NM v Graeme Henderson and the Scottish Ambulance Service

The case of NM v Graeme Henderson and the Scottish Ambulance Service recently called for a debate (strike out hearing) in the Court of Session and was heard by Lord Clark.

Background

NM pursued the claim on the basis that she had met Graham Henderson (“GH”), an ambulance technician, when he attended in an ambulance to take her to hospital. GH then attended the pursuer’s home on several other occasions but was not working at those times; when he visited, he is said to have physically and sexually assaulted her, harassed and abused her.

NM sued GH for damages in respect of alleged sexual assaults and the Scottish Ambulance Service (“SAS”) on the basis that they were vicariously liable for GH’s actions and that they were negligent.

NM maintained that SAS were negligent on the basis:

1. That they had failed to act upon a previous complaint in 2015 that GH had acted inappropriately to another woman; and
2. Had they appropriately investigated the allegations, GH would have been relieved of his duties and therefore would not have come into contact with NM and she would not have been assaulted.

First Defender’s Position

At the hearing, GH sought to have the case against him struck out on the basis that:

• The case against him did not establish that there was any wrongdoing, and NM did not offer to prove that there had been wrongful (tortious) conduct. While NM claimed that she had sexual intercourse with GH, it was unclear whether this was consensual or not. Accordingly, NM’s position was unclear as to whether GH’s conduct was criminal or not.
• There was no basis to say that there was ongoing knowledge that GH was aware that NM was vulnerable.
• NM claimed that GH should have reported himself to the Health and Care Professions Council (HCPC), however, GH was not registered with this professional body at the time.
• The previous incident where GH was accused of being inappropriate with another woman had no relevancy as GH was acquitted and the investigation was dropped.

Second Defender’s Position

SAS accepted that they employed GH and so stage 1 of the two-stage test set out by Lister & Ors v Hesley Hall Ltd in relation to the doctrine of vicarious liability was met. However, they disputed that there was sufficiently close connection between the duties of GH in the course of his employment and the abuse he perpetrated. Therefore stage 2 could not be satisfied.

The alleged incidents occurred when GH was off duty. SAS argued that the only incident that was connected with his employment was the initial meeting with the pursuer and GH. A single incident is not enough to establish sequence of events or a seamless episode which was closely connected to GH’s job.

There were no pleadings to establish that GH’s conduct was in furtherance of the second defender’s business. On this basis, the case on vicarious liability was bound to fail and should be struck out (mere opportunity was insufficient).

In relation to negligence, NM argued that she was owed a duty of care by SAS. NM’s position was that the second defender should have known that GH was a risk to vulnerable females following the unrelated complaint raised in 2015.

SAS argued that there was not sufficient proximity between the parties to impose a duty of care. NM required to establish that there was a special relationship with SAS (Thomson v Scottish Ministers); she had failed to do so, therefore there was no duty owed.

In any event, the lack of proximity between the parties meant that the pursuer’s case failed the tripartite test and there could be no duty of care as a result.

Pursuer’s Response

In relation to GH, NM argued that the pleadings were sufficient to give notice of the case against the defenders.

GH’s knowledge, the HCPC’s reporting, and the course of conduct is an issue that could be explored at trial. The pleadings gave fair notice of the case and evidence which they intended to lead at trial.

In relation to SAS, the pursuer offered to prove that GH’s employment with the second defender provided more than just an opportunity to meet the pursuer, but rather the opportunity to form a relationship with the pursuer.

The pursuer was a vulnerable person, so the GH as an employee of the second defender was in a position of trust when carrying out the functions of his employers – the employer becomes liable where that position has been abused (Mohamud v WM Morrison Supermarkets).

Decision

• His Lordship acknowledged that the pleadings were limited but the pursuer still must give notice to the parties of the case against them.
• There was sufficient information available in the pleadings for the defenders to carry out investigations, therefore fair notice was given. The facts are a matter that will require evidence to be led and be dealt with at trial.
• In relation to the previous complaint involving GH, this had not been established, and the pursuer did not offer to prove that these allegations were true. Therefore, this was not relevant to the case against GH and this element was struck out.
• In relation to SAS, the judge thought there was merit in their position that the wrongful conduct was not closely connected to GH’s employment. However, there were statements of fact which needed to be explored further. Whether there was a close connection required evidence to be lead at trial.
• There is no authority to say that a vulnerable person who may need an ambulance is owed a duty of care by the service. During the time that the previous complaint was being investigated, the pursuer did not have a relationship with the ambulance service that placed her at a greater risk than others. Not everyone with a physical/mental condition satisfies the test for proximity.
• In the circumstances, imposing a duty of care on the second defender would not be fair, just, and reasonable.
• The second defender’s argument in relation to direct duty of care was upheld on the basis that there was no relevant basis for them to owe a direct duty of care. The second defender’s argument to dismiss the case based on lack of close connection was refused as this is a matter which needs to be explored at trial.

Comment

There is no singular test for establishing whether there is a sufficiently close connection between the nature of employment and the abuse in terms of that second stage test. The facts of each case need to be considered to determine whether there is a sufficiently close connection and whether evidence will be required.

The courts are reluctant to dismiss sensitive claims at a preliminary stage without giving the pursuer the opportunity to lead evidence in support of their case. However, a pursuer must provide sufficient notice in their written case so that the defender has the opportunity to respond to the case against them. What the court considers fair notice will vary from case to case.

In the context of claims made in negligence, it should be remembered that there is no general duty to protect or prevent harm and this must be factored in when considering whether a duty of care is owed. Simply because a person uses a service does not necessarily mean that they are owed a duty of care. Consideration must be given to the relationship between both parties and whether there was a reasonable foreseeability of harm.