existing law; therefore the case is not “bound to fail” and must proceed to proof.
3. Vicarious liability should also go to proof: The “close connection” test is fact-sensitive and cannot be decided on the abbreviated chapter-43 pleadings. Evidence is required on how Mr Henderson’s employment facilitated his wrongdoing.
4. Result: Reclaiming motion allowed; Lord Ordinary’s interlocutor recalled; cross-appeal refused; proof allowed on both direct and vicarious cases.

3. Analysis

3.1 Precedents Cited and Their Influence

• Donoghue v Stevenson (1932): The “neighbour principle” supplied the conceptual foundation. Lady Wise stressed that proximity can encompass classes of persons foreseeable at the time of the negligent act, even if the specific victim is unknown.
• Caparo v Dickman (1990) & Robinson v Chief Constable of West Yorkshire (2018): These authorities remind courts that only in genuinely novel scenarios must they apply the Caparo tripartite test. Here, existing principles sufficed; no new test was needed.
• Thomson v Scottish Ministers (2013): Demonstrated the requirement of a “special relationship” in cases of deliberate third-party wrongdoing. The Inner House distinguished Thomson, finding that NM’s pleadings could indeed establish such a relationship.
• Kent v Griffiths (2000) & Aitken v Scottish Ambulance Service (2011): These English and Scottish cases fix the traditional temporal starting-point for an ambulance service’s duty—after it accepts a call. The Service relied on them; the Inner House refused to confine duty so narrowly.
• Lister v Hesley Hall (2002) and Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB (2023): Provided the “close connection” analysis for vicarious liability. The court emphasised the necessity of fact-specific inquiry before determining that connection.

3.2 Legal Reasoning

The Inner House’s reasoning ran in three strands:

1. Established Principles over Novelty. The court rejected the Lord Ordinary’s characterisation of NM’s claim as “novel”. Once framed as a question of foreseeability to an identifiable class (vulnerable female service users), the standard negligence framework sufficed.
2. Proximity without Immediate Contact. Proximity can arise from a relationship of risk creation: by failing to investigate prior allegations, the Service arguably created or continued a source of danger affecting future patients. Temporal distance does not by itself defeat proximity.
3. Fact-Sensitivity of Vicarious Liability. Given the overlap of evidence for direct and vicarious claims and the subjective (yet potentially relevant) belief of the tortfeasor that he acted in an employment context, summary dismissal would be premature.

3.3 Potential Impact

The decision is likely to ripple across four dimensions:

1. Public-Service Employers. State agencies (police, ambulance, fire, NHS boards) now face an arguable direct duty to prospective service users where complaints about staff wrongdoing are mishandled.
2. Scope of Proximity. Scottish courts have confirmed that proximity can be established before direct interaction, provided the claimant belongs to a foreseeable class uniquely exposed to risk.
3. Pleadings Culture. Under chapter 43, even “abbreviated” averments must be scrutinised generously; strike-outs will be rare where factual development could clarify duty.
4. Vicarious Liability Doctrine. By refusing to decide the close-connection limb without evidence, the court underscores the practical overlap between direct employer negligence and vicarious theories—future litigants may routinely plead both.

4. Complex Concepts Simplified

Duty of Care

A legal obligation to take reasonable care to avoid acts or omissions that could foreseeably harm someone.

Proximity

The closeness—physical, relational or causal—between parties that justifies imposing a duty. It need not require prior personal contact if the defendant’s conduct creates a risk to a definable class.

Vicarious Liability

Liability imposed on an employer for wrongdoing committed by an employee when that wrongdoing is so closely connected with the employee’s duties that it is fair and just to hold the employer responsible.

Close-Connection Test

The stage-two analysis (after confirming an employment relationship) asking whether the employee’s wrongful acts are sufficiently related to their authorised duties.

Reclaiming Motion

The Scottish Court of Session’s term for an appeal from the Outer House (single judge) to the Inner House (three-judge bench).

Interlocutor

The formal court order that gives legal effect to a judge’s opinion. Without it, appeals can stumble procedurally.

Chapter 43 Procedure

A streamlined personal-injuries process in the Court of Session permitting abbreviated pleadings but imposing duties of fair notice.

5. Conclusion

NM v Henderson & Scottish Ambulance Service is significant because it:

• Affirms a “pre-incident” duty of care owed by a public-facing employer to vulnerable people foreseeably affected by its staff-management decisions.
• Clarifies that proximity may exist without prior patient contact, provided the claimant lies within an identifiable risk class known to the defendant.
• Reinforces the evidential nature of the close-connection inquiry for vicarious liability—Scottish courts will not lightly dismiss such claims at the pleadings stage.
• Warns of procedural vigilance; judges must ensure that their opinions and interlocutors align to avoid competency pitfalls.

Ultimately the Inner House restores NM’s opportunity to prove her case in full. Should she succeed on the facts, Scottish jurisprudence will have moved decisively toward holding public services answerable—not merely for employees’ acts, but for management decisions that expose foreseeable and identifiable vulnerable individuals to harm.