Introduction

The case of NM against Graeme Henderson and another ([2024] CSOH 84) was heard in the Scottish Court of Session's Outer House on August 23, 2024. This personal injury action involves the pursuer, NM, seeking damages of £800,000 against two defenders: the first defender, Graeme Henderson, an employee of the Scottish Ambulance Service (SAC), and the second defender, the Scottish Ambulance Service itself.

The core issues revolve around allegations of physical and sexual assault, harassment, and abuse by Graeme Henderson towards NM, both during and outside his official duties. NM further asserts that SAC is vicariously liable for Henderson's misconduct and has directly breached a duty of care by failing to properly investigate prior allegations against Henderson.

Summary of the Judgment

Lord Clark delivered the opinion, addressing both the claims against the first and second defenders. The court evaluated the relevancy and specification of NM’s averments, ultimately allowing most of the claims against Henderson to proceed to proof while excluding certain irrelevant allegations. Regarding SAC, the court dismissed the direct duty of care claims but allowed the vicarious liability claim to proceed. The judgment emphasized the necessity for detailed evidence to establish a close connection between the defender's employment and the wrongful conduct.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to frame the legal context:

• Various Claimants v Wm Morrison Supermarkets Plc [2020] AC 989: Addressed the stages of vicarious liability, particularly the "close connection" test.
• Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] 2 WLR 953: Further elaborated on the close connection required for vicarious liability.
• Lister v Hesley Hall Limited [2002] 1 AC 215: Established that vicarious liability can extend to wrongful acts closely connected to employment duties.
• Kent v Griffiths [2001] QB 36 and Aitken v The Scottish Ambulance Service 2011 SLT 822: Defined the duty of care owed by ambulance services to their patients.
• Robinson v Chief Constable of West Yorkshire Police [2018] AC: Provided guidance on the tripartite test for duty of care.
• Glasgow City Council v First Glasgow No.1 Ltd 2020 SLT 75: Clarified the determination of duties of care in public authority contexts.

Legal Reasoning

The court’s legal reasoning centered on two primary aspects:

• Vicarious Liability: SAC's potential liability for Henderson's misconduct outside his official duties was scrutinized. The court determined that while Henderson was employed by SAC, the alleged wrongful acts did not occur in the course of his employment. However, the court did not dismiss SAC’s vicarious liability outright, suggesting that further evidence is necessary to establish a close connection.
• Duty of Care: The claim that SAC directly owed NM a duty of care was examined using the tripartite test from Caparo Industries Plc v Dickman. The court concluded that SAC did not owe a direct duty of care to NM in the context of the alleged misconduct, primarily due to the lack of a proximate relationship at the relevant times.

Additionally, the court addressed the relevancy of certain allegations made by NM, excluding those that did not directly pertain to the claims against the defenders, particularly those related to previous complaints that were not proven.

Impact

This judgment has significant implications for both vicarious liability and duty of care within the context of employer-employee relationships, especially in public services like ambulance services. Key impacts include:

• Clarification of Vicarious Liability: Reinforces the necessity for a demonstrable close connection between the employee’s wrongful conduct and their employment activities for vicarious liability to be imposed.
• Duty of Care Boundaries: Highlights the limitations employers face in being held directly liable for actions that fall outside the scope of employment, emphasizing the importance of proximity and foreseeability.
• Procedural Considerations: Demonstrates the court's approach to handling abbreviated pleadings in chapter 43 actions, balancing the need for concise pleadings with the requirement of fair notice.

Complex Concepts Simplified

Vicarious Liability

Vicarious liability is a legal principle where an employer is held responsible for the wrongful acts of its employees, provided these acts occur within the scope of their employment. This means that if an employee, while performing their job duties, commits a tort (a wrongful act), the employer can be liable for damages resulting from that tort.

Duty of Care

Duty of care refers to the legal obligation to avoid causing harm to others. In negligence law, establishing a duty of care is the first step in demonstrating that a breach of this duty led to damages. The tripartite test assesses whether the harm was foreseeable, whether there was a proximate relationship, and whether it is fair, just, and reasonable to impose a duty in the given circumstances.

Course of Conduct

A course of conduct refers to a series of actions or behaviors by a defendant that collectively amount to harassment or continuous wrongdoing, rather than isolated incidents. In this case, NM alleged that Henderson's repeated abusive behavior formed a continual pattern that justified claims under harassment statutes and common law.