Inner House allows proof on direct liability of Scottish Ambulance service for employee’s abusive conduct

About this case:

• Citation:
  [2025] CSIH 22
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Wise

Pursuer and reclaimer NM sought to make out both a claim of vicarious liability on the part of the second defender for the actions of its employee, first defender Graeme Henderson, and a direct liability case based on the Service’s own negligence. The lord ordinary concluded that there was no relationship of proximity between the pursuer and the Service that placed her at greater risk than the general public and refused a proof on this aspect of the case.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Malcolm and Lady Wise. Davie KC and Fraser, advocate, appeared for the pursuer, Dewar KC for the first defender, and Pugh KC and Bergin, advocate, for the second defender.

Exposed vulnerable class

In her written case, the pursuer averred that she had been a regular user of the Ambulance Service since January 2015, as a vulnerable person who had regularly overdosed. She averred that Mr Henderson had, though his position and employment, established contact with her and gained knowledge of her vulnerabilities which allowed him to take advantage of her, and persist in a course of abusive conduct, including sexual abuse. She also offered to prove that another female service user, LM, had previously been touched inappropriately by Mr Henderson during the course of his employment.

The pursuer’s case for direct liability was based on the proposition that the Service knew, or ought to have known, that the first respondent posed a risk to vulnerable females and had failed to address the complaint by LM properly at the time. As a result, they had exposed a vulnerable class of individuals, including the pursuer, to contact with the first respondent and placed them at risk.

It was submitted for the pursuer on appeal that the lord ordinary had taken the wrong approach to the establishment of a duty of care. It was well-established that the dismissal of a personal injury case prior to evidence was rare, and she offered to prove that a competent investigation would have resulted in Mr Henderson’s dismissal.

The second respondent cross-appealed in relation to the lord ordinary’s decision on vicarious liability, submitting that he had failed to recognise that, taken at their highest, the pursuer’s averments would only establish that Mr Henderson’s employment only offered him the mere opportunity to meet the pursuer. None of the instances of wrongful conduct had taken place while he was on duty, and there was no basis for a proof to determine the second limb of the close connection test.

On the cross-appeal, the pursuer submitted that she had specifically averred that Mr Henderson maintained that his relationship with her was in furtherance of his employment. In dismissing him, the Service had effectively impliedly accepted that there was a close connection between his behaviour and the workplace.

Requires to be explored

Lady Wise, delivering the opinion of the court, said of the direct duty case: “In the present case, the lord ordinary held that the pursuer was not ‘in any defined class of persons under special contemplation of the second defenders’. However, in our view NM’s case as pled is at least capable of bringing her within that ambit. Even prior to the amendment of the pleadings, she had averred that she was in a particular class, namely a vulnerable young woman who had used and could be anticipated to continue using the Ambulance Service.”

She added: “On the basis of NM’s pleadings, she could establish that there was a special risk of harm to her due to the actions of the Service in failing to investigate through to an appropriate conclusion the allegations made by LM. That failure may have led to his continued work as an ambulance technician in the course of which he posed a risk to vulnerable women such as NM. If she is able to prove the key averments about the complaint by LM, a failure properly to investigate and reach a conclusion that avoided a continuing danger to vulnerable women such as her could show that the Service knew that continuing to deploy Mr Henderson on frontline duties created such a risk.”

Turning to the cross-appeal, Lady Wise noted: “The lord ordinary acknowledged that there was some force in the submissions that possibly none of the alleged wrongful conduct occurred while Mr Henderson was actually at work as an ambulance technician. However, in the context of a chapter 43 case with abbreviated pleadings we consider that there is a sufficient basis for inquiry. The connection between Mr Henderson’s employment and his access to NM’s medical records and details about her personal circumstances, requires to be explored in evidence before deciding whether the circumstances go beyond the mere holding of a position of trust.”

She concluded: “Mr Henderson’s subjective view that he was carrying out employment functions during the course of his ‘relationship’ with NM also requires examination. It is an unusual feature of the factual matrix in this case. The evidence in relation to vicarious liability has a very significant overlap with that on the direct case that we have determined is habile for proof. We consider that the two aspects of NM’s claim should be heard together.”

The court therefore allowed the reclaiming motion, refused the second respondent’s cross-appeal, and allowed a proof on the pleadings as amended.