Summary of Opinion — Judge Braid
Factual and Procedural Background
The Plaintiff attended a youth group run by Company A from about age 15. The Plaintiff alleges that, over time, employees or volunteers of Company A groomed him—beginning with cigarettes and alcohol—introduced him to adult venues and older men, and that he was thereafter sexually abused by third parties met at those venues. Specific averments assert that one worker (hereafter "Employee A") provided identity documentation to enable access to adult venues and introduced the Plaintiff to older men; another worker (hereafter "Employee B" or "Employee C") made inappropriate sexualised requests on Company A's premises. The Plaintiff seeks damages. Company A sought dismissal or deletion of particular averments; the debate before Judge Braid narrowed to (i) whether Company A owed a duty to safeguard the Plaintiff, (ii) whether Scots law recognises grooming as a distinct delict, (iii) whether Company A is vicariously liable for employees' conduct, and (iv) whether liability can extend to the deliberate acts of third-party abusers. The court heard competing submissions and reserved factual issues for proof.
Legal Issues Presented
- Whether the Plaintiff has pled a relevant duty owed by Company A to safeguard him from harm by Company A's employees.
- Whether Scots law recognises a stand-alone delict of grooming (distinct from sexual assault) or whether grooming is relevant only insofar as it renders apparent consent ineffective.
- Whether Company A can be vicariously liable for the alleged grooming and introductions made by its employees/volunteers (the close connection test).
- Whether any liability of Company A can extend to deliberate criminal acts of third parties who abused the Plaintiff after introductions by Company A's staff.
Arguments of the Parties
Company A's Arguments
- Company A admitted certain duties of care but asserted that it fulfilled them and detailed its safeguarding policies and implementation.
- Company A argued that the pleaded averments about grooming and third-party sexual abuse should be deleted because they seek to impose liability for deliberate acts of unrelated third parties outside Company A's sphere of control.
- On vicarious liability, Company A accepted the employment/quasi-employment relationship (first stage) but contended the second-stage close-connection test was not met: the alleged sexual abuse did not occur in the course of employment and lacked sufficient connection to authorised duties.
- Relying on authority such as Mitchell v Glasgow City Council, Company A submitted there is reluctance to impose liability for deliberate third-party wrongdoing except in established exceptions (vicarious liability, supervision, creation of risk, assumption of responsibility), none of which apply here.
Plaintiff's Arguments
- The Plaintiff relied on proximate relationship and vulnerability: Company A provided services to, and had a duty to safeguard, a vulnerable young person.
- The Plaintiff argued that grooming and introductions to exploitative environments were active wrongful acts (not mere omissions) by Company A's workers and that those acts foreseeably produced the risk realised by third-party abusers.
- On vicarious liability, the Plaintiff submitted that the duties of the worker (including safeguarding) and the nature of the interactions meant a sufficiently close connection could be established on evidence.
- The Plaintiff distinguished Mitchell and similar authority on the basis that here the defendant played an active role that created the opportunity for third-party abuse.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Walsh v Byrne [2015] IEHC 414 |
Support for recognising grooming/abuse arising from breach of trust as a basis for extending tort law. |
Cited as persuasive authority showing a court recognising harm from grooming beyond assault; noted but not determinative for Scots law. |
| McDonald v Conroy [2020] IECA 239 |
Doubt about existence of a stand-alone tort of grooming and the difficulty of resolving such issues. |
Cited to show conflicting Irish authority and to indicate complexity of recognising grooming as a separate delict. |
| Murray v Fraser 1916 SC 623 |
Comparison to older delict of seduction and requirement of fraud or deceit for such claims. |
Used to suggest grooming might be a modern analogue to seduction, with factual issues (fraud/deceit) for proof. |
| Cathcart v Brown (1905) 7F 951 |
Quoted as authority on seduction requiring fraud or deceit. |
Referenced via Murray v Fraser to frame historical approach to comparable delicts. |
| Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 |
Modern two-stage test for vicarious liability: relationship and close connection between employment and wrongdoing. |
Applied to confirm first-stage relationship satisfied; second-stage close-connection test is fact-sensitive and for proof. |
| X v Lord Advocate [2025] UKSC 44 |
Recent Scottish context for vicarious-liability principles. |
Quoted to reinforce the applicable two-stage vicarious liability framework. |
| NM v Henderson and Another 2025 CSIH 22 |
Authority emphasising fact-sensitive nature of second-stage close-connection inquiry. |
Relied on to support that close-connection is evaluative and requires evidence; favoured allowing proof to proceed. |
| Dubai Aluminium Co v Salaam [2002] UKHL 48 |
Principle that courts make evaluative judgments considering all circumstances in vicarious liability cases. |
Quoted (via Lord Nicholls) to support an evaluative approach to connection between employment and wrongdoing. |
| C and S v Shaw and Another 2023 CSIH 36 |
Confirmation that no single test determines vicarious liability and that consideration of circumstances is required. |
Used to support the conclusion that the pursuer's vicarious liability averments require evidence and are not bound to fail. |
| Mitchell v Glasgow City Council 2008 SC 351 |
Scope of duty: reluctance to impose liability for deliberate third-party wrongdoing absent special circumstances. |
Analysed at length; Court distinguished Mitchell on facts and concluded Plaintiff's case was closer to established exceptions, so not bound to fail. |
| Mitchell v Glasgow City Council [2009] 1 AC 874 |
House of Lords approval supporting limits on duty to prevent third-party criminal acts; examples of exceptions. |
Quoted to outline categories where liability for third-party acts can arise; Court held list not exhaustive and allowed proof to determine applicability. |
| N v Poole 2020 AC 780 |
Authority on assumption of responsibility in the context of duty to protect. |
Referenced for proposition that assumption of responsibility is a recognised basis for third-party liability; no assumption of responsibility pleaded on Company A's facts. |
| Dorset Yacht Co Ltd v Home Office [1970] AC 1004 |
Example of liability for third-party deliberate acts where defendant's conduct created the risk and third parties were under supervision. |
Cited as an exception to the general rule; Court considered it illustrative and relevant to evaluating whether Company A's conduct created the opportunity for third-party abuse. |
| R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 |
Example of assumed responsibility giving rise to liability for third-party acts. |
Used as an example of circumstances where duty may arise; Court considered such examples when assessing whether Plaintiff's pleadings survive. |
| Stansbie v Troman [1948] 2 KB 48 |
Illustrative example where a defendant's act provided the opportunity for third-party wrongdoing, generating liability. |
Referentially applied to show closeness between Company A's alleged active introductions and classic examples of liability for third-party acts. |
| Smith v Littlewoods Organisation Ltd [1987] AC 241 |
Analytical framework for when omissions become legally actionable in relation to third-party acts. |
Quoted via Mitchell to show that lists of examples are not exhaustive and the analysis may be extended to new situations. |
Court's Reasoning and Analysis
Judge Braid proceeded issue by issue. On the safeguarding claim, Company A admitted certain duties but asserted compliance; the Judge held the Plaintiff's averments were relevant and factual inquiry at proof was required.
On whether grooming is a stand-alone delict, the Judge noted counsel for the Plaintiff identified no Scottish authority establishing such a duty; he observed persuasive Irish authority (Walsh) and contrary comment (McDonald), and compared the concept to the historic delict of seduction (Murray v Fraser). However, as Company A accepted that existence of such duties required evidence, the Judge allowed the grooming claim to proceed to proof without expressing a definitive view on whether Scots law recognises a separate delict of grooming.
On vicarious liability, the Judge applied the modern two-stage test (Trustees of the Barry Congregation of Jehovah's Witnesses v BXB and related authorities). The relationship stage was conceded. The close-connection second stage was fact-sensitive; precedent and evaluative principles (including Dubai Aluminium and C and S v Shaw) supported allowing the pleaded case to proceed to evidence rather than striking it out.
On liability for third-party deliberate acts, the Judge analysed Mitchell and the House of Lords authorities emphasising that liability for third-party wrongdoing is exceptional but not closed. The Judge found the Plaintiff's case—that an employee's alleged active grooming and introduction to adult venues created the opportunity for the abuse—was sufficiently close to recognised exceptions (e.g., Dorset Yacht, Stansbie) that it was not bound to fail at this stage. He therefore refused to delete the averments about third-party sexual abuse and allowed the safeguarding and vicarious-liability cases to proceed to proof.
Procedurally, under the Court of Session Rules, there were no pleas-in-law to sustain; the Judge refused the defender's motion to exclude certain averments and fixed an 8-day diet of proof.
Holding and Implications
Holding: The court denied Company A's motion to exclude the Plaintiff's challenged averments and allowed the Plaintiff's safeguarding, grooming-related and vicarious-liability averments, including those premised on subsequent third-party sexual abuse, to proceed to proof. An 8-day proof was fixed.
Implications: The immediate effect is that the factual disputes (existence/scope of duties, whether grooming amounts to a distinct delict, the close connection for vicarious liability, and whether liability extends to the deliberate acts of third parties) will be decided on evidence at proof. The court did not establish a definitive new legal precedent on whether grooming is a stand-alone delict; it declined to resolve that novel question without evidence.