Outer House allows proof on liability of LGBTQ+ charity for abuse committed by third parties on service user

About this case:

• Citation:
  [2026] CSOH 6
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Pursuer JWE, now aged 31, raised an action against LGBT Youth Scotland seeking damages of £900,000 for the harm he suffered due to sexual abuse. The defender had initially sought dismissal of the action, but during debate their position was watered down to an argument that certain averments be deleted from the pleadings prior to a proof.

The case was heard by Lord Braid in the Outer House of the Court of Session, with Langlands, advocate, appearing for the pursuer and Black, advocate, for the defender.

Exploitative environments

In his averments, the pursuer said that in or around 2010 he began attending group meetings at the defender’s premises as a user of its services. When he first attended, he had a history of mental health problems and was at an elevated risk of further symptoms. Over time, the defender’s employees began offering him cigarettes and alcohol and taking him out for drinks, with one member of staff, SG, giving the pursuer his passport to enable him to enter adult venues. SG then progressed to introducing the pursuer to older men in gay bars.

The pursuer further averred that he was encouraged by the defender’s workers to sleep with the older men that he met in the gay bars and was given money to perform sexual acts with them.  At least two of these men, who had no connection to the defender, sexually abused the pursuer. His position was that the defender ought to have known that users of its services were vulnerable, and to have had clear policies in place preventing workers from taking service users on nights out involving alcohol. Separatim, the defender was vicariously liable for the actings of SG, who had engaged in a course of risky behaviour closely connected to his employment.

Counsel for the pursuer acknowledged that he had identified no authority which demonstrated the existence of a duty not to groom another person or introduce another person to exploitative environments. However, if a harm arose not just from sexual assault but from the distinct actions of grooming, a pursuer should also have entitlement to recourse in that respect. The pursuer was a vulnerable child seeking the assistance of the defender, and there was a clear duty on SG to prevent the pursuer coming to harm at the hands of third parties by not making the introduction.

In respect of the vicarious liability case, counsel for the defender submitted that the case was capable of being dealt with at the level of principle and the circumstances here failed the second stage of the close connection test. The difficulty faced by the pursuer was that his abusers were not employees or quasi-employees, and there was no connection between his attendance at adult venues and the activities at the youth group. None of the exceptions to third-party liability could apply here as to make the defender vicariously liable for the wrongs of a stranger.

Thing likely to happen happened

In his decision, Lord Braid began by briefly addressing the arguments on a distinct duty in respect of grooming, saying: “It is unnecessary to express any view on these arguments since counsel for the defender accepted that whether the duties contended for existed or not could be determined only after the court had heard evidence, and that the grooming case, too, was suitable for inquiry. Accordingly, that part of the pursuer’s case must also be allowed to proceed to proof.”

Moving to the averments on vicarious liability, he continued: “It cannot be said, on the pursuer’s averments, that he is bound to fail to establish a sufficiently close link between SG’s employment and the acts which are said to constitute grooming. In C and S v Shaw and Another (2023), the Inner House said, that while authority over the abused person was not a touchstone of vicarious liability, there was no one test or list of factors which will always be relevant, and that essentially the court makes an evaluative judgment in each case having regard to all the circumstances and to the assistance provided by previous court decisions.”

Considering whether there was a case for third-party liability, Lord Braid said: “Here the pursuer and the defender were in a proximate relationship whereby it was the defender’s duty to safeguard the pursuer from harm while attending its youth group. It is to be assumed for present purposes that the act of SG in grooming the pursuer and introducing him to adult venues was in breach of the duty owed to the pursuer. It was that introduction (says the pursuer) which provided the opportunity to third party males to sexually assault the pursuer. That may not be enough for SG (and through him, the defender) to be liable for the harm, but it is at least a start.”

He concluded: “The pursuer’s case is not that SG omitted to warn him against the perils of frequenting adult venues but that he actively groomed and encouraged him to do so; and that the very thing which was likely to happen if he was introduced to such venues, did in fact happen. That is not so very far removed from the example of the decorator leaving the house unlocked, with the result that the house was burgled; or of the violent prisoner murdering his cellmate. It follows that, in light of the authorities, it cannot be said in this case that the pursuer’s case is bound to fail, that being the test at this stage.”

The court therefore refused the defender’s motion to exclude the relevant averments from probation.