Outer House allows proof in civil damages claim raised by Emily Drouet’s siblings against abusive boyfriend

About this case:

• Citation:
  [2024] CSOH 32
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Harrower

The pursuers in the case included Emily’s mother Fiona Drouet, who sued in her own right and as guardian of Emily’s brother and sister, as well as other members of her immediate family. It was not disputed that Emily’s siblings had a claim as time did not run against them while they were under 16, but the question arose of whether the remaining claims had been brought too late.

The case was heard by Lord Harrower in the Outer House of the Court of Session. Ellis KC appeared for the pursuers and Primrose KC for the defender.

Not put on notice

On 18 March 2016, Emily Drouet was found dead in her student flat in Aberdeen having taken her own life. In her first term at university, she had entered into a relationship with the defender. The pursuers held the defender responsible for Emily’s death due to physical and emotional abuse resulting in psychiatric illness that led to her suicide, and sought damages under the Damages (Scotland) Act 2011.

An earlier version of the summons was served on the defender within 3 years of Emily’s death. However, the summons was not called within the requisite time limit after the date of signeting and thus the court required to treat the summons as if it never existed. The summons in the present action was not served until 3 September 2019.

In July 2017 Mr Milligan, who denied responsibility for Emily’s death, pled guilty at Aberdeen Sheriff Court to charges of assault, threatening and abusive behaviour, and indecent communication. It was only after these proceedings concluded that Emily’s parents were given the full contents of her phone detailing the full extent of his behaviour.

It was submitted for the pursuers that time did not start to run until after 3 September 2016. They were not aware that Emily had suffered a relevant psychiatric condition until after a doctor’s report in July 2021. Nothing in the early months following her death put them “on notice” that she might have suffered from a relevant condition, as they did not yet know the full scope of Mr Milligan’s behaviour.

Alternatively, it was submitted that if the action was time-barred, the court should exercise its equitable discretion prior to section 19A of the Prescription and Limitation (Scotland) Act 1973 and allow the action. Mr Milligan had not been prejudiced in his ability to defend the action, and the omission that resulted in the original action not proceeding was not the fault of any of the pursuers.

Insufficiently cogent grounds

In his decision, Lord Harrower observed: “There can be no suggestion that the definition of personal injuries for the purposes of the law of limitation had been tailored specifically to reflect the requirements of legal relevance or actionability. I agree with Mr Primrose that the words ‘impairment of a person’s mental condition’ are ordinary words that should be given their ordinary meaning.”

He continued: “[The pursuers] were aware by 12 April 2016, at the latest, of the decline in Emily’s mental state, that she had been psychologically harmed, and that she had been experiencing something akin to a nervous breakdown. I accept that Mrs Drouet did not have a professional diagnosis of Emily’s mental condition at this time. But the use of the phrase ‘breakdown’ is more than just a turn of phrase. It implies an awareness that Emily had become overwhelmed by her anxieties, and that this had become evident in her capacity to cope with ordinary, everyday activities.”

On whether the court’s equitable discretion should be exercised, Lord Harrower said: “It might be said that, since the children’s claims will in any event proceed to a proof, it would be appropriate to allow the adult pursuers’ claims to go with them. This was the course taken by Lord Bracadale in Collins v Scottish Homes (2006). However, the argument cuts both ways. The principal issue for the pursuers is that of Mr Milligan’s responsibility for Emily’s death, as a matter of civil law. Since that issue is going to proof anyway, there seems no particularly cogent reason to allow the adults’ already time-barred claims to continue.”

He concluded: “Taking all the circumstances into account, in what I acknowledge is a finely balanced decision, I have come to the conclusion that there are insufficiently cogent grounds to allow the adult claims to proceed. In agreement with Mr Drouet, who was an impressive witness, the Drouets’ primary goal is to get ‘some form of justice for what Mr Milligan did to Emily’, and that this involves ‘showing that Angus Milligan caused her death’. Whether or not that was truly the case is a question that will be determined in the children’s action, assuming it proceeds.”

Lord Harrower therefore allowed a proof in the action raised by Mrs Drouet in her capacity as parent and guardian of Emily’s siblings, but quoad ultra granted decree of absolvitor in favour of the defender.