NM against Graeme Henderson and another (Court of Session)

Factual and Procedural Background

This is a personal injury action brought under chapter 43 of the Rules of the Court of Session in which the Plaintiff seeks £800,000 in damages from the Defendant 1 and Defendant 2. Defendant 1 was employed by Defendant 2, the Scottish Ambulance Service (SAC), and attended the Plaintiff in an ambulance during his employment. Subsequently, on several occasions when not on duty, Defendant 1 allegedly physically and sexually assaulted, harassed, and abused the Plaintiff at her home. The Plaintiff claims Defendant 1 is liable under sections 8 and 8A of the Protection from Harassment Act 1997 and for breach of common law duties.

Defendant 2 is alleged to be vicariously liable for Defendant 1's conduct despite it occurring outside working hours. Additionally, Defendant 2 is claimed to have directly breached a duty of care by failing to properly investigate a prior complaint against Defendant 1 involving another woman, which, if properly investigated, would have prevented Defendant 1's contact with the Plaintiff.

The case proceeded to a debate on relevancy and specification of pleadings under chapter 43, with Defendant 1 and Defendant 2 challenging various averments and the scope of liability. The court considered these challenges and decided which parts of the pleadings should proceed to proof.

Legal Issues Presented

1. Whether the Plaintiff’s averments against Defendant 1 are relevant and sufficiently specified to proceed to proof, particularly regarding the alleged course of conduct including sexual and physical assaults, harassment, and abuse.
2. Whether Defendant 2 is vicariously liable for Defendant 1’s alleged wrongful acts occurring outside of employment duties, considering the "close connection" test.
3. Whether Defendant 2 owed a direct duty of care to the Plaintiff and if there was a breach, particularly concerning the adequacy of investigations into prior complaints against Defendant 1.
4. The applicability of the Protection from Harassment Act 1997, sections 8 and 8A, and common law principles to the facts presented.

Arguments of the Parties

Defendant 1's Arguments

• Several of the Plaintiff’s averments, including the allegation of sexual intercourse, lack clarity on whether they are delictual or criminal and should be excluded for lack of specification.
• The Plaintiff’s allegations of threats and humiliation are vague and unspecified.
• The causal connection between Defendant 1’s conduct and the Plaintiff’s injury from "rolling off a bridge" is unclear and irrelevant.
• The Plaintiff’s references to Defendant 1's knowledge of her psychological condition lack evidence of ongoing vulnerability during contact.
• Certain averments related to previous incidents and investigations involving Defendant 1 are irrelevant to the current case.

Defendant 2's Arguments

• Admitted employment of Defendant 1 satisfies the first stage of vicarious liability; however, the wrongful acts are not closely connected to employment as they occurred outside working hours.
• The mere opportunity afforded by employment to meet the Plaintiff is insufficient to establish vicarious liability.
• The alleged conduct was personal and unconnected to Defendant 1’s authorized duties or Defendant 2’s activities.
• Defendant 2 owed no direct duty of care to the Plaintiff due to lack of proximity and foreseeability at the time of the prior complaint investigation.
• Imposing a duty of care in these circumstances would not be fair, just, or reasonable, and would represent an impermissible extension of existing legal principles.

Plaintiff's Arguments

• The chapter 43 procedure permits abbreviated pleadings, and the Plaintiff’s averments provide fair notice of the case against Defendant 1.
• The alleged course of conduct should be considered as a whole, rather than isolated elements being excluded.
• Defendant 1 had knowledge of the Plaintiff’s vulnerability, including psychological conditions and suicidal ideation, which supports the claim.
• The relationship and conduct constitute harassment under the Protection from Harassment Act 1997 and breach of common law duties.
• Defendant 1 should have reported himself to the Health and Care Professions Council, and failure to do so is relevant.
• The prior complaint investigation by Defendant 2 was flawed, and Defendant 2 is vicariously liable because Defendant 1’s employment created a close connection to the wrongful acts.
• The employment relationship established a position of trust and vulnerability, making Defendant 2 liable for the abuse.
• Defendant 2 owed a direct duty of care to the Plaintiff as a vulnerable service user, and the failure to properly investigate prior complaints breached that duty.
• The case is not novel and falls within established legal principles, so the tripartite test for duty of care does not need to be applied.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Various Claimants v Wm Morrison Supermarkets Plc [2020] AC 989	Close connection test for vicarious liability; distinction between acts in course of employment and personal acts.	Used to assess whether Defendant 1’s conduct was closely connected to employment for vicarious liability.
Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] 2 WLR 953	Clarification of the close connection test for vicarious liability.	Supported the analysis of whether Defendant 1’s conduct was within the scope of employment.
Lister v Hesley Hall Limited [2002] 1 AC 215	Vicarious liability for wrongful acts closely connected to employment, especially involving abuse of trust.	Referenced to argue that the position of trust and vulnerability may establish liability of Defendant 2.
Mohamud v Wm Morrison Supermarkets Plc [2016] AC 677	Employer liability for employee misconduct abusing professional status and trust.	Used to support the argument that Defendant 2 could be liable for Defendant 1’s abuse due to employment relationship.
Thomson v Scottish Ministers 2013 SC 628	Requirements for establishing a duty of care in cases involving criminal acts of third parties.	Applied to assess whether Defendant 2 owed a direct duty of care to the Plaintiff.
Robinson v Chief Constable of West Yorkshire Police [2018] AC 736	Tripartite test for duty of care: foreseeability, proximity, and fairness.	Guided the court’s evaluation of the direct duty of care claim against Defendant 2.
Glasgow City Council v First Glasgow No.1 Ltd 2020 SLT 75	Determination of existence or scope of duty of care at debate stage.	Referenced regarding the legal threshold for direct duty of care claims.
Mitchell v Glasgow City Council [2009] AC 874	Application of the tripartite test for duty of care.	Supported the legal framework for assessing the direct duty claim.
Kent v Griffiths [2001] QB 36	Duty of care owed by ambulance services to identified patients.	Used to distinguish the scope of duty owed by Defendant 2 to the Plaintiff.
Aitken v The Scottish Ambulance Service 2011 SLT 822	Duty of care owed by ambulance service to patients regarding timely attendance.	Referenced to clarify the established duty of care context.
Various Claimants v Barclays Bank Plc [2020] AC 973	Stages for imposing vicarious liability.	Outlined the two-stage test relevant to Defendant 2’s vicarious liability.
Smith v Littlewoods Organisation Ltd [1987] AC 241	General rule that public authorities owe no duty to prevent harm by third parties.	Supported the court’s reasoning on the limits of Defendant 2’s direct duty.
Michael v Chief Constable of South Wales Police [2015] AC 1732	Distinction between liability for one’s own acts and failure to prevent harm by others.	Informed the court’s approach to the direct duty of care claim.
Dorset Yacht Co Ltd v Home Office [1970] AC 1004	Duty of care where a public authority creates a danger or assumes responsibility.	Referenced as an example of exceptions to no duty to prevent third-party harm.
Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273	Liability of public authorities for harm caused by third parties under certain circumstances.	Used to illustrate exceptions to the general rule on duty of care.
An Informer v A Chief Constable [2013] QB 579	Duty of care arising from assumption of responsibility for individual safety.	Referenced as part of the legal framework on duty of care.

Court's Reasoning and Analysis

The court analysed the pleadings under the chapter 43 procedure, which allows abbreviated pleadings but requires fair notice of the case including relevancy and specification. The court accepted that the Plaintiff’s claim is based on a course of conduct, and while some averments lack precision, collectively they provide sufficient notice to Defendant 1 and allow the case to proceed to proof.

Regarding Defendant 1, the court found that the early acts alleged, such as sexual intercourse, were not claimed to be non-consensual and therefore do not amount to rape. However, later allegations of rape and other abusive behaviour form part of the course of conduct. The court held that the Plaintiff’s averments about Defendant 1’s knowledge of her vulnerability and psychological condition are sufficient to proceed, despite some lack of detail.

The court excluded certain parts of Statement V related to a prior complaint by another woman and criticisms of investigations, as these were not relevant to Defendant 1’s case.

On the question of vicarious liability for Defendant 2, the court recognised the two-stage test focusing on the relationship and the close connection between the employment and the wrongful conduct. The court noted that none of the alleged assaults occurred during Defendant 1’s working hours, but the Plaintiff’s averments that the grooming began during employment and that the employment created a position of trust required further factual examination. The court concluded it was premature to decide this issue at debate and deferred it to proof.

Concerning the direct duty of care claim against Defendant 2, the court applied established legal principles including the tripartite test of foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty. The court found no sufficient proximity or special relationship existed at the time of the prior complaint investigation to impose such a duty. The Plaintiff’s claim that a duty arose before any contact with Defendant 2 was rejected as novel and unsupported by analogous authority. The court held that imposing such a duty would not be fair or reasonable.

Overall, the court sustained Defendant 1’s relevancy challenge only in respect of certain averments excluded from probation and upheld Defendant 2’s challenge to the direct duty of care claim. The rest of the pleadings were allowed to proceed to proof.

Holding and Implications

The court’s final decision is as follows:

1. The Plaintiff’s case against Defendant 1 will proceed to proof, except for certain averments in Statement V which are excluded for lack of relevancy.

2. The claim against Defendant 2 for vicarious liability is not dismissed and will also proceed to proof to determine if the close connection test is met.

3. The claim against Defendant 2 for direct breach of duty of care is dismissed on the basis that no such duty arises in the circumstances.

The immediate consequence is that the case will move forward to a full evidential hearing on the substantive issues of Defendant 1’s liability and Defendant 2’s vicarious liability. No new legal precedent is established regarding the direct duty of care claim, which is dismissed on established principles. A by-order hearing will be scheduled to clarify which averments are excluded from probation. Questions of expenses are reserved.