Outer House allows damages action by former private school student alleging camping trip rape to continue
A judge in the Outer House of the Court of Session has allowed the action of a woman seeking £1.5 million in compensatory damages from her former school to continue after the company that ran the school sought to have it dismissed without a proof.
The pursuer, A, alleged she had been raped by a teacher during a junior school camping trip. The defender, XY Ltd, which owned and managed the school as both a junior and senior school at the time, raised a preliminary issue in respect of whether the historic abuse action should proceed.
The case was heard by Lord Woolman. The pursuer was represented by Clarke QC, and the defender by Springham QC.
Laced drinks with alcohol
The alleged incident was said by the pursuer to have happened in 1987 when she was aged 13. She had been on a camping trip with other female pupils from the school, supervised by a young male teacher whom she alleged raped her in a tent during the trip. The defender had no knowledge of the alleged rape and did not admit that the incident happened.
Evidence was given that the teacher had told the girls that, as they were a tent short on the trip, they would have to take turns sharing a tent with him. On the second night of the trip, he laced the pupils’ hot drinks with alcohol and later raped the pursuer in her sleeping bag when the two of them were alone in their tent.
The pursuer later disclosed what had happened to a psychiatrist after a failed suicide attempt following the death of her father that left her in hospital. The psychiatrist informed the pursuer’s GP and a doctor at the senior school which she now attended. The pursuer only told her mother about the incident when she was in her 20s, after blanking out the memory of the incident for a time.
The incident was reported to the police in 2013. A prosecution against the teacher on several charges involving the pursuer and another complainer was raised, but the trial never commenced after the second complainer felt unable to give evidence. Civil actions against the defender and its insurers were later commenced.
It was submitted for the pursuer that the defender was vicariously liable as the teacher’s employer for his conduct on the trip, and that her interest should prevail in any balancing exercise undertaken by the court. Further, the defender’s insurance cover for the material time would be sufficient to remove any substantial prejudice caused by the high level of damages claimed.
Limitations on claims for historic child abuse were removed in 2017. However, it was submitted for the defender in advance of any proof that the court should exercise its discretion in relation to claims of historic abuse and refuse to allow the action to proceed. It argued that the claim should be directed solely against the teacher, whose address was known to both parties, and that it would have significant difficulties investigating the incident due to unavailability of documents and witnesses.
Victim of detestable crime
In his opinion, Lord Woolman said of the potential prejudice to the defender: “The defender has established that it would be substantially prejudiced if the action proceeds. I reach that conclusion because of the sea change in its position. For many years it had no potential liability for the alleged incident. It is now exposed to significant interference with the peaceful enjoyment of its possessions.”
Lord Woolman then examined each of the defender’s arguments for substantial prejudice against it in turn. On the argument that there would be difficulty in carrying out an investigation of the incident, he said: “The pursuer’s legal team has assembled a comprehensive portfolio of documents. Key witnesses appear to be available, including fellow pupils who went on the trip, the pursuer’s mother, and the psychiatrist to whom the pursuer made disclosure in 1991.”
He continued: “There are five further points: (i) the defender had notice of the alleged rape only four years after the incident; (ii) it is unusual to have full records in historic abuse cases; (iii) some of the school records were lost in a fire, the defender having stored them in a disused building without first making copies, (iv) any lack of evidence may handicap both parties to an equal degree; and (v) the defender does not argue that the problems in this regard are so fundamental that there cannot be a ‘fair hearing’.”
Addressing the possibility of a direct claim against the teacher, he said: “I see no good reason for requiring the pursuer to bring the claim against the teacher. He may well rely on the same defence of substantial prejudice. In addition, he may be unable to satisfy any decree awarded against him, but this is a matter which the defender can test by seeking relief from him if the pursuer receives an award of damages.”
Turning to the pursuer’s interest, Lord Woolman said: “The pursuer plainly has a financial interest in favour of the action proceeding. But she also has a vital interest in securing justice. On her account she was the victim of a detestable crime. Rape lies at the top end of the calendar of offences.”
He continued: “The teacher’s conduct, if proved, had aggravating elements. It involved premeditation and breach of trust. He took advantage of a child in a vulnerable situation. The consequences of his behaviour have been life-long. In the circumstances of this case I conclude that the scales tip decisively in favour of the pursuer.”
For these reasons, Lord Woolman held that the action should continue, and allowed a proof.
© Scottish Legal News Ltd 2021