Outer House allows proof in £800k personal injury claim against Scottish Ambulance Service and technician

About this case:

• Citation:
  [2024] CSOH 84
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Clark

Pursuer NM raised the action against defender Graeme Henderson based on averments of liability in terms of sections 8 and 8A of the Protection from Harassment Act 1997. The Scottish Ambulance Service was said to be vicariously liable for the actions of the first defender and to have failed to properly investigate allegations relating to the defender’s contact with another woman two years prior to his contact with the pursuer.

The case was heard by Lord Clark in the Outer House of the Court of Session. Davies KC and Fraser, advocate, appeared for the pursuer, Dewar KC and Forsyth, advocate, for the first defender, and Pugh KC and Bergin, advocate, for the second defenders.

Created the context

In the course of his employment the first defender had attended the pursuer’s home in an ambulance to take her to hospital. On several other occasions thereafter when he visited the pursuer’s home, but was not working at those times, he was said to have physically and sexually assaulted, harassed and abused her.

It was averred that on one occasion the first defender pulled the pursuer onto a bed and had sexual intercourse with her, and that she had felt indebted to him and under pressure. Counsel for the first defender criticised these averments as lacking in specification, in particular highlighting that no averment was made of the sexual contact not being consensual, nor was it explained how the first defender had threatened the pursuer.

The second defenders accepted that they had employed the first defender but submitted that none of the abusive behaviour had occurred while he was on duty as an ambulance technician. Taking the case at its highest the pursuer sought to establish that the first defender’s employment had given him the opportunity to meet the pursuer, but this was not enough to establish vicarious liability.

For the pursuer it was submitted that, as this was a chapter 43 action, detailed pleadings were not required at this stage. Nevertheless, fair notice of the case had been provided. Regarding the second defenders, the first defender’s employment created the whole context within which he was able to form a relationship with the pursuer in breach of the trust afforded to him in his employment role. Where that position of trust was abused, the employer would become liable.

Opportunity to investigate

In his decision, Lord Clark said of the abbreviated pleadings: “It is true that the references to the first defender making sexually explicit remarks, having humiliated the pursuer and threatened her, do not explain precisely what is claimed to have been said or done. But there is sufficient notice to give the first defender the opportunity to investigate and answer these points. The notice given is that there was a course of conduct constituting an abusive relationship which includes those actings.”

He continued: “I accept that there is some lack of precision in the details of certain allegations, but in these abbreviated chapter 43 pleadings there is still sufficient notice to allow the facts to be dealt with at a proof. The broad point is that the context of their relationship is set out, building up to aver abusive behaviour and its impact upon her. The individual acts do not each require to be delictual, given that the pursuer’s claim is based upon a course of conduct.”

Addressing the case against the second defenders, Lord Clark noted: “It would be inappropriate, in this chapter 43 case, to decide at this point whether the stage 2 test on vicarious liability is met. It is necessary for the court to have evidence of all the facts and circumstances averred by each side and deal with the issue at a proof. The averments for the pursuer do not indicate that the case is bound to fail.”

On the case relating to the failure to investigate the previous allegations, he concluded: “It goes too far to contend that every patient calling for or being in an ambulance is owed a duty of care, the scope of which includes the consequences of not having properly investigated the ambulance technician’s previous conduct. The investigation by the second defenders is described as inadequate, but the averments do not provide a basis for knowledge by them of a previous assault.”

Lord Clark therefore dismissed the case against the second defenders based on direct liability and excluded certain averments from probation but allowed the case to proceed to a proof on the remaining issues, including vicarious liability.