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NM against (First) Graeme Henderson and (Second) Scottish Ambulance Service (Court of Session)
Factual and Procedural Background
This opinion concerns a reclaiming motion (appeal) brought by the Plaintiff against the decision of the Lord Ordinary who found the Plaintiff's direct case of breach of duty of care against the Defendant, the Scottish Ambulance Service, irrelevant in law. The Plaintiff seeks a proof on the entirety of her pleadings. The Defendant contends the Lord Ordinary was correct regarding the direct breach of duty case but cross-appeals on the issue of vicarious liability for the acts of their employee, the First Defendant, which was allowed to proceed to proof. The Plaintiff claims damages for personal injury under chapter 43 of the Rules of the Court of Session and advances two cases against the Ambulance Service: one for vicarious liability for the employee's wrongdoing and one direct negligence claim against the Service itself.
The Plaintiff alleges a history of vulnerability and repeated ambulance service use. She offers to prove that prior to 23 February 2015 a female service user complained that the First Defendant had inappropriately touched her during employment as an ambulance technician. The complaint was reported to the police, and the Service was aware but allegedly failed to investigate adequately, reinstating the employee after police did not proceed with the criminal case. Further allegations of inappropriate conduct by the employee emerged, culminating in his dismissal for gross misconduct following a complaint by the Plaintiff in 2018.
The Plaintiff contends the Service placed the employee in a position of trust with access to vulnerable users and their medical histories, allowing him to exploit that trust and commit abusive conduct against her over several months in 2017. The Plaintiff’s direct case is that the Service knew or ought to have known of the risk posed by the employee but failed to act, thereby exposing an identifiable class of vulnerable individuals like the Plaintiff to foreseeable harm.
Legal Issues Presented
- Whether the Plaintiff’s direct case of breach of duty of care against the Scottish Ambulance Service is legally relevant and should proceed to proof.
- Whether the Scottish Ambulance Service is vicariously liable for the wrongful acts of their employee, the First Defendant, under the "close connection" test.
- The competency of the reclaiming motion taken against the Lord Ordinary’s Opinion rather than an interlocutor.
Arguments of the Parties
Appellant's Arguments
- It is rare for a personal injury case to be dismissed prior to evidence; the direct negligence claim is not novel and fits within established principles of duty of care.
- The Lord Ordinary erred by treating the case as novel and failing to properly consider proximity, wrongly applying the decision in Robinson and misinterpreting Caparo.
- The Plaintiff falls within an identifiable class of vulnerable users who the Service ought to have foreseen as at risk from the employee’s conduct.
- Even if the case were novel, it would be fair, just, and reasonable to impose a duty of care.
- The vicarious liability claim should proceed to proof as the connection between employment and wrongful conduct requires factual examination, including the employee’s subjective view and the position of trust held.
Second Respondent's Arguments
- The Lord Ordinary correctly identified the question of duty of care as one of law and found the claim novel, applying the Caparo tripartite test correctly to conclude no proximity existed.
- The Plaintiff was not in a defined class of persons under special contemplation of the Ambulance Service sufficient to impose a duty of care beyond the time of accepted ambulance calls.
- Previous or prospective contact with the Service does not create an ongoing duty; the duty arises only upon acceptance of a call for ambulance service.
- The vicarious liability claim fails on the second limb of the test as the wrongful acts were not sufficiently connected to the employee’s duties; the alleged conduct mostly occurred outside working hours and was only opportunistically linked to employment.
- The employee’s subjective belief that his conduct was connected to employment is insufficient to establish the required close connection for vicarious liability.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Miller v South Scotland Electricity Board [1958] SC (HL) 20 | Rare dismissal of personal injury cases prior to evidence | Supported the principle that dismissal before proof is exceptional; the direct negligence claim should not be dismissed at this stage. |
| Robinson v Chief Constable of West Yorkshire Police [2018] AC 736 | Approach to novel duty of care cases and police duty not to increase risk | Clarified that the present case was not novel and the duty of care analysis should follow established principles rather than novel application. |
| Caparo Industries plc v Dickman [1990] 2 AC 605 | Tripartite test for imposing a duty of care in novel cases (foreseeability, proximity, fairness) | Applied to assess whether the duty of care was novel and whether it was fair, just, and reasonable to impose it. |
| Kent v Griffiths [2000] PIQR 57 | Duty of care owed by ambulance service after acceptance of call | Distinguished from the present case; duty arises only upon acceptance of call, not indefinitely thereafter. |
| Aitken v Scottish Ambulance Service and another [2011] CSOH 49 | Scope of ambulance service duty of care | Used to argue limits on duty of care; the Court found it insufficient to extend duty beyond accepted calls. |
| Thomson v Scottish Ministers 2013 SC 628 | Proximity requiring a special relationship in negligence claims involving deliberate wrongdoing | Applied to assess whether the Plaintiff was within a special class under the Ambulance Service’s contemplation. |
| Donoghue v Stevenson [1932] SC (HL) 31 | Foundational principle of duty of care to foreseeable persons ("neighbours") | Confirmed that a duty of care can extend to a class of persons foreseeably affected, supporting Plaintiff’s argument. |
| Keefe v Isle of Man Steam Packet [2010] EWCA Civ 683 | Approach to benevolent interpretation of pleadings in negligence claims | Supported Plaintiff’s contention that her averments should be generously construed at this stage. |
| Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] 2 WLR 953 | Two-stage test for vicarious liability, including "close connection" | Guided the Court’s analysis of the vicarious liability claim, emphasizing the need for fact-sensitive inquiry. |
| Lister v Hesley Hall Limited [2002] 1 AC 215 | Vicarious liability for wrongful acts closely connected to employment | Applied to examine whether the employee’s conduct was sufficiently connected to his employment to impose liability on the Service. |
| Various Claimants v Barclays Bank Plc [2020] AC 973 | Two-stage test for vicarious liability, focusing on connection between employment and wrongdoing | Used to frame the legal test for vicarious liability in this case. |
| McCluskey v Scott Wilson Scotland Limited 2024 SLT 863 | Procedural guidance on reclaiming motions and opinions | Referenced regarding the procedural irregularity of reclaiming against an opinion rather than an interlocutor. |
| Meadows v Khan [2022] AC 852 | Requirement to identify specific harm in duty of care claims | Supported the principle that an abstract duty is insufficient; harm must be foreseeable and specific. |
Court's Reasoning and Analysis
The Court first addressed the procedural issue, noting that reclaiming motions must be taken against interlocutors, not opinions, but exercised its inherent power to decide substantive issues despite this procedural irregularity. The Court analyzed whether the Plaintiff’s direct negligence claim was novel or could be accommodated within established principles. It found that the Plaintiff’s pleadings placed her within an identifiable class of vulnerable users whom the Ambulance Service ought to have foreseen as at risk due to the Service’s failure to investigate and act on prior complaints against the employee. The Court emphasized the foundational principle from Donoghue v Stevenson that duty of care extends to persons foreseeably affected by acts or omissions.
The Court concluded that the Lord Ordinary erred by treating the case as novel and failing to properly assess proximity, wrongly relying on distinctions about timing of service use. It held that the Plaintiff’s case was sufficiently pleaded to proceed to proof and was not bound to fail at this stage. Although it did not reach a final conclusion on applying the tripartite Caparo test, it noted that even if the case were novel, it would likely be fair, just, and reasonable to impose a duty.
Regarding the vicarious liability claim, the Court acknowledged that the connection between the employee’s wrongful conduct and his employment is a fact-sensitive inquiry requiring evidence. It found that the Lord Ordinary was correct to allow this issue to proceed to proof because the employee’s access to the Plaintiff’s medical information and the position of trust might establish a close connection beyond mere opportunity. The employee’s subjective view of acting in furtherance of employment, while not determinative, warranted examination. The Court rejected the Defendant’s argument that the pleadings were insufficient to establish close connection as a matter of law.
Overall, the Court allowed the reclaiming motion, recalled the Lord Ordinary’s interlocutor, refused the cross-appeal, and ordered proof to be heard on both the direct negligence and vicarious liability claims together.
Holding and Implications
The Court’s final decision is to ALLOW THE RECLAIMING MOTION and recall the Lord Ordinary’s interlocutor that dismissed the direct negligence claim. The Court also REFUSED THE CROSS-APPEAL by the Ambulance Service on the vicarious liability issue, permitting both claims to proceed to proof on the amended pleadings.
The direct effect is that the Plaintiff’s case against the Ambulance Service for breach of duty of care and vicarious liability will be heard in full. No new precedent was established, but the Court clarified the proper application of established principles to novel factual circumstances and emphasized procedural correctness in reclaiming motions. The decision underscores the flexibility of duty of care concepts to include vulnerable classes foreseeably at risk and confirms the fact-sensitive nature of vicarious liability inquiries.
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