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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Clarke
Lord Marnoch
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[2007] CSIH 27
A1523/00
OPINION OF LORD OSBORNE
in
RECLAIMING MOTION
in the cause
A. McE. (A.P.)
Pursuer and Respondent;
against
(FIRST) THE REVEREND JOSEPH HENDRON and OTHERS
Defenders and Reclaimers:
_______
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Act: McEachran, Q.C., Miss
Stirling; Drummond Miller, W.S. (for
Ross Harper, Glasgow) (Pursuer and
Respondent)
Alt: Clancy, Q.C., E G Mackenzie; Burness, W.S. (for McSparran & McCormick,
Glasgow) (First to Eighth Defenders and Reclaimers)
Cullen, Q.C., Smith; Solicitor
to the Scottish Executive (Eighteenth Defender and Reclaimer)
11 April 2007
The background circumstances
[1] The
pursuer in this action was born on 15 September 1953.
He concludes for payment by the defenders jointly and severally or
severally to him of the sum of £100,000, with interest, as damages for personal
injuries sustained in consequence of events which are said to have occurred
while the pursuer was a resident at St. Ninian's Approved or List D School,
Gartmore House, Gartmore, Stirlingshire.
The pursuer convened a total of eighteen defenders. The first to seventh named defenders are
individuals convened as representing the Congregation or Order of the de La
Salle Brothers. The eighth named
defender is designed as the Congregation of the de La Salle Brothers. The ninth to fourteenth named defenders were persons
convened as representing the Managers of St. Ninian's School, Gartmore House,
Gartmore, Stirlingshire. The fifteenth
named defender was designed as "The Managers of St. Ninian's School". The sixteenth named defender is an individual
designed as, in religion, Brother Benedict.
The seventeenth named defender was Stirling Council. The eighteenth named defender is the Lord
Advocate, as representing the statutory successors to the Social Work Services
Group, and the Scottish Education Department.
The summons was signetted on 8 May 2000.
[2] By
an interlocutor of the court, dated 29 March 2006, the ninth to fifteenth named defenders were, of
consent, assoilzied from the conclusions of the summons. The sixteenth named defender did not lodge
defences. In consequence, on 8 June 2004, the court decerned against
him in absence for payment to the pursuer of the sum of £50,000, with interest
at an appropriate rate. In terms of a
Joint Minute, No. 38 of process, by an interlocutor dated 8 October 2003, the
seventeenth named defender was assoilzied from the conclusions of the
summons. Accordingly, only the first to
eighth named defenders and the eighteenth named defender remain before the
court.
[3] The
pursuer's pleadings are extensive, extending to some 99 pages. I shall not attempt to summarise them
here. Suffice it to say that the pursuer
alleges that he was the victim of damaging and inappropriate conduct at the
hands of the staff of St. Ninian's Approved School, in consequence of
which he claims to have suffered both physical and psychological injury. The physical abuse alleged is of a serious
nature, including deliberate assaults by punching and kicking on all parts of
his body, as well as force feeding of inter
alia the pursuer's "own bodily fluids", being made to suck on bars of
carbolic soap, and being made to stand in a cold shower in darkness. In outline, his case against the first to
eighth named defenders is based on averments to the effect that members of the
de La Salle Order were sent to work at the Approved School. Most of the teachers in the school were
members of that Order. The headmaster, a
Brother Thadius, was a member of the Order.
So far as the eighteenth named defender is concerned, the pursuer's case
is based upon averments in Condescendence I to the effect that he represents
the Scottish Ministers, who are the statutory successors to the Secretary of
State for Scotland, by virtue
of section 53 of the Scotland Act 1998
"in respect
of certain functions including approved schools and list D schools formerly
performed by the Scottish Education Department and the Social Work Service
Group (S.W.S.G.), on behalf of the Secretary of State."
The pursuer avers that the
certificate of approval of St. Ninian's School was issued by the Scottish
Education Department prior to 7 June
1963. The pursuer also
avers in Condescendence V that, on 20 June 2003, the sixteenth named defender
was convicted in the High Court of Justiciary in Edinburgh of assaulting the
pursuer on various occasions between 7 June 1963 and 31 December 1964, by
dragging him bodily from his bed, pulling him along corridors and compelling
him to take a cold shower, forcibly feeding him with sago and compelling him to
eat his own vomit, and repeatedly punching and kicking him on the body and
striking him with knotted leather or rubber laces, all to his injury. He also avers that the sixteenth named
defender was convicted of assaulting other children in the school and of
certain sexual offences. In
Condescendence VII, the pursuer sets forth the basis of his case against the
first to eighth named defenders. In
Condescendence VIII the pursuer makes a case based upon the alleged breach of
statutory duties of the headmaster of the school in question. In Condescendence X the pursuer makes a case
against those for whose wrongdoing the eighteenth named defender is said to be
liable. In Condescendence XI the pursuer
specifies the nature and extent of the consequences of the acts and omissions
which are the basis of his case. In
Condescendence XII, averments are made relating to the application of the
provisions of the Prescription and Limitation (Scotland) Act 1973
to the circumstances of this case. It
should also be mentioned that all of the defenders remaining before the court
have tabled a number of pleas-in-law, including challenges to the relevance of
the pursuer's case against them and also pleas to the effect that his case is
time-barred in terms of the 1973 Act.
[4] By
interlocutor of 2 October
2002, the case was appointed to the Procedure Roll, but was not
heard on that Roll until 11 June
2004, on account of amendment and other procedure taking place
between those dates. The Procedure Roll
debate commenced on 11 June
2004, but was interrupted by further amendment procedure,
avizandum ultimately being made by the Lord Ordinary on 13 December 2004. On 13 September 2005, the Lord Ordinary, having resumed
consideration of the cause pronounced an interlocutor in, inter alia, the following terms:
"(1) Repels the pursuer's first and second
pleas-in-law only so far as relating to breach of statutory duty, and excludes
from probation the averments in Articles 8 and 9 of Condescendence.
(2) Excludes from probation the following
averments as being irrelevant and/or lacking in specification,
(a) at page 11B-C: 'some of the staff who worked at the school
were
employed by
the eighteenth defender's statutory predecessors'
(b) at page 11C-D: the passage relating to the school managers'
insurance
arrangements, inserted by the pursuer's Answers number 61 of process
beginning with the words 'With reference to the averments introduced by the
tenth to fifteenth defenders ... ' and ending with the words 'called upon to
admit or deny the existence of insurance as a matter within their knowledge.'
(c) at page 37E to 38A: 'The pursuer believes and avers that the
authorities
including the SED and the social workers knew what was happening at the school
prior to 1963.' together with the related averment at page 61C: 'It had a duty to take reasonable care not to
send boys such as the pursuer to a school where they were likely to be
assaulted.'
(d) the passage beginning at page 61B with
the words 'had a duty to
inspect the
school from time to time, and at least every 6 months' to and including the
words 'placed out on licence as soon as possible. It' (at page 61C-D).
(e) the passage beginning at page 61D-E with
the words 'After
1 November 1963, the
Secretary of State had a duty' to and including the words 'directions had not
been complied with' (at page 62B).
(3) Allows a preliminary proof before answer
on the question of the status and circumstances of the school managers,
including the terms and conditions of their appointment; whether they were
acting as individuals or whether they constituted some sort of unincorporated
association; the identity of those managers
in post during 1963 to 1966; and whether
the managers were employers such as they would be vicariously liable for the
acts of the abusers referred to on record and Assigns day of at
10 a.m. as a diet thereon; grants
diligence for the citation of witnesses and havers.
(4) Allows a preliminary proof before answer
on time-bar issues in terms of both section 17(2)(b) and section 19A to be
conducted on the same basis as that outlined in paragraph [18] of B v Murray
2004 SLT 967, namely that the proof should proceed on the basis that the
pursuer's averments about what happened to him at St. Ninian's should be taken pro veritate, and the issues to be
judged on a preliminary basis should be directed to whether or not the pursuer
can satisfy the terms of section 17(2)(b) of the Prescription and Limitation
(Scotland) Act 1973, failing which whether the court should exercise its
discretion in terms of section 19A of the aforementioned Act, to take place
after the preliminary proof referred to in the foregoing paragraph, Assigns day of at 10
a.m. as a diet thereon; grants diligence
for the citation of witnesses and havers. ... ".
Against that interlocutor, the
pursuer, the first to eighth named defenders and the eighteenth named defender
have all reclaimed.
The grounds of appeal
[5] The
grounds of appeal for the first to eighth named defenders are in the following
terms:
"1. The Lord Ordinary erred in failing to
sustain the first plea-in-law for the first to eighth defenders relating to
time-bar. In particular the Lord Ordinary
erred:
(1) in holding (at paragraphs [130] to
[135]) that the relevancy and
specification
of the pursuer's averments in Article 12 of Condescendence (at pages 70B to
78C) relating to section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973
could not be determined without enquiring into the facts. The Lord Ordinary ought to have held that
these averments were irrelevant and lacking in specification in that (a) they
are confused, deficient, contradictory and lacking in candour and (b) they
disclose that for a period of more than three years before the action was
commenced the pursuer was either aware, or it would have been reasonably
practicable for him to have become aware, of the statutory facts set out in
section 17(2)(b) of the 1973 Act
(2) In holding (at paragraph [136]) that the
pursuer's averments in Article
12 of
Condescendence (at pages 70B to 78C) relating to section 19A of the
Prescription and Limitation (Scotland) Act 1973
entitled him to a preliminary proof on whether the court should, in any event,
exercise its equitable power to allow the action to proceed. The Lord Ordinary ought to have held that
these averments were irrelevant and lacking in specification in that they are
confused, deficient, contradictory and lacking in candour.
2. The Lord Ordinary erred in failing to
sustain the second plea-in-law for the first to eighth defenders. In particular the Lord Ordinary erred:
(1) In holding that the pursuer has pled a
relevant case based on the
vicarious
liability of a principal for an agent, the correct position being that the
pursuer has not pled that that relationship existed or how it came into being.
(2) In respect that the essence of an agency
relationship is that the agent
expressly
or impliedly consents to act so as to affect the principal's relationships, for
failing to notice that that feature is not present or pled. Membership of the Order does not involve a
contract between the member and the Order.
The constitution of a voluntary association is a contract between the
members.
(3) In holding that voluntary associations
are vicariously liable for delicts
committed
by their members qua agents of the
association. This proposition is
un-supported by authority and is not supported by the cases mentioned in the
Stair Encyclopaedia, volume 2, paragraph 84 cited by the Lord Ordinary.
(4) In holding that principals are vicariously
liable for the delicts of their
agents on
the same basis as employers are vicariously liable for their employees.
(5) In holding that issues concerning
enforcement and rights of relief are
'matters
for tactics, evidence and submission', the proper analysis being that they are
matters of relevancy.
(6) In holding that the ratio in Lister v Headley Hall [2002] 1 AC 215 is
applicable
to the circumstances of this case. Lister is concerned with an
employer/employee relationship in the true sense. It is factually and legally distinguishable
from this case on the grounds that the defendants in Lister owned and operated the school where the abuse occurred. They assumed legal responsibility for the
children and in turn delegated that responsibility to their abusive
employee. In this case the Order were
not legally responsible for the care and welfare of the children in any manner
comparable to the defendants in Lister.
3. The Lord Ordinary erred by ordering a
preliminary proof in respect of 'the status of the school managers'. The existence of that body as a legal
personality distinct from the individual managers from time to time is
recognised by the primary and secondary legislation governing their activities
and duties."
[6] The
grounds of appeal for the eighteenth defender are in the following terms:
"1. Direct Liability
1.1 The Lord Ordinary erred in paragraphs 102
to 104 of her Opinion.
1.2 The pursuer relies upon certain
information having come to the attention of the Scottish Education Department
but gives no fair notice of the case against the Department. It is averred inter alia that the Department noted that concerns regarding
verminous heads, blows and the physical care of the boys ought to be kept under
review. These averments are insufficient
to justify the allegation that the SED knew that boys in the school were being
regularly and routinely assaulted. There
is no adequate factual basis averred for the duty to take reasonable care to
remove boys such as the pursuer from the School. In any event, there are no averments that the
Department failed to respond to the information communicated to it. It is not averred that the Department failed
to keep matters under review. It is not
averred that the Department's response was inadequate. There are accordingly no relevant averments
of breach of duty on the part of the Department.
1.3 The Lord Ordinary's reasoning in
paragraph 104 based on Hughes v The Lord Advocate 1963 SC (HL) 31 is
misconceived. The question raised by the
pursuer's averments in the present case is not whether the precise form of harm
would have been foreseeable, but the logically prior question as to whether the
pursuer has averred sufficient factual basis for the existence of a duty to
remove children from the School. The
Lord Ordinary has not addressed her mind to this prior question. Her approach does not address the true
question: whether there is a sufficient
basis in the pursuer's factual averments for the extremely wide duty alleged to
have been owed by the Scottish Education Department.
2. Vicarious Liability
2.1 The Lord Ordinary erred in paragraphs 107
to 111.
2.2 The pursuer has inconsistent averments
about who employed carers such as Brother Benedict. At 10B the averment is that 'They' (i.e. the
ninth to fifteenth defenders) were responsible for the appointment, suspension
and dismissal of staff. At 11B the
pursuer avers that 'Some of the staff who worked at the school were employed by
the eighteenth defenders' (sic)
statutory predecessors'. There are no
specific averments of which members of staff were employed by those for whom
this defender is liable and, accordingly, the Lord Ordinary excluded the
averment at 11B from probation (paragraph 140 of the Opinion).
2.3 The Lord Ordinary's conclusion at
paragraph 111, entertaining the possibility of vicarious liability 'If the SED
were to be regarded as being in some way
involved in the employment of a monk such as Brother Benedict', is speculative
and does not reflect any averment on Record.
It may reflect the vague and legally unprecedented contention for the
pursuer, recorded at paragraph 39 of the Opinion, that there was 'a very unusual
quasi-employment situation operating at the school'. This defender is entitled to fair notice of
any case that those for whom he is responsible were involved in the engagement
of specific members of staff to such an extent that they can be vicariously
liable for the actions of those members of staff. The exclusion of the unspecific averment at
11B simply highlights the need for more specification from the pursuer.
3. Non-delegable duty of care
3.1 The Lord Ordinary erred in law in
paragraphs 112 to 119 of the Opinion.
3.2 The Lord Ordinary refers to Commonwealth
authority to 'show that the concept of non-delegable duty of care may be highly
relevant in the circumstances of abuse of staff by inmates at residential
establishments' but in each of the cases referred to the court decided against
a duty of care of the scope averred in this case by the pursuer in the crucial
amendments recorded in paragraph 16 of the Opinion. Such duty would, in effect, impose strict
liability for criminal acts of carers inflicted on children.
4. Time-bar
4.1 The Lord Ordinary erred in law in
paragraphs 130 to 138.
4.2 The Lord Ordinary concluded at paragraph
134 that the pursuer's averments are, on one view, confused and at times
possibly self-contradictory, stating that this may be attributable to a lack of
candour. Both the style of pleading and
the general state of confusion are similar to that in B v Murray 2004 SLT 967 in which the case for delayed commencement of the time-bar was held to be
irrelevant and a preliminary proof restricted to section 19A. This defender is entitled to fair notice of
the facts as they were known to the pursuer and to a clear explanation of the
basis on which (a) he seeks to defer the commencement of the time-bar period
and (b) rely on section 19A."
[7] The
grounds of appeal for the pursuer are in the following terms:
"Allowance
of a preliminary proof on time-bar rather than a proof at large
The Lord Ordinary erred in paragraph
137 of her Opinion by allowing a preliminary proof on time-bar, rather than a
proof at large. The matters to be raised
at the preliminary proof are not matters wholly distinct from the merits of the
action. The pursuer would require to
give evidence of the abuse he suffered, and why that prevented him from raising
an action within three years of reaching majority. He would require to give evidence of the
abuse and its effects on him again at any subsequent proof. Different Lords Ordinary might have different
views on the same evidence. If the
pursuer were required to proceed to preliminary proof and then to a proof on
the merits, there would be repetition of the evidence. There would be further delay and
expense. Noble v De Boer 2004 S.C.
549, McCafferty v McCabe (1898) 25 R. 872, Thomson v Newey & Eyre Limited 2005 S.C. 373, Burrows Machines Limited v Davie
Crawford & Partners 1976 S.L.T. (Notes) 35, McGhee v British
Telecommunications plc (20 December 1995) (Lord Hamilton, unreported), Woodland v The Advocate General 2005 S.C.L.R. 163, Ablett v Devon County Council
(4 December 2000) (Sedley, L.J.; Court
of Appeal, unreported)."
Submissions of junior counsel for the first to eighth defenders
[8] The
motion of the first to eighth defenders was that the Lord Ordinary's
interlocutor of 13
September 2005 should be recalled.
Pleas-in-law numbers 1 and 2 for these defenders should be sustained,
with the result that the action, so far as directed against them, should be
dismissed.
[9] Counsel
explained that his submissions would fall into a number of distinct chapters. The first of these related to the issue of
limitation. His submission was that the
action was time-barred for the reasons disclosed in paragraphs 1 to 3 of these
defenders' written submissions. It was
contended that the pursuer's pleadings relating to section 17(2)(b) of the 1973
Act were irrelevant. They did not make
sense. To the extent that it was
possible to make sense of those averments, it was plain that, for a period of
more than three years before the commencement of the action, the pursuer had
been aware of the matters specified in section 17(2)(b) of the 1973 Act. The sub-paragraphs (i), (ii) and (iii)
related to the seriousness of the injuries, causation, and the responsibility
of the defender. It was of significance
that section 17(3) required that, in the computation of the period specified in
subsection (2), there should be disregarded "any time during which the person
who sustained the injuries was under legal disability by reason of nonage or
unsoundness of mind." The period or periods
to be disregarded were thus confined to the periods specified there.
[10] It would be necessary for the court to consider the decision in
Carnegie v The Lord Advocate 2001 S.C. 802.
For the present purposes what was said by Lord Johnston in paragraphs 12
to 22 was important. In connection with
the matter referred to in section 17(2)(b)(i) the averments of the pursuer at
page 76C and following were of significance.
They were, to an extent, a response to what was averred at page
87C-D. The undisputed situation was that
a social enquiry report in respect of an appearance by the pursuer in Alloa
Sheriff Court on 30 September 1996 had been prepared. In that Report, it was narrated:
"Mr. (McE)
... described the bizarre and awesome punishment regime which he remembers as
having been in force at the time. Mr. (McE)
remained there for three years."
That was a reference to Gartmore School and it
demonstrated that, at the time of the preparation of that Report, the pursuer
had had an awareness of the relevant matter.
The present action had been served on the first to eighth defenders on 18 May 2000. Accordingly, the pursuer had been aware of
those matters for a period in excess of three years prior to the raising of
this action. Counsel accepted that
section 17(2)(b)(i) could accommodate a genuine case of suppression of memory,
but this case was not that. The
averments just referred to were inconsistent with any such situation.
[11] Furthermore, counsel submitted that, in his averments, the
pursuer did not consider or deal with the problem created by the fact that some
of the conduct complained of might properly be seen as reasonable
chastisement. However, he accepted that
the pursuer had averred that he was the victim of assaults. Something which was an assault could not
simultaneously be reasonable chastisement.
[12] The pursuer's averments, it was submitted, were so confused,
deficient, contradictory and lacking in candour as to be irrelevant. That was true of the averments relating to
section 17(2)(b) of the 1973 Act. The
major contradiction lay in the situation in which the pursuer averred a
continuing awareness of the alleged assaults, but at the same time, appeared to
rely on suppressed memory. Details of
the alleged inconsistencies and shortcomings in the pursuer's pleadings were to
be found in paragraph 6 of these defenders' written submissions. However, counsel accepted that, in terms of
section 17(2)(b)(i) of the 1973 Act, it was possible to have an awareness at a
particular time of injuries which were trivial, but that awareness of the
serious nature of the injuries in reality might emerge only at some later
stage. In this connection, reliance was
placed on Webb v B.P. Petroleum Development Limited 1988 S.L.T. 775, at
page 776. He also relied on Cowan v Toffolo Jackson & Company Limited 1998 S.L.T. 1000, at page
1002. Reference was also made to Agnew v Scot Lithgow Limited (No. 2) 2003 S.C. 448, at page 452. The latter case showed that what might be
called constructive awareness outwith the triennium
had to be excluded. As pointed out in
paragraph 6(6) of the written submissions, the pursuer's averments about the
allegedly disabling effects of the alleged abuse were contradictory and
irrelevant. Even though he might have
been ill and, in consequence, inactive, that circumstance did not affect the
application of section 17 of the 1973 Act.
[13] However, the nature of the pursuer's case involved concern with
actual awareness. The case was not
concerned with constructive awareness.
Furthermore, the pursuer did not make a case of partial, but
insufficient actual awareness. It was
these defenders' position, as set out in paragraph 7 of the written
submissions, that the pursuer's averments were irrelevant because there was an
inescapable inference that he had had actual awareness of the statutory matters
from a date prior to the commencement of the triennium. Thus the test in
section 17(2)(b) could not be met by the pursuer. In this context, counsel relied on B v Murray
2004 SLT 967, at pages 969 to 970.
[14] If it were alleged that the pursuer had suffered both physical
injuries at an early date and later psychological injuries at a much later
date, in order to avoid the three year period starting at the earlier date, it
would be necessary to plead separately the physical and psychological injury
cases. That had not been done here. What he had done was to claim for both
physical and psychological injury going back to his time at Gartmore School, with the
result that the whole claim was time-barred.
In Carnegie v The Lord Advocate, at pages 813 to 814,
it had been recognised that there could be separate triennia. However, that was
not the approach adopted in the presentation of this case. That was particularly apparent from the
averments in Condescendence XI.
[15] Although an attempt had been made by the pursuer in the Minute
of Amendment, No. 79 of process, to address certain of the problems that
existed in this case in relation to limitation, the averments added there did
not assist the pursuer. He averred both
silencing and suppression. These
concepts were inconsistent. The former
inferred an awareness of something, about which the subject was prohibited from
speaking. Suppression involved a
situation where the information ceased to be part of the subject's conscious
recollection. However, neither of these
situations could readily be brought within the scope of the statutory
exceptions to the operation of the limitation period. Several of the averments in the Minute of
Amendment were vague and unsatisfactory.
In addition, the last sentence in the paragraph added to the pleadings
was inconsistent with the averments concerning the preparation of the Social
Enquiry Report in 1996.
[16] Counsel moved on to present his submissions relating to the
possible application of section 19A of the 1973 Act to the circumstances of
this case. He drew attention to the
contents of paragraphs 8 to 10 of the written submissions. In essence, the submission was that the
averments made relating to section 19A were incoherent and irrelevant. It was impossible to make sense of the
pursuer's case in relation to section 17(2)(b) of the 1973 Act; likewise it was impossible to make sense of
the pursuer's case under section 19A of that Act. The two cases were, to an extent,
related. If a pursuer wished to invoke
section 19A, it was necessary for him to aver a reasonable explanation for his
failure, throughout the period of the delay, to raise proceedings timeously. However, that had not been done. In connection with this part of his
submission counsel relied on Clark v McLean 1994 S.C. 410, at pages 411
and 413. That case showed that the onus
was on the pursuer to satisfy the court that the terms of section 19A should be
applied. Before that could be done, the
court had first to determine whether the pursuer's case in relation to the
application of that section was relevant.
Furthermore, in Cowan v Toffolo Jackson & Company Limited
the relationship between section 17 and section 19A was discussed. The invocation of section 19A proceeded on
the hypothesis that adequate averments had been made in relation to section
17. One of the particular problems that
arose in connection with the pursuer's case under section 19A was that the
pursuer had not candidly averred his state of awareness and conduct throughout
the period which had to be considered.
In this connection reliance was placed on Prescription and Limitation, Johnston, paragraphs 12.10 and
12.11. A reasonable explanation for
inaction required to cover the whole period of the delay. The contents of the Minute of Amendment,
already referred to added to the confusion.
In all the circumstances, the case under section 19A was incomprehensible
and irrelevant.
[17] Counsel then proceeded to consider the second chapter of his
submissions, concerned with the liability, if any, of the first to eighth
defenders to make reparation. He
submitted that the Lord Ordinary had erred in failing to sustain these
defenders' second plea-in-law, directed to the relevancy of the pursuer's case
against them. It was necessary to
examine the averments made about these defenders by the pursuer. These were to be found in Condescendence I at
page 8B to 9D of the reclaiming print;
also in Condescendence II, at page 17D to E; and in Condescendence VII, at pages 45D
to 48B. These averments constituted the
pursuer's factual basis for his case against these defenders. It was explained by counsel that the de La
Salle Order was a voluntary association.
The first to seventh named defenders were the trustees of the Order,
holding property on its behalf. The
eighth named defender was the Congregation of the de La Salle Brothers. Thus, if a relevant case were to be made
against the Order, the first to eighth named defenders were the appropriate
defenders.
[18] It was submitted that the Lord Ordinary had erred in holding
that the pursuer had averred sufficient to entitle him to a proof before answer
in relation to his case against these defenders. In particular, the pursuer's pleadings were
so confused, contradictory and unspecific as to be irrelevant and lacking in
specification. In particular the legal
basis of the pursuer's case against these defenders remained unclear. Attention was drawn particularly to the
averments at pages 25B to C, 28D, 30D and 45E of the reclaiming print. Reference was also made to paragraphs 11 and
12 of these defenders' written submissions.
During the course of the Procedure Roll discussion, the pursuer's second
plea-in-law had been amended to delete a reference to the word
"employees". Thus it appeared that the
pursuer no longer contended that individual members of the Order who worked in
the school were employees of it. This plea-in-law
now referred simply to "persons for whom the defenders are responsible",
without being associated with any explanation in the averments as to the legal
basis for such responsibility. It
appeared from paragraphs [94] and [95] of the Opinion of the Lord Ordinary that
she had seen the existence of a relationship of agency between the Order and
certain monks, which she considered rendered the Order liable for their acts
carried out in the course of their agency.
The difficulty with that approach was that it was impossible to identify
the principal. In any event, the pursuer
had no averments for a case of vicarious responsibility founded upon
agency. It would not be appropriate for
a proof to be allowed upon the basis that some legal basis for the pursuer's
case against the first to eighth named defenders might emerge at it.
[19] As regards the Lord Ordinary's preferred view that liability
might arise on the part of the Order on account of its being liable for the
acts of its agents, there were no averments of the relationship of agency in
the pursuer's pleadings. The pursuer did
not aver how any such relationship had come into being. There could not be liability on such a basis
without notice being given in the pleadings.
In any event, the Lord Ordinary had failed to explain how her analysis
consisted with the statutory regime whereby the school managers were legally
responsible for the care and welfare of the children in the school and employed
the monks and other staff at the school.
The whole rationale of the law of agency involved an agent acting so as
to create a contractual relationship between his principal and a third
party. That had no application to the
circumstances of this case.
[20] At this point, counsel drew our attention to certain
legislation relating to approved schools, in particular, the Children and Young
Persons (Scotland) Act 1937
and the Criminal Justice (Scotland) Act
1963. The former Act contained a number
of provisions of importance in the present context. Section 61(1) authorised a court to order a
child or young person to be sent to an approved school where that person had
been found guilty of certain offences.
Section 66(2) of the 1937 Act authorised a juvenile court to make an
order sending a child or young person to an approved school, where that court
was satisfied that that person was in need of care or protection. Sections 74(3), (4), (5) and (6) contained
provisions relating to approved school orders.
Under section 76 of the same Act, when an order was made, it would be
delivered to the headmaster or person for the time being in charge of the
school. Information in possession of the
court with respect to the child or young person might be also transmitted to
the headmaster, or person in charge of the school. Section 83 of the 1937 Act contained
provisions whereby the managers of any school intended for the education and
training of persons to be sent there in pursuance of the provisions of the Act
might apply to the Scottish Education Department for approval of the school for
that purpose. If at any time the
Scottish Education Department were dissatisfied with the condition or
management of an approved school, they might, by notice served on the managers,
withdraw the certificate of approval of the school. The certificate of approval might also be
surrendered by the managers of the school, in terms of this section. Sections 84 and 85 contained further
provisions relating to the establishment and management of approved
schools. It was of importance to note that,
under section 85(3) of the 1937 Act the detailed provisions of the Second Schedule
to the Act had effect in relation to the administration of approved schools and
the treatment of persons sent thereto.
Sections 87 and 94 of the Act contained further provisions relating to
the management and financing of approved schools.
[21] It was not a matter of dispute that Gartmore School was a
Roman Catholic approved school, designated as such in terms of section 85(1) of
the 1937 Act. That was evident from
items 5(a) and (e) of the documentation in the appendix for the first to eighth
and eighteenth defenders. The position
had been that the Archdiocese of Glasgow had bought the land for the school on
which the necessary buildings had been erected, funded by the State. The provisions of section 110 of the 1937 Act
were significant. That section provided
a series of definitions for the purposes of the Act, including a definition of the
expressions "Approved school" and "Managers" in relation to an approved
school. In the case of an approved
school not established or taken over by an education authority, or by a joint
committee representing two or more education authorities, the "Managers" meant
"the persons for the time being having the management or control thereof".
[22] The Second Schedule to the 1937 Act contained detailed
provisions as to the administration of approved schools and other matters. Paragraph 1 authorised making by the Scottish
Education Department of rules for the management and discipline of approved
schools. Paragraph 12 provided that all
rights and powers exercisable by law by a parent should, as respects any person
under the care of the managers of an approved school, be vested in them.
[23] In exercise of the powers conferred by paragraph 1(1) of the
Second Schedule to the 1937 Act, the Approved Schools (Scotland) Rules
1961 had been made. These rules
contained detailed provisions relating to the management of approved
schools. Rules 2 and 4 made it plain
that the managers of an approved school were responsible for its management in
the interests of the welfare, development and rehabilitation of the
pupils. Rule 10 made it clear that,
subject to the approval of the Secretary of State, the managers should, in
consultation with the headmaster, determine the number, type and qualifications
of the staff to be employed by them.
They were responsible for the appointment, suspension and dismissal of
staff. Under Rule 11, the headmaster was
to be responsible to the managers for the efficient conduct of the school in
the interests of the welfare, development and rehabilitation of the
pupils. Under Rule 28, discipline and
punishment were the responsibility of the headmaster. Under Rule 31, corporal punishment might be
inflicted under the limited conditions defined therein.
[24] Counsel completed his survey of the legislative provisions
relating to approved schools by referring to the provisions of sections 18 to
22 inclusive of the Criminal Justice (Scotland) Act
1963. He submitted that the legislation
to which he had referred was in conflict with the Lord Ordinary's analysis of
responsibility for Gartmore Approved School in paragraphs [93] and [94] of her
Opinion. In any event, the pursuer's
averments fell a long way short of what was said about his case by the Lord
Ordinary in paragraph [94]. The
inescapable fact was that the staff at the school must have been employed by
the managers in terms of Rule 10 of the 1961 Rules. Certain of the staff were supplied by the de
La Salle Order, which was not a monastic order.
It was a teaching order and a charitable supplier of teachers.
[25] Counsel went on to elaborate the point made in paragraph 14 on
page 16 of the written submissions for the first to eighth named defenders,
which was simply to the effect that there were no relevant averments of agency
that could justify the Lord Ordinary's conclusion in paragraph [94]. The essential feature of an agency
relationship, which was not pled, was that the agent, either expressly or
impliedly, consented to act so as to affect the principal's relationship with
third parties. In connection with this
submission counsel relied upon The Law of
Scotland, Gloag and Henderson, 11th edition paragraphs 21.01, 21.03, and
33.05. He also relied upon The Mercantile Law of Scotland, 6th
edition, MacNeil & Lilley, page 69, and The
Mercantile and Industrial Law of Scotland, Gow, page 516. Counsel submitted that no question of agency
could arise here because there were no averments of a contract between the de
La Salle Order and those members who were members of the staff at the approved
school.
[26] Further difficulties for the pursuer in supporting the
conclusion reached by the Lord Ordinary arose from the fact that the de La
Salle Order was an unincorporated voluntary association. Thus the association did not have a legal
identity or persona separate from its
members. Membership of a voluntary
association did not involve a contract between the member and the
association. It involved a contract
between all its members. In support of
these submissions reference was made to The
Law of Scotland, Gloag and Henderson, paragraph 51.1; Stair
Memorial Encyclopaedia, volume 2 paragraphs 801, 803 and 804 and volume 3,
paragraphs 1632, 1638 and 1639; and Harrison v West of Scotland Kart Club 2004 S.C. 615, at paragraph 25. It was therefore submitted that, because the
Order was not a separate legal persona,
it could not be the principal in a relationship of agent and principal with its
members. It could not enter into a
contract with its members, whereby an agency relationship was created. However, it was accepted that the members of
a voluntary association could engage one of their number to act as an agent on
their behalf. However, that was not the
nature of the relationship upon which the Lord Ordinary's analysis proceeded.
[27] It was submitted that the Lord Ordinary had erred in holding
that voluntary associations were vicariously liable for delicts committed by
their members as agents of the association.
In relying, in paragraph [91] of her Opinion, on a passage in the Stair Memorial Encyclopaedia, volume 2,
paragraph 814, she had misunderstood what was said there. She failed to appreciate that the authors
proceeded on the basis that the members of the association were the principals
and the committee of the association were agents of the members. The doctrine of vicarious liability
necessarily required the existence of two separate legal entities, one of them
acting on behalf of the other, as appeared from Carmichael v Bearsden and District
Rifle and Pistol Club 2000 S.L.T. (Sh. Ct.) 49 at
page 51. Here the purported principal,
namely the Order, was not a separate legal entity. In any event, it was submitted that the
authorities cited by the authors of the passage relied upon in the Stair Memorial Encyclopaedia did not
support the proposition set out in it. Murdison v Scottish Football Union (1896) 23 R. 449 did not concern the
liability of an association for its agents.
McLeod v The Magistrates of St. Andrews 1924 S.C.
960 was not a case about the vicarious liability of an association. In Brown
v Lewis (1896) 12 T.L.R. 455, the
basis for the finding of liability was direct fault on the part of the
committee, who had employed an incompetent tradesman to build the stand which
collapsed. A further problem for the
pursuer was that there were no averments to show why the representatives of the
de La Salle Order, who had been convened as the first to seventh named
defenders, should be responsible for alleged delicts which had occurred in the
early 1960s.
[28] In paragraph [92] of her Opinion, the Lord Ordinary placed
considerable reliance on a passage in The
Law of Scotland, Gloag and Henderson at paragraphs 33.05 and 33.06. The view expressed in those passages,
embodying a general proposition about the vicarious liability of principals for
their agents had no sound basis. It was
inconsistent with the dictum of Lord
President Cooper in Mair v Wood 1948 SC 83, to the effect that it
had never been laid down as a general proposition that all principals, as
distinguished from employers, were liable for the negligence of their agents,
as distinguished from their servants.
[29] Having regard to the statutory regime already referred to, it
was submitted that it was clear that the approved school managers and the
headmaster, an employee of and accountable to the managers, had the legal right
to direct and control how the brothers employed at the school undertook their
duties. The de La Salle Order had no
such right. The pursuer was not offering
to prove that that Order, or anyone in a supervisory role acting on behalf of
the Order sought to control or supervise the conduct or duties of the teachers,
or that they had the right to do so. In
these circumstances, the de La Salle Order could not be vicariously liable for
the wrongs committed by any of its members employed at the school. Control was a necessary, albeit not a
sufficient requirement for vicarious liability.
In the absence of any averments by the pursuer that the Order either
could or did exercise any control of how the brothers at the school undertook
their duties, the pursuer's case of vicarious liability against the first to
eighth named defenders was bound to fail.
[30] In paragraphs [95] and [96] of her Opinion the Lord Ordinary
had concluded that the ratio of Lister v Hesley Hall Limited was applicable to a situation where the
wrongdoer was a monk acting as agent for his Order when fulfilling tasks of
teaching, supervising and providing care to children in a residential
school. In so holding, the Lord Ordinary
had erred. She had either misunderstood
the case, or misapplied it. That case
was concerned with the extent of the concept of vicarious liability in a
context of an employer and employee relationship. There was no authority for the extension of
the application of that case to a situation where what was under consideration
was the relationship between a principal and agent. Examination of the dicta in the case itself demonstrated that the House of Lords had
been particularly concerned with the significance of the employer/employee relationship. There were several practical reasons why the principle
recognised in that case should not be extended to a situation such as that with
which the court was concerned here.
[31] Counsel turned finally to the third chapter of his submissions,
related to the third ground of appeal for the first to eighth named defenders,
to the effect that the Lord Ordinary had erred by ordering a preliminary proof
in respect of "the status of the school managers" under reference to paragraphs
[141] of the Lord Ordinary's Opinion.
The fact was that the existence of the school managers as a legal persona distinct from the individual
managers from time to time was recognised by the primary and secondary
legislation governing their activities and duties, to which reference had
already been made. It was quite clear
that the managers were creatures of statue having a continuing and separate
legal identity from the individual managers from time to time. No useful purpose would be served by the
enquiry contemplated by the Lord Ordinary.
Submissions by junior counsel for the eighteenth named defender
[32] Counsel moved the court to allow the reclaiming motion, recall
the Lord Ordinary's interlocutor of 13 September 2005, sustain the eighteenth named defender's
first and fifth pleas-in-law and to dismiss the action, so far as it was
directed against this defender. Counsel
commenced by dealing with the case of direct liability made against this
defender, based upon an alleged non-delegable duty. It was important to note how this case had
been pled. It was averred at page 61 of
the reclaiming print that the Scottish Education Department had had a duty
"to take
reasonable care to remove boys such as the pursuer from said School once it had
come to the Department's notice that said boys were being regularly and
routinely assaulted."
In connection with this, the
question arose of whether the Secretary of State had had any power to perform
such a duty. While boys had been put
into the School in consequence of court orders, which, plainly, the Secretary
of State would have had no power to alter, paragraph 9 of the Second Schedule
to the 1937 Act conferred power on the Scottish Education Department to
transfer a person under the care of the managers of an approved school to the
care of the managers of another school.
Thus, if the word "remove" were read as "transfer" the alleged duty
might have been capable of being performed.
However, the pursuer's case was not supported by any averments that the
Scottish Education Department had been aware that boys in the school were being
regularly and routinely assaulted there.
The pursuer's pleadings had originally contained averments of duty on
the part of the Scottish Education Department to inspect the school from time
to time, which were to be found at page 61A to C and D to page 62A. However, these averments had been excluded
from probation by the Lord Ordinary, as appeared from paragraph [140] of her
Opinion, which decision was not being challenged. The pursuer had made certain averments about
the extent of the Scottish Education Department's knowledge of the state of
affairs at the school during the period when he was resident there between
pages 35C and 36D of the reclaiming print.
However, those averments did not amount to averments of awareness that
boys were being regularly and routinely assaulted. Nevertheless, the Lord Ordinary, in paragraph
[104] of her Opinion considered that there was sufficient in the pursuer's
averments to justify an enquiry, on the basis that the averments made
attributed to the Scottish Education Department knowledge about
absconding; serious concerns at the
school concerning blows and the physical care of the boys; and certain other matters which she
specified. She considered that there was
sufficient on record to justify an enquiry in that the Scottish Education
Department was averred
"to have
had knowledge about certain deficiencies in the school which might reasonably
foreseeably cause harm or injury to a child resident there."
In this connection, she considered
that it was not necessary that the precise form of harm should be foreseeable,
under reference to Hughes v The Lord Advocate 1961 S.C. 310; 1963 SC (HL) 31. It was submitted that the averments made were
insufficient to justify the Lord Ordinary's conclusion. Furthermore, there were no appropriate
averments of fault on the part of the Scottish Education Department, to the
effect that, despite the alleged knowledge, that Department did not remove the
pursuer from the school, which removal would have prevented the injuries of
which he complained. Thus the pursuer's
case as regards direct liability was irrelevant.
[33] In any event, it was difficult to accept that the duty averred,
which related to, not just the pursuer, but "boys such as the pursuer" was
anything other than an alleged duty to close the school, presumably by the
withdrawal of its certificate of approval, under section 83(2) of the 1937 Act. Yet that duty was not averred.
[34] There also had to be considered the question of whether there
had been the necessary relationship of proximity between the pursuer and the
Scottish Education Department that could give rise to a delictual duty. As to that, it was submitted that the
pursuer's pleadings did not indicate the existence of such a relationship of
proximity. It was not sufficient that
the Scottish Education Department might have had some concerns with the
management of the school.
[35] Pursuing the foregoing submission, counsel traced the history
of reformatory schools, industrial schools and approved schools, which were
first mentioned in the Children and Young Persons (Scotland) Act
1932. The 1937 Act was a consolidation
statute. St. Ninian's School had been
first established in Glasgow, but was
re-sited in around 1950 in Gartmore. The
necessary land and buildings were purchased by the Roman Catholic Archdiocese
of Glasgow. The approved school system
survived until the passing of the Social Work (Scotland) Act 1968
which provided for the abolition of the system, by means of a gradual phasing
out over time. The closure of
St. Ninian's School was announced by the then Secretary of State for Scotland on 1 December 1981. It was considered that any liabilities
incurred by the managers would have remained with them at the time of closure.
[36] Counsel next proceeded to summarise the position of the
eighteenth named defender. First, as
regards direct liability, the duty averred by the pursuer, said to be to take
reasonable care to remove boys such as the pursuer from the school amounted to
saying that, in the circumstances, the Secretary of State had had a duty to
withdraw his certificate of approval of the school under section 83(2) of the
1937 Act, because the criticisms made of the general regime at the school in
the pursuer's averments showed that all boys in care there were affected. Secondly, if the Secretary of State had a
duty of any kind, it was one owed to the public, not to individual pupils. There was no intention in the statutory
structure of other legal arrangements to confer any right of civil action on an
individual pupil, such as the pursuer.
There had been no relationship of proximity between an individual pupil
at the school and the Secretary of State for Scotland; nor was
it fair, just and reasonable that a duty should be imposed upon the latter,
owed to an individual pupil. Thirdly, in
relation to the issue of the existence of a common law duty of care, while the
Secretary of State had had a discretion to remove boys from one school and to
transfer them to another, in attempting to establish a duty, the pursuer had to
aver that no reasonable Secretary of State would have failed to exercise his
discretion to close the school in question.
[37] In connection with these submissions counsel relied upon X (Minors) v Bedfordshire County Council and Others [1995] 2 AC 633. The decision arose out of several cases in
which issues were considered relating to the welfare and education of children
in relation to local authorities.
Certain of the cases, which were the subject of decision, were child
abuse cases. In relation to those, the
House of Lords held that the statutes in question were all concerned with the
establishment of a system to promote social welfare. In such a context exceptionally clear
statutory language would be required to indicate a parliamentary intention to
create a private law remedy. Counsel
drew attention particularly to the observations of Lord Browne-Wilkinson
between pages 730 and 732, which dealt with circumstances in which a statutory
duty might arise. At pages 734 to 735
Lord Browne-Wilkinson stated that, in order to found a cause of action flowing
from the careless exercise of statutory powers or duties, the plaintiff had to
show that the circumstances were such as to raise a duty of care at common
law. The mere assertion of the careless
exercise of a statutory power or duty was not sufficient. Our attention was also drawn to
pages 736 to 737 and 739 to 740 in the speech of Lord
Browne-Wilkinson. Counsel submitted that
the approach there described should be adopted in this case. The pursuer had failed to aver circumstances
giving rise to the common law duty of care upon which he relied. In particular, there were no averments
showing the appropriate degree of proximity.
Counsel recognised that the managers of the school would have been in a
quite different position from that of the Secretary of State for Scotland. Because of their practical responsibility for
the conduct of the school, a common law duty of care on their part to pupils at
the school could readily have been inferred.
Counsel knew of no case where the existence of a statutory duty of
supervision had given rise to a common law duty of care.
[38] It was further submitted on behalf of the eighteenth named
defender that the pursuer's averments, such as they were, concerning what the
Scottish Education Department had known, fell short of knowledge of
circumstances in the school regime of such a character that the school's
certificate of approval should have been withdrawn. In particular, what the pursuer had averred
concerning knowledge on the part of the Scottish Education Department did not
amount to knowledge that boys at the school were being regularly and routinely
assaulted. In paragraph [104] of her
Opinion, the Lord Ordinary had gone too far.
Furthermore, she was in error in thinking that Hughes v The Lord Advocate
was in point.
[39] Counsel then turned to consider the possibility of vicarious
liability impinging upon the eighteenth named defender. In this connection it had to be noted that,
in paragraph [140] of her Opinion, the Lord Ordinary had excluded from
probation the averment at page 11B to C of the reclaiming print that some of
the staff who worked at the school had been employed by the eighteenth named defender's
statutory predecessors. That part of her
decision was not under challenge. A
further important part of the background was that Rule 10 of the Approved
Schools (Scotland) Rules,
1961 (S.I. 1961 No. 2243) made it clear that the staff at the school were
employed by the managers. However, in
paragraph [111] of her Opinion, the Lord Ordinary had ordered inquiry in
relation to possible involvement of the Scottish Education Department in the
employment of staff. There were no
averments of the pursuer to justify any inquiry into that matter. In particular, the averments at page 9B to C
of the reclaiming print did not justify it.
They were irrelevant. In short,
the Lord Ordinary's conclusion in paragraph [111] was without foundation in the
averments. Even if the Scottish
Education Department had had a part to play in the employment of an employee,
it was not clear why that should lead to the conclusion that the Secretary of
State was vicariously liable for the acts of such staff in the course of their
employment. To suggest otherwise would
be to lose sight of the basis of vicarious liability on the part of an
employer, which lay in the control exercised by the employer over the employee. In that connection counsel relied upon Clerk & Lindsell on Torts, 19th
edition, paragraphs 6.06 to 6.08. There
was nothing in the 1961 Rules, or elsewhere, to indicate that the Secretary of
State had exercised any degree of control over the day-to-day activities of the
staff at the school in the course of their employment. It was possible to conceive of a case based
upon an allegation of fault in connection with the selection of staff. Such a case would normally be made against
employers who had engaged staff without the exercise of reasonable care. However, in the averments in this case, there
was no suggestion of such a case being made against anyone for whose conduct
the eighteenth named defender might be responsible.
[40] It was, of course, the position that the Secretary of State
would have made a contribution to the expenses of the managers of an approved
school, in terms of section 107 of the 1937 Act. The managers of such a school would also have
received a contribution to expenditure from local education authority in terms
of section 94(1) of that Act. However,
the fact that such payments might have been made to an employer of staff could
not give rise to vicarious liability on the part of the payer for the acts of
the employer's staff.
[41] Counsel next proceeded to consider the possibility of liability
on the part of the eighteenth named defender on the basis of breach of a
non-delegable duty having been imposed upon the statutory predecessors. In Condescendence X at page 58 of the
reclaiming print the pursuer averred that
"the loss,
injury and damage sustained by the pursuer was caused by breaches of duty for
which the eighteenth defender is liable.
It was their (sic) duty to
take reasonable care for the safety and welfare of children in approved school
such as the pursuer. They (sic) were under a non delegable duty to
children in custody, who had been deprived of their liberty and removed from
the care of their parents, to see that those children were not ill-treated,
abused, harmed or injured and to see that they were kept safe."
It was accepted that, in certain
circumstances, non-delegable duties had been held to exist, an example of which
was to be found in English v Wilsons and Clyde Coal Company Limited
1937 S.C. (H.L.) 46. It could also be
accepted that where a person was charged with a
duty of care in respect of a child, that duty might be
non-delegable. However, it was plain
from the statutory background to the approved school system that the duty to
care for children in approved schools rested with the managers of those
schools, not with the Scottish Education Department. Accordingly, any non-delegable duty involved
would have been incumbent on those managers.
However, whatever their position might be, the live question in the
present case was whether those for whom the eighteenth named defender was
responsible had owed a duty such as was contended for by the pursuer. As regards that, it was important to note
that, as averred, the duty was one of insurance; in paragraph [113] of her Opinion the Lord
Ordinary concluded that the reasoning in Lister
v Hesley Hall Limited [2002] 1 AC 215 made it necessary for the courts to recognise the existence of a
common law non-delegable duty of care on the part of a government body, such as
that represented by the eighteenth defender, in respect of children allocated
by the Government to government-created residential schools, such as St.
Ninian's. In reaching that conclusion
the Lord Ordinary relied on K.L.B., P.B.,
H.B. and V.E.R.B. v The Queen
(British Columbia) [2003] 2 S.C.R. 403, although it was held that the
legislation under consideration offered no basis for imposing on the superintendent
a non-delegable duty to ensure that no harm came to children through the abuse
or negligence of foster parents.
Paragraphs 30 to 37 of the judgment of McLachlin C.J. showed that what
was important was to look at the relevant legislation to see on whom the duty
might be imposed. The position of the superintendent
in that case was equiparable to that of the managers here. In paragraph [113] of her Opinion, the Lord
Ordinary had gone far beyond anything that was justified by the
authorities. The Lord Ordinary appeared
to think that there was some distinction between what might be called "direct
traditional liability" and a "non-delegable duty of care". There was no basis in law for the recognition
of any such distinction.
[42] In paragraph [116] of her Opinion, the Lord Ordinary attributed
importance in the present context to Lister
v Hesley Hall Limited. However, counsel submitted that there was
nothing in that case which justified the conclusion which the Lord Ordinary had
reached. She had misdirected herself in
this connection. That case was concerned
with the issue of the extent or scope of the vicarious liability of employers
for the wrongful actions of their employee, the warden of the boarding
house. It had nothing to do with the
criteria by reference to which a non-delegable duty might or might not be held
to exist. The Lord Ordinary's
observations in paragraphs [116] and [117] were completely misconceived. The Lord Ordinary had never asked herself as
to whether the eighteenth named defender's predecessors were under a duty of
care, by reference to the appropriate criteria.
[43] Summarising his position on this aspect of the case, counsel
submitted that, for a body to be under a duty of care for others, it was
necessary that they should be shown to have responsibility for that care. If there was a duty, the body could not
escape liability merely because it entrusted the provision of such care to
employees. However, there was no reason
in principle, or policy, for imposing such duties on a government department
charged with a regulatory or supervisory function in relation to the provision
of care by others. Such a body was not
charged with the obligation to provide care and had no direct control over its
provision. This part of the pursuer's
case, which had been upheld by the Lord Ordinary, was without foundation.
[44] Counsel finally indicated that he adopted the submissions of
junior counsel for the first to eighth named defenders in relation to issues of
limitation.
Submissions by junior counsel for the pursuer
[45] Counsel moved the court to refuse the reclaiming motions for
the first to eighth and eighteenth named defenders and uphold the pursuer's
cross-reclaiming motion, allowing a proof before answer on all matters
excluding those which had been excluded from probation by the Lord
Ordinary. She referred to the pursuer's
written submissions, which set forth in detail the pursuer's position. It was important for the court to be aware
that the present litigation was of the nature of a test case; there were approximately 150 other cases
brought against the first to eighth named defenders and the eighteenth named
defender, in which legal aid had not been granted until a decision was reached
in this case. Beyond that, there existed
approximately 400 other actions arising out of the alleged abuse of children in
residential institutions. The court's
decision in relation to time-bar was likely to affect those actions.
[46] The pursuer's submissions would fall into six chapters:
1. Time-bar,
involving (i) section 17 of the Prescription and Limitation
(Scotland) Act 1973
and (ii) section 19A of the 1973 Act;
2. Overview
on liability of the defenders;
3. Vicarious
liability, relating to (a) the first to eighth named defenders, and (b)
the
eighteenth named defender;
4. Non-delegable
duty of the eighteenth named defender;
5. Direct
liability of the eighteenth named defender; and
6. The
scope of the proof before answer.
[47] Turning to the matter of time-bar, counsel drew our attention
to certain parts of the pursuer's pleadings, particularly Condescendences III
and XII. The pursuer's position was that
he had not required medical treatment in relation to intrusive memories until
1999. The pursuer's treatment began
following the emergence of intrusive memories in about May 1999. The present action had been raised in May
2000. Accordingly, it was not
time-barred, the pursuer's position being that the triennium commenced in 1999.
In Stubbings and Others v The United Kingdom (1996) 23 EHRR 213 the European Court of Human Rights noted that there had been a developing
awareness in recent years of the range of problems caused by child abuse and
its psychological effects on victims. It
was possible that the rules on limitation of action applying in Member States
of the Council of Europe might have to be amended to make special provision for
this group of claimants in the near future.
However, it was submitted that the English courts had been able to
accommodate such claims without amending legislation. Counsel then drew our attention to the
provisions of section 17 of the 1973 Act.
She pointed out that, at the time of the alleged abuse, the pursuer had
been 12 years old. He had achieved
majority at the age of 18. Unless the
provisions of section 17(2) could be invoked, the pursuer's claim would have
been time-barred on his attainment of 21 years of age.
[48] There was recent English authority for the proposition that, in
some cases of historic child abuse, the triennium
might not begin until there had been a psychiatric diagnosis, or until the
claimant contacted solicitors. That was
because the adult claimant in respect of child abuse might not realise that the
injuries suffered were significant in the sense of being sufficiently serious
for statutory purposes until they had been told that by a medical or legal
expert. In this connection, reliance was
placed on K.R. and Others v Bryn Alyn Community (Holdings) Limited
[2003] QB 1441. The effect of that
decision was to allow most of the cases under consideration to proceed as a
matter of right under the English equivalent of section 17 of the 1973 Act, but
to hold that, in such cases, the court would have been unlikely to exercise its
discretion under the English equivalent of section 19A of that Act. While there were certain important
differences between the 1973 Act, applicable in Scotland, and the Limitation
Act 1980, applicable in England and Wales, there were sufficient similarities
to justify the use of English decisions, such as K.R. and Others v Bryn Alyn
Community (Holdings) Limited in determining the present litigation. Indeed, it would be unsatisfactory for
different approaches to be applied in Scotland and England. The approach taken in K.R. and Others v Bryn Alyn
Community (Holdings) Limited, appeared now to be well-established in
England, as appeared from Adams v Bracknell Forest Borough Council [2005] 1 AC 76.
[49] It was submitted that the word "knowledge" used in section
14(1) of the Limitation Act 1980 was not significantly different from a person
who had "become aware" within the meaning of section 17(2)(b) of the 1973
Act. Nor was there any real difference
between the law of Scotland and the
law of England regarding
whether the test was subjective or objective.
That issue had been discussed in Carnegie
v The Lord Advocate 2001 S.C.
802. However, it was recognised that
there were difficulties involved in observations made in one jurisdiction
concerning the legislation applicable there to another, as was stated in M.P. v Sister Zoe O'Neill and Others [2006] CSOH 93 (16 June 2006;
unreported). Counsel submitted that the
pursuer's averments relating to awareness of the statutory facts, suggesting
that it did not emerge until 1999, were sufficient to justify an investigation
relating to the possible application of section 17 of the 1973 Act. If there were to be a proof in relation to
the application of section 19A of that Act, that proof should extend also to
the application of section 17. It could
not be said at this stage that the pursuer was bound to fail.
[50] Counsel next turned to examine Carnegie v The Lord Advocate
in some detail. It was her contention
that there might be two triennia in a
particular case, related to two distinct claims, as was contemplated by Lord
Johnston in that case at page 813. That
approach was justified by the terms of the statute; and had been recognised by Lord Glennie in M.P. v Sister Zoe O'Neill and Others in paragraph [29]. However, as counsel recognised when pressed
by the court, before separate claims could be treated separately, they required
to be the subject of distinct averments.
[51] At this point in the submissions senior counsel for the eighteenth
named defender expressed his concern as to the way in which the pursuer's case
was being presented. He contended that
the submissions now being made represented a volte face, from what had
been submitted before the Lord Ordinary.
The court had to be satisfied that the pursuer's pleadings were apt to
allow the present submissions to be made.
That question could be determined forthwith. It appeared to us, however, that the
pursuer's submissions should be permitted to continue. If it were the case that their form had
created prejudice of some kind for the eighteenth named defender, that might be
dealt with at a later stage.
[52] Counsel completed this part of her submissions by drawing our
attention to the fact that there had been only one decision in the Scottish
courts on the application of section 17 of the 1973 Act in the context of
historic child abuse, B. v Murray 2004 SLT 967 and B. v Murray (No. 2) 2005 SLT 982. However, reclaiming motions had been enrolled
against these decisions.
[53] Counsel next proceeded to make submissions relating to section
19A of the 1973 Act. She submitted that
the pursuer had made sufficient averments to justify inquiry into the possible
application of that section. In this
connection she relied on Ablett and
Others v Devon County Council and the
Home Office (4 December
2000; unreported). Issues
of the nature involved could not be decided against the pursuer on paper. The relevant averments were to be found in
Condescendence XII. Explanations had
been stated covering the reasons why proceedings had not been raised during
much of his life. An explanation of what
he had said at the time of the interview for the Social Enquiry Report founded
upon was given. The substantial point
was that the pursuer had not started disclosing abuse until 1999. In B. v
Murray, a
preliminary proof had been allowed in relation to section 19A of the 1973
Act. It would be appropriate for a proof
to embrace the pursuer's case under section 19A and under section 17(2) of
the 1973 Act.
[54] Counsel moved on to deal with the second chapter of her
submissions, an overview on the liability of the defenders. She began by drawing our attention to
averments concerning the pursuer's residence within St. Ninian's Approved
School and the statutory provisions under which the approved school system
operated. She contended that what she
called the "employment relations" at the school were unusual. She drew our attention of the position of the
managers in terms of the Approved Schools (Scotland) Rules
1961. She appeared to contend that the
definition of the "managers" in section 110 of the 1937 Act was wide enough to
include the de La Salle Order, or at least those members of the Order
having the management or control of the school at any particular time. However, counsel recognised that, at the
material time, several persons had been appointed as managers. Representatives of the managers had
originally been convened as the ninth to fifteenth named defenders. It had been revealed by senior counsel for
those defenders at the procedure roll debate that no insurance arrangements
existed to cover any liabilities of the managers. On that basis, the pursuer had decided to
discontinue the proceedings against those defenders. In connection with this part of her
submissions counsel drew our attention to Macdonald
and Another v The Board of Management
for Glasgow Western Hospitals 1954 S.C. 453 and to the observations of Lord
President Cooper at page 465, a case concerned with vicarious liability of
hospital managers. Reverting to the
statutory background of approved schools and to the 1961 Rules, counsel said
that the de La Salle Order had "supplied the headmaster" of St. Ninian's
School. He was in de facto control of the school.
She attached particular importance to the averments at page 18D to E of
the reclaiming print, concerning the conduct of the headmaster. Counsel recognised that the Lord Ordinary's
conclusion in paragraph [93] of her Opinion made it impossible for the pursuer
to rely upon vicarious liability on the part of the Order, based on an
employer/employee relationship. However,
the Lord Ordinary's reasoning in that paragraph and elsewhere relating to
agency was supported. Agency had to be
the basis of liability on the part of the Order. Nevertheless, counsel agreed that the pursuer
had no pleadings relating to the matter of agency relied upon by the Lord
Ordinary.
[55] Counsel went on to deal with chapter 3 of her submissions,
concerned with vicarious liability. At
this point senior counsel for the pursuer intervened to propose an amendment to
the pursuer's pleadings which would have taken the form of the addition of
certain words after the word "herewith" at D on page 9 of the reclaiming print. The words sought to be added were: "The Order did operate said school at the
material time." This motion was opposed
by senior counsel for the first to eighth named defenders. He advanced a number of grounds as to why it
should be refused. First, the action had
been in court for more than 6 years; the
proposed amendment was very late indeed.
Secondly, there was no explanation proffered at all as to why the
amendment was proposed at this very late stage.
Thirdly, the words sought to be added to the pursuer's pleadings were
utterly lacking in any specification. As
had already been made clear, the operation of approved schools was subject to a
complex statutory regime, under which the managers of a school were responsible
for its operation. What was proposed was
in conflict with the legal structure of approved schools, set out in
statute. Fourthly, if the proposed
amendment were to be entertained, it would require to be answered by these
defenders, which, at this stage, would disrupt the hearing of the reclaiming
motions. Fifthly, the words sought to be
added appeared to be related only to the selection and employment of
staff; however, the managers of the
school were, under statute, in loco parentis to the pupils. Sixthly, a history of the litigation showed
that the court had hitherto been very indulgent so far as amendments to
pleadings by the pursuer were concerned.
Having regard to the stage reached in the litigation, that indulgence
ought to end.
[56] Senior counsel for the eighteenth named defender also opposed
the motion. He said that the words
sought to be added were wide, sweeping and of uncertain meaning. He associated himself with the reasons for
refusal advanced by senior counsel for the first to eighth named defenders.
[57] In response to these objections, senior counsel for the pursuer
submitted, as regards lateness, that what was now sought to be said had been
implicit from an early stage, having regard to the averments made at page 9C to
D of the reclaiming print. He went on to
appear to contend that two bodies might, at the same time, be vicariously
liable for the same wrongful conduct.
This whole area required proof.
[58] After considering the motion, we decided to refuse it. Our reasons for doing so are set out at a
later stage in this Opinion.
[59] Thereafter the submissions by junior counsel for the pursuer
were resumed. She submitted that she
would move on to consider the issue of direct liability on the part of the eighteenth
named defender. At the Procedure Roll
debate it had been said that this defender accepted that the State had certain
duties of reasonable care; the issue had
been whether such a duty could be delegated.
So far as the pursuer was concerned, the hurdle was the matter of
proximity. It was submitted that the
necessary proximity existed because the pursuer had been deprived of his
liberty by the organs of the State. It
followed from that position that the State assumed a responsibility for his
welfare. The pursuer had made averments
at page 60D to 61A of the selection of St. Ninian's School in his case by the
Scottish Education Department. The
relationship of proximity arose from the statutory powers of that Department,
rather than its involvement in the certification of the school. The provisions of section 74 of the 1937 Act
were important, which dealt with the contents of Approved School Orders. The situation was comparable to that dealt
with in Napier v The Scottish Ministers 2004 SLT 555. It had been accepted in that case that the
Scottish Ministers had had a duty to exercise reasonable care for the health
and safety of prisoners in prisons. If
the State was seen as having a supervisory role, but not a management role, in
relation to approved schools, it was submitted that that role created a
relationship of proximity. In this
connection reference was made to X
(Minors) v Bedfordshire County
Council; also to Barrett v Enfield London Borough Council [2001] 2 AC 550. The plaintiff in the latter case had been
placed in the care of the defendant local authority. The House of Lords had decided that the facts
of that case ought to be investigated with a view to determining the issue of
whether the duty of care contended for existed.
The local authority had been in
loco parentis. Reverting to the
present case, the important considerations were that the Scottish Education
Department had had certain powers: it
approved schools, it issued certificates, it could withdraw approval, it could
appoint inspectors and it had the power to discharge or transfer children from
an approved school, or to release them.
Reference was made to the Second Schedule to the 1937 Act and to the
pursuer's averments at page 59 of the appeal print and following pages. It was important to recognise that, as was
averred at pages 35A to 37A of the reclaiming print, the Scottish Education
Department had been on notice that there were problems of management at St.
Ninian's School. The Lord Ordinary, in
paragraph [104] of her Opinion, concluded that the circumstances did give rise
potentially to a duty of care on the part of this defender. What she said there was adopted.
[60] Counsel moved on to consider the issue of non-delegable duties
in relation to the eighteenth named defender.
At this point, senior counsel for this defender raised the question of
why the court was required to consider that matter, since the position of the
eighteenth named defender was that, if the Scottish Education Department had
had a duty, there was no suggestion that it was in fact entitled to delegate
the duty. Counsel for the pursuer went
on to draw our attention to Costello-Roberts
v The United Kingdom 1993 19 EHRR 112, which she contended illustrated that there was a State
responsibility for punishment in the context of a private school. It showed that the State could be liable for
powers retained by it in relation to punishment.
[61] Counsel next turned to deal with the issue of the vicarious
liability of the first to eighth named defenders. The conclusion of the Lord Ordinary in
paragraph [93] of her Opinion was supported.
The basis of the vicarious liability was agency, not the relationship of
employer and employee. Attention had to
be focused on the averment that the Order had sent its members to the
school. The Order received money for
sending them there. It was contended
that that state of affairs set up a relationship of agency. If agency were established, the question
would then be whether that created vicarious liability. The scope of the mandate involved was the
provision of educational services, teaching care and supervision services. Ellis v
The National Free Labour Association and
Others (1905) 7 F. 629 was of assistance.
[62] Finally, counsel turned to the issue of whether, as ordered by
the Lord Ordinary, there should be a preliminary proof limited to certain
issues, or alternatively a proof at large.
She submitted that it would be appropriate for a proof before answer to
be allowed rather than any preliminary proof on time-bar or other issue. The merits of the action were inextricably
linked with the time-bar issues. If a
preliminary proof were held, evidence given at it would require to be
duplicated at any subsequent proof on the merits. That was because of the need to go deeply
into the very issues that formed the subject-matter of the case on liability. Reference was made to pages 24 to 25 of the
pursuer's written submissions.
Submissions of senior counsel for the first to eighth named defenders
[63] Senior counsel adopted the submissions made by junior
counsel. He began by focusing attention on
the provisions of section 17(2) of the 1973 Act. He stated that the pursuer had attained
majority on 15
September 1971, on which date the non-age provisions of section
17(3) of that Act ceased to operate. The
present action had been raised in May 2000.
Accordingly, the pursuer had to make a case to show how the 28 year
period between his attainment of majority and the raising of the action could
be bridged. The issue was whether the
pursuer could invoke section 17(2)(b) of the 1973 Act effectively to postpone
the commencement of the triennium to
a moment within 3 years of the commencement of the action. The onus of averment and proof as to that
would be on the pursuer. He had to aver
a relevant and specific case under section 17(2)(b). It was submitted that he had failed to do so.
[64] The question had to be asked of what were the requirements for
such a case. If the statutory fact
defined in section 17(2)(b)(i) was to be relied upon, the pursuer would require
to have pled (1) when the ill-effects or symptoms of the wrongful act or acts
came into play; (2) when those
ill-effects or symptoms became sufficiently serious to justify the bringing of
an action of damages; and (3) when and
how the pursuer reached the point of awareness of the statutory facts. That date would be the start of the triennium. The pursuer had completely failed to aver a
relevant and specific case, which was of particular importance in a context in
which the injuries were said to have their origin in assaults, the awareness of
which would have been immediate. The
principles just described applied without distinction between types of
injuries. The averments about the Social
Enquiry Report in Condescendence XII were of great importance. The pursuer himself had averred that, during
the course of the interview prior to the preparation of the report he had told
the social worker of systematic abuse, although he denied that the words
"bizarre and awesome punishment regime" were his, as opposed to those of the
social worker. The pursuer's own
averments at page 75D to 76 of the reclaiming print showed that, as early as
June 1996, he had been the subject of a diagnosis as having a significant
psychiatric condition. He also averred
that he had given the social worker who prepared the Social Enquiry Report a
description of the regime at St. Ninian's, which he said had involved
systematic abuse. It was submitted that,
looking at these averments, it was nonsense for the pursuer to claim that the
action was not time-barred. It was inevitable
that the pursuer must have had an awareness of injury inflicted in physical
assaults and that those injuries were attributable to the acts of staff at the
school in 1996 and earlier. Having
regard to the averments which the pursuer had made and also had failed to make,
his attempt to invoke the provisions of section 17(2)(b) was bound to fail.
[65] Senior counsel turned next to the matter of the proper
interpretation of section 17(2) in the context of the pursuer's case. In relation to this part of his case, the
pursuer had attempted to rely on what was described as "suppression of memory". Yet, there was a series of averments of the
pursuer which showed that, both in childhood and adulthood, he had had a clear
recollection of the assaults inflicted upon him. The particular averments concerned were
detailed in paragraph 6(1) of the written submissions for the first to eighth
named defenders. The inescapable
conclusion from the pursuer's own case was that he had been aware of the
injuries inflicted upon him and the responsibility of members of the school
staff for the infliction of those injuries at a number of different times
during his adult life. There was a dilemma
in the pursuer's position. He claimed
suppression of memory. However, before a
memory could be suppressed, it must have been possessed in the first
place. If it was possessed in the first
place, then the fact of its suppression did not assist the pursuer in the
present context, because, from the outset, he had had an awareness of his
injuries and the persons responsible for their infliction.
[66] Looking at the terms of section 17(2)(b), it was plain that it
was focused upon one particular date.
Thus if there had been awareness of relevant matters and if that
awareness had been lost for some reason, a claimant had passed the temporal
point at which he could avail himself of the provision. Putting the matter in another way, a triennium which had started to run could
not be suspended by suppression of memory;
it could only be suspended by supervening unsoundness of mind, in terms
of section 17(3) of the 1973 Act.
[67] Even if the foregoing submission was wrong, the pursuer's
averments, already referred to, made it impossible for his case on time-bar to
succeed. It was plain, according to his
own version of events, that he had had actual awareness of the injuries since
their infliction.
[68] The concept of the "silencing" of victims of childhood abuse
had been introduced by the pursuer in the averments added at page 71B of the
reclaiming print by Minute of Amendment.
It was submitted that that concept involved an individual being aware of
certain matters, but being unable to speak of them, save perhaps to family
members. However, silencing operated on
the will of the individual, not upon their understanding, or awareness. It had not been contemplated as a factor
relevant to the application of section 17(2) of the 1973 Act, by Parliament.
[69] Turning to the submissions made by the pursuer, senior counsel
dealt with K.R. and Others v Bryn Alyn Community (Holdings) Limited. He submitted that that case was of no
assistance to the pursuer because, first, the part of it relied upon was
concerned with long-term mental abuse in childhood. In the present case there was a composite
claim for both physical and psychological effects of wrongful actings. Secondly, there were certain important
differences between the Scottish and English legislation, particularly in
relation to the English distinction between deliberate and negligent
abuse. Section 17(2)(b) was concerned
with either actual awareness of the matters concerned, or constructive
awareness. Looking at section 14 of the
Limitation Act 1980, the wording used was materially different. In section 14(1) the statutory facts in
relation to the date of knowledge, for the purposes of sections 11 and 12 of
the Act were set out. The first of these
was: "(a) that the injury in question was significant;
... ". Section 14 (2) contained a
definition of "significant" which was materially different from anything
appearing in section 17(2) of the 1973 Act and was more focused upon the
subjective position of the individual under consideration. These differences in the statutory provisions
had led to a perceptible difference in the approach of the courts in Scotland and England. The English courts had looked closely at
whether, in all circumstances, the claimant did or should have looked at the
possibility of commencing litigation. In
that connection reference was made to paragraphs 40 to 42 of the judgment of
Auld L.J. in the case under consideration.
By contrast the Scottish approach had been to look at the seriousness of
the injury, but not to focus upon the question of whether the claimant did or
might reasonably have considered bringing an action against any person. In short, in Scotland, there was
no direct counterpart to section 14(2) of the 1980 Act.
[70] In this connection senior counsel relied on M.P. v Sister Zoe O'Neill and Others.
In paragraph [50], Lord Glennie concluded that there was a danger in
seeking to apply K.R. and Others v Bryn Alyn Community (Holdings) Limited
uncritically to the Scottish legislation.
That supported the submissions being made. Reliance was also placed on Prescription and Limitation, Johnston,
paragraph 10.40, where it was pointed out that section 17(2)(b) referred to
"facts" that meant that the court, in deciding at what date the pursuer had the
necessary awareness, would be interested only in matters of fact.
[71] Responding to the submissions of junior counsel for the
pursuer, senior counsel said that her final position appeared to have been
that, for the purposes of section 17(2) of the 1973 Act, there were two
injuries, first, the physical injuries and, second, the psychological
injuries. Upon that basis it was
contended that the triennium began to
run in 1999, coinciding with the appearance of a newspaper article, which it
was said had affected the pursuer's recollection. She had relied on section 17(2)(b)(i) and
(ii). That was apparently consistent
with the position taken up by the court in Carnegie
v The Lord Advocate. However, that case made clear that for there
to be separate triennia, the two
injuries must be wholly distinct; it was
not sufficient that one should be an exacerbation of the other, with a separate
starting date. However, looking at the
averments of loss made by the pursuer in the present case, it could not be
regarded as a case involving a claim for a psychiatric condition giving rise to
a triennium separate from that
pertaining to the other injuries. No
different starting date was claimed. In
any event, having regard to the averments made in Condescendence XI,
psychological consequences of the alleged wrongful acts had emerged from the
outset. Having regard to the state of
the pursuer's pleadings, it was impossible to discern a case made involving
separate triennia. There were no factual averments of a wholly
distinct injury, as contemplated in Carnegie
v The Lord Advocate. It followed that the provisions of section
17(2)(b)(i) and (ii) could not be invoked to inhibit the commencement of the triennium. The pursuer had a whole series of averments
applicable to childhood onwards. He had
actual knowledge of significant injuries which had existed from the outset. The present case was similar to B. v Murray
2004 SLT 967. There was no question
here of separate injuries averred with a separate triennium applicable to each.
The foregoing submissions presupposed that the decision in Carnegie v The Lord Advocate was sound.
One of the factors giving rise to concern about that was that section
17(2)(b) of the 1973 Act referred to "the date ... " in the singular. However, that language might not constitute a
serious problem in that section 17(2)(b)(i) referred to "the injuries in
question"; there might be more than one
set of "injuries in question". On the
whole matter of the soundness of Carnegie
v The Lord Advocate, the position
of senior counsel was that that case was good law. In that connection it was necessary to notice
that in M.P. v Sister Zoe O'Neill and Others, at paragraph [29] Lord Glennie
had cast doubt upon Carnegie v The Lord Advocate. Senior counsel did not support that
position. If senior counsel's view of Carnegie v The Lord Advocate was wrong, then the pursuer in the present case
was plainly time-barred, regardless of his pleadings, because the physical
injuries which were averred had been known about by him since their infliction.
[72] Senior counsel then proceeded to consider the pursuer's case
under section 19A of the 1973 Act. He
submitted that there existed a formidable range of factors operating in favour
of the first to eighth named defenders.
Prominent among these was the very great period of time that had elapsed
following upon the expiry of the triennium
which he contended operated in the light of the amount of time that had
passed. He contended that the pursuer's
pleadings relative to this part of the case should be scrutinised with
particular care to see if the obstacles in the face of the pursuer's success
might be overcome. In connection with
this submission he relied upon B. v Murray (No. 2).
Senior counsel also submitted that the approach taken by the court to
the application of section 33 of the Limitation Act 1980 in K.R. and Others v Bryn Alyn Community (Holdings) Limited was sound. The very long delay involved in that and the
present case, with a consequent likelihood of a serious decline in the quality
of justice possible following upon such delay were cogent factors. The Lord Ordinary's decision in holding that
the pursuer's averments in Condescendence XII entitled him to a preliminary
proof on whether the court should exercise its equitable power under section
19A of the 1973 Act was erroneous. It
was well-known that, if a pursuer wished to invoke section 19A, he required to
aver a reasonable explanation for his failure to raise proceedings timeously,
throughout the period of delay involved.
No such averments had been made here, with the result that this part of
the pursuer's case was irrelevant. In
this connection reference was made to Prescription
and Limitation, Johnston, paragraphs 12.10 to 12.11. It was necessary for the pursuer to aver
candidly his state of awareness and conduct throughout the relevant period of
delay, as appeared from Cowan v Toffolo Jackson & Company Limited,
at page 1003J to K. Looking at the
pursuer's pleadings, it was not possible to identify clearly the factors upon
which he sought to rely to persuade the court that it would be equitable to
allow his claim to proceed. There was
therefore an unsatisfactory and insufficient factual basis for the court to
exercise its section 19A discretion and fair notice had not been given to the
defenders of the factual basis of the application under that section.
[73] Senior counsel proceeded next to deal with the pursuer's case
of vicarious liability against the Order.
It had been submitted on behalf of the pursuer that the Lord Ordinary
was correct in holding that vicarious liability might exist upon the basis of a
relationship of principal and agent.
Senior counsel submitted, first, that the Lord Ordinary had erred in
paragraphs [93] to [94] of her Opinion in concluding that, while the pursuer's
averments were insufficient to support a case of vicarious liability on the
part of the Order based on an employer/employee relationship, they were
sufficient to support a relevant case based on agency. The fact was that there was no basis whatever
in the pursuer's pleadings for such a case.
It was not even mentioned in the most peripheral way. There were no averments of fact and no
pleas-in-law supporting such a case. The
Lord Ordinary had engaged in a frolic of her own. In these circumstances, the first to eighth
named defenders should succeed.
[74] Even if the complete lack of pleadings to support a case of
agency on the part of the pursuer were overlooked, it could hardly be contended
that the wrongful acts attributed to members of the Order were within the scope
of any comprehensible authority, rendering these defenders liable. In any event, there was no authority to show
that, in general, a principal was vicariously liable for the wrongful actings
of an agent. In that connection reliance
was placed on Mair v Wood.
No attempt had been made on behalf of the pursuer to cite any authority
to support the pursuer's position. No
reference had been made to the standard works on agency such as Agency, Bowstead and Reynolds, (16th
edition in 1996). The case of Lister and Others v Hesley Hall Limited had no relevance to this context, since it was
an employment case.
[75] Turning to the Lord Ordinary's analysis of the situation in
paragraphs [93] to [95] of her Opinion, she had focused first on the matter of
agency and secondly on the scope of the authority of members of the Order. As regards the former, the Lord Ordinary
appeared to have overlooked that the essential feature of an agency
relationship was that the agent, either expressly or impliedly consented to act
so as to affect the principal's relations with a third party, in other words
the purpose of agency was the creation of a legal relationship between the
principal and a third party. However,
that concept simply had no application to the admitted circumstances of this
case. There was no question of members
of the Order being at St. Ninian's School in order to create a legal
relationship between the Order and any third party. Quite simply, members of the Order were not
present in the school to undertake any agency function. The Lord Ordinary had made no attempt to
explain how her analysis consisted with the acknowledged statutory regime
whereby the school managers were legally responsible for the care and welfare
of the children at the school and employed members of the Order and other staff
at the school. Having regard to the
statutory regime, the only tenable analysis, absent averments to the contrary,
was that the school managers were legally responsible for the teaching, care
and supervision of the children at the school and that the school managers
employed the staff at the school, including members of the Order. Averments that members of the Order were
"sent" to the school and that the Order "supplied most of the teachers to the
school" had to be read in the context of the statutory provisions which made it
clear that teachers at the school were employed by the managers. At page 10A to B of the reclaiming print the
pursuer himself had averred that the ninth to fifteenth named defenders, the
managers, had various responsibilities under and in terms of the Approved
Schools (Scotland) Rules
1961. These defenders were responsible
for discussing complaints made by the pupils with the headmaster. They were responsible for the management of
the school in the interests of the welfare, development and rehabilitation of
the pupils. Those averments were
inconsistent with the Lord Ordinary's analysis.
It had been contended on behalf of the pursuer that the definition of
"managers" in section 110(1) of the 1937 Act included the Order. That contention was plainly wrong. It was clear from Rules 10 and 11 of the 1961
Rules that the managers were responsible for the employment, suspension and
dismissal of staff. Members of the Order
could not be employed by themselves.
[76] There were a number of factors which undermined the Lord Ordinary's
analysis. These were:
(1)
not all of the staff at the school had been members of the Order; (2)
the Order did not own the school;
(3) the Order did not set up the
school; (4) the Order played no part in the selection of
pupils; (5) the Order had no responsibility for the care
and welfare of the pupils; that
responsibility attached to the managers;
(6) none of the managers were
members of the Order, as appeared from the list thereof contained in item 5 of
the appendix; (7) there were no averments to the effect that
the Order appointed the managers;
(8) the Order did not employ
staff at the school; (9) the staff were employees of the managers as
appeared from the pursuer's own averments at pages 8C to D and 10A to B of the
reclaiming print; (10) there was nothing in the pursuer's averments
to show that the Order exercised day-to-day control over the activities of its
members who were teachers at the school;
and (11) as far as the 'drunk
brother' incident was concerned, the head of the Order plainly had an interest
in the situation regardless of control;
that incident did not show day-to-day control on the part of the Order,
or its head. Looking at all of the above
factors, it was plain that the managers were in day-to-day control of the
school; they were the operators of the
school, not the Order.
[77] The second element in the Lord Ordinary's analysis was her
examination of the scope of the alleged authority of members of the Order
involved in teaching at the school, contained in paragraph [95] of her
Opinion. Once again this matter was the
subject of no pleadings by the pursuer.
This part of the Lord Ordinary's analysis was misconceived, since the
scope of the authority of an agent was relevant to the question of whether the
agent could create a legal relationship between the principal and a third
party. Nothing of that kind was involved
here. Members of the Order were not in
fact fulfilling an agency function.
Accordingly, the issue of their authority as agents simply did not
arise. In paragraph [95] of her Opinion,
the Lord Ordinary considered the case of Lister
v Hesley Hall Limited. However, that case had no bearing on the
scope of the authority of an agent. It
was concerned with the scope of the authority of an employee. The Lord Ordinary had expressly rejected a
contention that the pursuer's averments were capable of supporting a case of
vicarious liability on the part of the Order, based on an employer/employee
relationship, as appeared from paragraph [93].
[78] Furthermore, the Lord Ordinary had erred in failing to notice
that the legal status of the Order was such that a relationship of principal
and agent could not arise between the Order and its members. The Order was an unincorporated voluntary
association. As such it did not have a
legal persona distinct from its
members. There was no contract between a
member of the Order and the Order itself.
The constitution of the Order represented a contract between its
members. Thus the Order could not be a
principal in a relationship of agent and principal with its members. Nor could it enter into a contract with its
members whereby an agency relationship was created. In this connection reliance was placed upon Harrison v West of Scotland Kart
Club. The doctrine of vicarious
liability necessarily required the existence of two separate legal entities,
one of them acting on behalf of the other.
However, in the present case the Order was not a separate legal entity
and could not therefore be vicariously liable.
In this connection reliance was placed on Carmichael v Bearsden and District
Rifle and Pistol Club.
[79] Senior counsel finally turned to the decision of the Lord
Ordinary to allow a preliminary proof on the question of the status and
circumstances of the school managers, expressed in paragraph [141] of her
Opinion. There was no proper basis for
such an investigation, since the status of the managers was a matter of
law. In paragraph [142] of her Opinion,
the Lord Ordinary had allowed a preliminary proof before answer on time-bar
issues in terms of both section 17(2)(b) and section 19A of the 1973 Act, on
the terms outlined in paragraph [138] of her Opinion. The Lord Ordinary had given no reasons for
the exercise of her discretion in that way, so this court would require to
consider the issue de novo. It was submitted that the decision which she
had reached was in fact appropriate, upon the assumption that there were
averments relevant for enquiry, which there were not. A preliminary proof would be appropriate,
since it would be very much shorter than a proof before answer on the whole of
the issues in the case and might result in a determination. The cross-appeal should be refused.
Submissions by senior counsel for the eighteenth named defender
[80] Senior counsel began by adopting the submissions of junior
counsel and relying upon the written submissions for the eighteenth named
defender. The court should sustain this
defender's first and fifth pleas-in-law and dismiss the action, so far as
directed against him. It appeared that
the pursuer was founding on two duties of reasonable care said to have been
owed by the Scottish Education Department.
There was no suggestion that the pursuer was advancing a case of breach
of statutory duty against this defender.
It was of interest to note that junior counsel for the pursuer did not
respond to the submission for this defender that the alleged duty to take
reasonable care to remove a pupil from the school was equivalent to take
reasonable care to close the school. It
had to be recognised that the Lord Ordinary had excluded Condescendences VIII
and IX from probation, as appeared from paragraphs [127] and [139] of her
Opinion. That part of her decision was
not under challenge. Thus the pursuer
had been forced into relying upon a case involving two alleged duties of
reasonable care at common law. These
were, first, the duty stated at page 58D to E in Condescendence X, at page 58
of the reclaiming print. It was
submitted that the words "non-delegable" added nothing, as had been submitted
to the Lord Ordinary. It was contended
that the Scottish Education Department had not been subject to any common law
duty of reasonable care owed to the pursuer.
In any event, the duty alleged as a "non-delegable" duty in Condescendence
X was stated as a duty of insurance, as opposed to one requiring the exercise
of reasonable care. There was no basis
whatsoever for such a duty. It may have
been that the use of the phrase "non-delegable duty" may have created confusion
in the mind of the Lord Ordinary and deflected her attention from fundamental
legal principles. In her judgment, in
particular, there was no consideration of the conventional criteria which had
to be applied in any determination of whether the circumstances averred were
sufficient to give rise to any duty of reasonable care. In particular, she had never applied her mind
to a consideration of whether there existed between the Scottish Education
Department and the pursuer a relationship of proximity, whether the necessary
test of reasonable foreseeability had been satisfied and whether it was fair,
just and reasonable for the court to hold that a duty existed. These considerations had been completely
ignored. The second duty relied upon by
the pursuer was averred at page 61A to D and 62B to C of the reclaiming
print. Part of these averments had been
excluded from probation by the Lord Ordinary.
These passages were repetitive.
They appeared to be stated as a duty to exercise reasonable care. In relation to these, it was submitted that
the pursuer's averments of fact did not provide a sufficient basis for these
duties. In particular, there were three
reasons for that. First, there was no
relationship of proximity between the pursuer and the Scottish Education Department. Secondly, it was not reasonably foreseeable
that the pursuer might suffer harm if the duties averred against the eighteenth
named defender were not obtempered. Thirdly,
it was not fair, just and reasonable that such duties should be imposed by the
court on the Department.
[81] Senior counsel went on to elaborate the foregoing
submissions. He contended that the
Scottish Education Department had had certain responsibilities to the public at
large, but not to individual pupils in approved schools. Reference had been made to those public
duties at page 59A to 60C of the reclaiming print. These were, in fact, duties or powers
relating to the national system of approved schools for offenders and young
people in need of care and protection at the material time. They showed that the Scottish Education
Department had exercised general supervision over the system of approved
schools. An Inspectorate played a part
in informing the Scottish Education Department of relevant circumstances. Among these responsibilities was one to see
if a child could properly be discharged from an approved school, in the light
of progress made, in order to minimise detention at public expense. However, the Department had no part to play
in relation to the care of individual pupils;
that had been the responsibility of the managers of the relevant
approved school. The statutory position
of the Scottish Education Department and that of the managers pointed away from
the conclusion that the Department had owed a duty of care to individual
pupils. The circumstances were similar
to those in X (Minors) v Bedfordshire County Council. The case involving Dorset County Council, reported as part of the whole report was
pertinent. It was held that the aim of
the statute under consideration was to provide, for the benefit of society as a
whole, an administrative machinery to help one disadvantaged section of
society. However, the defendant
authority owed no common law duty in the exercise of the powers and discretions
specifically conferred upon it by the statute.
[82] Looking at the terms of the 1937 Act, it was evident that the
Scottish Education Department had had certain responsibilities for the general
administration of the approved school system, which were specified particularly
in the Second Schedule to that Act. But
it was obvious from the detailed provisions of the Schedule, in particular
paragraphs 1, 7, 9, 11 and 12 that the direct responsibility for care of pupils
lay with the managers of particular schools.
No meaningful analogy could be drawn with the prison system. If any particular duties of care were owed to
individual pupils, those duties were owed by the managers of the school in
which they were resident.
[83] Senior counsel then proceeded to make a series of submissions
relating to the issue of proximity.
First, counsel for the pursuer had drawn attention to the fact that, at
the material time, the pursuer had been deprived of his liberty, in consequence
of which he was resident at St. Ninian's School. She had contended that, because the State had
deprived the pursuer of his liberty, it had also assumed responsibility for his
welfare. Senior counsel submitted that
such a broad concept of the State had no part to play in the law of fault and
negligence; it was more apt in the
context of human rights, with which this case was not directly concerned. In any event, it was not accurate to say that
the appellant had been deprived of his liberty by the State. The depravation of liberty was a consequence
of an order made by a court. While the
prison system might properly be seen as the immediate responsibility of the
State, approved schools were not, having regard to the legal structure within
which they had been created. The
Scottish Education Department had had no part to play in the deprivation of the
appellant's liberty, nor had it established the approved school system; Parliament had enacted for that. All of the powers of the Scottish Education
Department were discretionary and of a supervisory nature, with one exception,
the duty which that Department had had to release pupils in certain
circumstances. In the context of common
law negligence, there never was a defender who was the State. If it was sought to establish liability
against a public authority, the public authority had to be identified and the
necessary criteria had to be satisfied.
[84] Secondly, when he was placed as a pupil in St. Ninian's School,
the pursuer had not been put into the care of the Scottish Education Department
in any meaningful sense. Nor had that
Department established St. Ninian's School in particular. It did not manage or operate the school. In modern parlance, the Scottish Education
Department might have been seen as a regulator.
In the present action, the pursuer did not seek to attribute fault to
the Scottish Education Department in a regulatory or supervisory capacity; rather the pursuer sought to make the
eighteenth named defender liable in respect of breach of duties that had never
been imposed upon the Department. In
substance, the pursuer was attempting to make the Scottish Education Department
liable for breaches of duties which had in fact been owed to the pursuer by
others. The appellant was attempting to
say that the common law might be used to innovate on the allocation of
responsibilities which had been determined by the legislature. That was fundamentally wrong.
[85] Thirdly, Barrett v Enfield London Borough Council, relied
on by the pursuer could be distinguished.
The plaintiff, as a child, had been placed in the care of the defendant
local authority pursuant to a care order when he was 10 months old and had
remained there until the age of 17. That
situation was, in no way, comparable with the circumstances of the appellant
vis á vis the Scottish Education Department.
The case was of no assistance in the present context.
[86] Fourthly, at page 60E to 61A of the reclaiming print the pursuer
averred that he had been transferred to St. Ninian's School on 7 June 1963. The selection of the school was believed to
have been made by the Scottish Education Department. The question arose of whether the
relationship of proximity required as a basis for a claim by him against the
eighteenth named defender could properly be based upon that alleged selection
by the Department of St. Ninian's as the school to which the pursuer should be
sent. It was submitted that it could
not. In connection with this submission
senior counsel made a number of observations.
First, the duties alleged by the pursur against the Department were
framed as owed to all children in approved schools. It was not expressed as a duty not to send
children to St. Ninian's, but as a duty to remove children from the school, or
exercise care for their welfare there.
Thus there was a disconnection between the expression of the duties and
the selection of the school. In any
event, section 74 of the 1937 Act, properly construed required the court, after
considering representations by the relevant education authority, to specify the
approved school considered most suitable in the particular case. In that process, the Scottish Education
Department had had no statutory role whatsoever. The pursuer's case did not appear to have been
framed with regard to the statutory provisions.
If the Scottish Education Department had been involved in any way, it
could only have been in furnishing information concerning approved schools, so
that the court might consider which school was suitable in a particular
case. It could not be contended that, in
performing that function, the Department had made itself into the pursuer's "neighbour"
in the sense in which that word was used in the law of negligence. What appeared to be suggested was that the
Scottish Education Department should not have made available the name of St.
Ninian's School as a possible destination for a child who was to be made the
subject of an approved school order.
However, that amounted to a suggestion that approval of the school at
all was inappropriate; yet, no such case
was made. Further, if that was the
approach followed by the pursuer, a question arose of when that posture should
first have been adopted by the Scottish Education Department; that issue had a bearing on the question of
causation. That question had not been
addressed by the pursuer.
[87] Reliance by the pursuer on the case of Napier v The Scottish
Ministers was completely misconceived.
The case was concerned with conditions in prisons. Under section 1 of the Prisons (Scotland) Act 1989,
it was provided that all powers and jurisdiction in relation to prisons and
prisoners should be exercised by the Scottish Ministers. It was for that reason that counsel in that
case had accepted that the Scottish Ministers were potentially responsible for the
matters concerned.
[88] Senior counsel turned next to consider the observations of the
Lord Ordinary in relation to the particular subject-matter of the submissions
that he had been making. He pointed out
that the issue of proximity had not been addressed directly in her Opinion at
all. However, in paragraphs [112] to
[118], the Lord Ordinary considered, under the heading of non-delegable duty of
care, the position of the Department, represented by the eighteenth named
defender. In paragraph [113], the Lord
Ordinary appeared to rely on the decision of the House of Lords in Lister v Hesley Hall Limited, but that case had no relevance to the present
circumstances, since it was concerned with what was or was not within the scope
of employment of the alleged wrongdoer.
In addition, in that paragraph the Lord Ordinary had quite inaccurately
summarised what she conceived to be the factual background of the present
case. Furthermore, she had fundamentally
misunderstood the nature of the legislation relating to approved schools and
the involvement of the Scottish Education Department. The facts were that the pursuer and other
children were not allocated "by the Government to Government-created
residential schools such as St. Ninian's."
The pursuer and other children were the subject of approved school
orders made by the courts. There was no
sense in which St. Ninian's was a "Government-created residential school". St. Ninian's
had been established essentially by interests connected with the Roman Catholic
Church. If the circumstances to which the
Lord Ordinary adverted in paragraph [113] were regarded by her as material, her
decision must be seen as unsound, since it was based upon inaccurate facts.
[89] In any event, the Lord Ordinary appeared to have rejected what
might be described as the traditional basis for liability and to have put
something in place different from and going beyond that. Her decision was manifest judicial
legislation. The last sentence of paragraph
[113] appeared to suggest the existence of a duty of care incumbent upon a
Government body, in circumstances where there was no fault. She had cited no authority which would
justify such a view of the law. Even the
pursuer's advisers did not support this part of her judgment. The pursuer's counsel had argued only for
liability on the basis of failure to exercise reasonable care. The Lord Ordinary appeared to be attempting
to use the concept of non-delegable duty to create no-fault liability on the
part of the State. That was completely
misconceived. The views expressed by the
Lord Ordinary in paragraph [118] of her Opinion were very surprising. There appeared to be no attempt to endeavour
to apply accepted legal tests for the existence of a duty of care. In addition, once again, the Lord Ordinary
appeared to have misapprehended the decision in Lister v Hesley Hall Limited. She had completely ignored the statutory
context within which the approved school system had operated and had equated a
supervisory function with direct responsibility for the care and welfare of
approved school pupils. There was
nothing in the Lord Ordinary's Opinion to show that she had even considered the
appropriate tests for the existence of a duty of care on the part of the
Scottish Education Department. No such
duty had been relevantly averred.
[90] Turning to the issue of foreseeability, senior counsel adopted
the submissions of his junior. The
averments in Condescendence VI did not support the assertion that the Scottish
Education Department knew of systematic abuse taking the form of the regular
and routine assault of pupils. The
averments did not focus on what the Scottish Education Department inspection of
St. Ninian's School had revealed, yet that was the only basis for knowledge on
the part of the Department. In addition
to that, no case had been formulated to the effect that the inspection of the
school was defective.
[91] Senior counsel went on to consider the application of the
"fair, just and reasonable" test. He
drew attention to paragraphs 37 to 41 of the written submissions for the
eighteenth named defender. Quaquah v Group 4 (Total Security) and the Home Office (23 May 2001; unreported) was of assistance. The claimant had been detained in an
Immigration Detention Centre and was charged with offences of violent disorder
arising from disturbances occurring there.
Following his acquittal he brought an action of damages against the
first defendant, as being vicariously liable for the defamatory allegation made
by the detention officer employed by them, and against the Home Office, on the
basis of a non-delegable duty to ensure the safety and wellbeing of those held
in detention centres. Wright J. held
that the claim against the second defendant, the Home Office, should be struck
out as disclosing no sustainable cause of action. He observed that, if the submissions put
forward on behalf of the claimant were sound, then it would follow that the
Home Secretary would be under a wide-ranging liability for a number of persons
and organisations over which he did not have, and never had had, any direct
control. Such an accretion of
responsibility was not necessary to ensure that detained persons were properly
treated and would be able to recover compensation if they were not. Translating what had been said in that case
to the present circumstances, rejection of the pursuer's case against the
eighteenth named defender would not mean that he had no remedy. Plainly he would have had a remedy against
the managers of St. Ninian's School, had he chosen to pursue it. For a body to be under a duty of care to
others, it had to be shown that it was responsible for their care and welfare,
as appeared from A v The Ministry of Defence and Another
[2005] QB 183. There could be a duty
of care only where the claimant had suffered some injury while in an
environment over which the defendant had had some control. The necessary precondition of control was
important, as appeared from paragraph 47 of the Opinion of the Court. There was no averment made by the pursuer
that the Scottish Education Department had been in control of the environment
in St. Ninian's Approved School. In
short, the pursuer's case failed in relation to all of the three tests which it
would require to pass for a duty of care to be held to exist.
[92] Senior counsel next turned to deal with the issue of the
alleged vicarious liability of the Department which the eighteenth named
defender represented. He relied upon
submissions of his junior and the written submissions. Essentially the points to be made were that,
first, the pursuer made no averments explaining how the eighteenth named
defender could be vicariously liable.
The only attempt to do so had been the pursuer's averment at page 11B to
C of the reclaiming print, in which it had been alleged that some of the staff
who worked at the school had been employed by the eighteenth named defenders
statutory predecessors, but that averment had been excluded from probation by
the Lord Ordinary, so not only were there no relevant averments upon the basis
of which vicarious liability might arise, but also it was evident from the
statutory structure under which approved schools had operated that the only
persons who might have been vicariously liable for the wrongdoing of members of
the staff were the managers. In terms of
the Rules of 1961, the managers employed the staff. What had been said by the Lord Ordinary in
paragraph [111] of her Opinion was based on a mistaken interpretation of the
1961 Rules. Even if the Department had
played some role in the selection of staff, it was not made clear why that
should lead to the conclusion that the Secretary of State had been vicariously
liable for the acts of the staff in the course of their employment. The essence of vicarious liability lay in the
control exercised by the employer over the employee's work. There was nothing in the 1961 Rules to
indicate that the Department had exercised any control over the day-to-day
activities of staff in the school in the course of their employment. Furthermore, while selection of staff might,
in certain circumstances, give rise to liability, no such case had been made in
this action. The core of the Lord
Ordinary's decision was to be found in paragraph [111] of her Opinion where she
referred to the Scottish Education Department being regarded as "in some way
involved in the employment of a monk such as Brother Benedict" then there might
be liability for the abuse perpetrated by that monk. She considered that an enquiry into the
position of the Department was appropriate.
However, there was no basis whatever for this conjecture on the part of
the Lord Ordinary. Once again, it had to
be emphasised that the Lord Ordinary's reliance upon Lister v Hesley Hall Limited,
in this context, was misconceived for the reasons already explained. The Lord Ordinary had not addressed the prior
issue of the alleged legal basis for vicarious liability where no employment
existed. As Lord Steyn said in paragraph
14 in that case, vicarious liability was a legal responsibility imposed on an
employer, although he is himself free from blame, for a tort committed by his
employee in the course of his employment.
In all the circumstances no relevant case had been stated against the
eighteenth named defender.
Submissions of senior counsel for the pursuer
[93] Senior counsel adopted the submissions already made on behalf
of the pursuer and made reference to a skeleton argument prepared for him. The case raised important issues relating to
time-bar, institutional abuse and also the position of the Scottish Education
Department and Secretary of State for Scotland at the
material time. Pleading defects ought
not to stand in the way of an appropriate investigation of the pursuer's
case. In any event, the pursuer's
pleadings were not so deficient that it could be said that his case was bound
to fail; accordingly a proof should be
allowed. One of the principal questions
which arose was whether the de La Salle Order could be held vicariously liable
for the criminal acts of its agents, the brothers. It was submitted that their position as
agents was a sufficient basis for such liability. The acts founded upon were sufficiently
closely connected with the activities of the brothers as to involve vicarious
liability in accordance with the decision in Lister and Others v Hesley
Hall Limited.
[94] The question arose as to what was the proper form of procedure
to be ordered in this type of case;
whether there should be a preliminary proof, or a proof before answer
with all pleas standing. It was
submitted that especially in cases where there had been a conviction, the
extreme stress for the claimant of having to give evidence twice and the huge
delays which had built up meant that the most appropriate procedure would be
the allowance of a proof before answer at large with all pleas standing.
[95] The salient facts of the case were clear. The pursuer had been a pupil in
St. Ninian's Approved School between the ages of 9 and 12. He had been subjected to a brutal and
sadistic regime throughout that time.
Brother Benedict, the sixteenth named defender had been convicted in
2003 for various assaults upon the pursuer.
The school had been run by brothers from the de La Salle Order to
whom the Scottish Education Department had paid a lump sum subsidy. Members of the Order had been sent to work at
the school. It was claimed that the
Order had operated the school until the 1980s, according to its own
solicitors. The headmaster had been a
member of the Order. He was in de facto control of the school. The managers met only monthly and so the
Order ran the school on a 24 hour, 7 day a week basis. Like many others, the pursuer had been
silenced by the abuse to which he had been subjected and did not come forward
until 1999 when he had read a newspaper report.
He felt then for the first time that he might be believed. On account of suppressed memory and shame,
the pursuer, like other persons in similar positions, had been unwilling and
often unable to speak about their experiences until they felt confident that
they would be believed. Not until 1999
had the pursuer become aware that his psychological problems were due to his
treatment in the school.
[96] The issue of time-bar was the most important question in the
case. The question for the court was
whether the Scottish courts should follow the approach adopted in England to the
equivalent of section 17(2)(b)(i) of the 1973 Act. The wording of the legislation in the two
jurisdictions was different, but it was submitted that the effect was the
same. Nevertheless it was recognised
that the court had to proceed upon the basis of the Scottish legislation. There were both subjective and objective
components in the statutory test applicable to Scotland as
appeared from Prescription and Limitation, Johnston paragraphs 10.29 to 10.32. Some account had to be taken of the
particular characteristics of the claimant in question. In section 17(2)(b) the words appeared
"the date ...
on which the pursuer in the action became, or on which, in the opinion of the
court, it would have been reasonably practicable for him in all the
circumstances to become, aware of"
the statutory facts. Looking at the first of the defined statutory
facts, it also contained a subjective element, in that the words used were
"that the injuries in question were sufficiently serious to justify his
bringing an action of damages ... ". The
question which arose was when, from the point of view of the pursuer, an abuse
victim who was subject to the silencing effect of abuse, he was aware, or when
it was reasonably practicable for him to have become aware that the injuries
concerned were sufficiently serious to justify him going to a solicitor to
commence an action. The answer to these
questions was in 1999. In connection
with this submission, reliance was placed on Catholic Care and Another v
Young [2006] EWCA Civ 1534. Senior
counsel relied particularly on paragraphs 30, 34, 46 and 49. He contended that what had been said in that
case was consistent with the view taken by Lord Glennie in M.P. v Sister Zoe O'Neill and
Others in paragraphs [44] to [46] and [56] to [57]. The approach of Lady Smith in Jordan v Quarriers
(10 October 2006; unreported) was similar. The basis of the partly subjective approach
in the Scottish legislation was the words "him in all the circumstances",
appearing in section 17(2)(b) of the 1973 Act.
Summarising the position, senior counsel contended that the two Outer
House cases referred to pointed in the same and correct direction. Lady Smith had not dealt with distinct and
different injuries, such as had been the subject of decision in Carnegie v The Lord Advocate. In the
present case there were averments of separate injuries. One thing that emerged from K.R. and Others v Bryn Alyn Community (Holdings) Limited showed was that the
statutory limitation provisions raised fact-sensitive questions, which could
only be determined after evidence had been heard on a case-by-case basis. The pursuer in the present case had had
memories, but these had been suppressed.
That did not suggest that he had considered the injuries sufficiently
serious to justify raising an action.
[97] Senior counsel went on to focus attention upon the provisions
of section 17(2)(b)(ii), which he said were of particular importance in this
case. The pursuer's major injuries were
psychological problems. In July 1999 he
sought medical help relating to these matters.
Only then had he come to realise that his problems were attributable to
his treatment in St. Ninian's. If the pursuer
had to have knowledge of all of the statutory facts, which was the case, and he
had not known until 1999 that the major component of his injuries was
attributable to the abuse, then time did not start to run until 1999. Carnegie
v The Lord Advocate provided for
support for this contention, particularly the observations of Lord Johnston at
paragraphs 20 to 21. Under section
17(2), there could be different starting dates for different conditions.
[98] Finally, on the issue of time-bar it was submitted that there
ought to be a proof before answer because the issues involved could not
properly be dealt with on the pleadings alone.
Even if the court were not prepared to allow a proof in relation to
issues arising from section 17(2) of the 1973 Act, then the pursuer sought a
proof in relation to section 19A. The
delay which had occurred in the bringing of proceedings could be shown to be
due to the nature of the injuries inflicted.
It was a matter of balancing the equities in the case, but the pursuer's
position was a very powerful one.
[99] Senior counsel moved on to consider the issue of the liability
of the eighteenth named defender. He
observed that there had been a change of front as compared with the position
taken up before the Lord Ordinary. The
arguments presented to her were narrated in paragraphs [40] to [44] of her
Opinion. The pursuer's averments in
relation to this matter were to be found in Condescendence X. The third sentence of that Condescendence had
been formulated on the basis of New South Wales v Lepore [2003]
H.C.A. 4. The pursuer's position was
that the duty was one of reasonable care, not an absolute duty. The Scottish Education Department had had the
requisite responsibility. The situation
was comparable with that disclosed in Napier
v The Scottish Ministers. The duty was one to exercise reasonable
care. The duty in such cases as Napier v The Scottish Ministers arose, not because of prison legislation,
but because there was a basic constitutional imperative that the State had an
ongoing duty of care for the welfare of persons incarcerated by it. In all the circumstances the Lord Ordinary
had been well entitled to reach the conclusion that she did.
[100] The eighteenth named defender relied on the single judge decision
in Quaquah v Group 4 (Total Security) and Another. The decision in that case showed all the
signs of being an extempore judgment. It
did not address the considerable jurisprudence on non-delegable duty in the United
Kingdom, Australia and Canada. The Lord Ordinary had dealt with
non-delegable duty in paragraphs [112] to [119] of her Opinion. The fallacy of the approach of the eighteenth
named defender was to rely on delegation by legislation to the managers and
headmaster in order to say that there was no original duty of care. If the matter were looked at as suggested on
behalf of the pursuer, then that legislation was simply a recognition by
Government that it required to make provision for approved schools in
fulfilment of its duty of reasonable care.
That was delegation by legislation, but that did not remove the fundamental
duty resting on the Government. In
providing for approved schools by legislation, the Government had retained
powers to give directions, to appoint inspectors and to remove approval from
any school. The question had to be asked
why that was so. It was because there
was, in the legislation, a recognition of the overarching duty contended for.
[101] Senior counsel next turned to consider the issue of direct
liability of the Scottish Education Department.
This had been dealt with by the Lord Ordinary in paragraphs [102] to
[104] of her Opinion. The high-water
mark of the pursuer's case was to be found in Rule 4 of the 1961 Rules. In addition, the averments at pages 59 to 60
of the reclaiming print had to be taken into account. The powers retained by the Scottish Education
Department had been considerable. The
State had not passed over all its responsibilities and retained a duty of
reasonable care. An inspector had been appointed
to examine the school, as appeared from the pursuer's averments at pages 35C to
36D of the reclaiming print. There had
been a Government failure to bring a brutal regime to an end. During the course of the debate there had
been much reference to X. v Bedfordshire County Council and to the
three tests enunciated in Caparo
Industries plc v Dickman [1990] 2 AC 605. These matters had not been
argued before the Lord Ordinary.
However, it was submitted that those tests could be satisfied in the
circumstances of this case. There was
the necessary proximity, based upon the residual functions of the Scottish
Education Department. As regards
foreseeability, that test also could be satisfied since ill-treatment was one
of those things which happened in such institutions. Finally, it was plainly fair, just and
reasonable to recognise a duty on the Scottish Education Department, having
regard to the special position of young persons placed in an approved school
away from home and friends. There was
also a need to hold the Government to account when the regime of managers that
they had established was so fragile.
[102] Senior counsel then turned to consider the position of the first
to eighth named defenders. He adopted
the submissions which had been made by junior counsel. The Scottish Education Department had been
funding the Order to run St. Ninian's Approved School, by providing the
headmaster and staff. The Order sent
their members to undertake this function and they operated and ran the school
on a continuous basis. It was contended
that they were in loco parentis to
the pupils. The statutory managers were
a remote body which met once a month. It
had been contended on behalf of these defenders that the Order had not owned or
established the school and had played no part in sending boys to it. It was said that they had had no
responsibility for the care and welfare of the boys. That position had not been pleaded, which was
very unfortunate. In this connection
reference was made to Macdonald and
Another v The Board of Management for
Glasgow Western Hospitals. The
precise arrangements in the school had not been made the subject of any
averments.
[103] The pursuer also advanced an argument, which had been accepted by
the Lord Ordinary, that there existed a vicarious liability for the actings of
agents. The Lord Ordinary's conclusion
on this matter in paragraphs [88] to [97] was sound. Reliance was placed on Dubai Aluminium Co. Ltd. v Salaam
and Others [2003] A.C. 366. There
was no reason why a principal should not be liable for the criminal acts of his
agent as Gloag and Henderson
suggested at paragraph 33.05.
[104] Dealing with further procedure, senior counsel suggested that
there should be a proof before answer on the whole case with all pleas left
standing. The form of investigation that
might take place was at the discretion of the court. An important consideration was that giving
evidence twice would be extremely stressful for the pursuer and should be
avoided. There were certain dangers
attached to a preliminary proof restricted to particular aspects of the case,
since evidence led at such proof might require to be led again in a general
proof, which would create difficulties if discrepancies occurred. In all the circumstances a general proof
should be allowed.
The decision
The statutory structure of the approved school system
[105] In the course of the debate before us, and, in particular, in the
context of the case made by the pursuer against the first to eighth named
defenders, various assertions have been made regarding the part said to have
been played by members of the Order in the running of St. Ninian's Approved
School, at the material time. Furthermore,
in discussion of the case sought to be made by the pursuer against the
eighteenth named defender, certain submissions were made to us concerning the
extent to which the Secretary of State for Scotland possessed powers in
relation to approved schools, such as St. Ninian's. Against that background and having regard to
the necessity of considering the application of the criteria by which it must
be decided whether or not a duty of care was owed by the first to eighth named
defenders, or the Scottish Education Department, to the pursuer, which were
enunciated in Caparo Industries plc v
Dickman, in my view, it is necessary
to examine the statutory arrangements under which the approved school system
operated at the material time. Only thus
is it possible to identify where responsibility lay for the proper operation of
such schools.
[106] These arrangements are to be found in the 1937 Act, as amended by
the Criminal Justice (Scotland) Act 1963, and in the 1961 Rules, to which
reference has already been made. Dealing
first with the 1937 Act, it is to be noted that pupils in an approved school
might have come to be there for several different reasons. Under section 61 of the Act, an approved
school order might be made by any court by or before which a child or young
person was found guilty of certain offences.
Under section 62, the Secretary of State possessed the power to send
certain juvenile offenders and others to approved schools. However, it is clear from the provisions of
section 66 of the 1937 Act that the commission of an offence by a child or
young person was not a necessary prerequisite for the making of an approved
school order; such an order could be
made by a juvenile court, if it was satisfied that the child or young person
was in need of care or protection. Likewise,
under section 68 of the Act, where a juvenile court was satisfied that the
parent or guardian of a child or young person was unable to control that child
or young person, the court was empowered to make an approved school order. Section 74 of the Act contained detailed
provisions as to the contents of approved school orders. In such orders it was necessary to specify,
among other things, the age and religious persuasion of the child or young
person with respect to whom it was made.
[107] Sections 83 to 85 of the 1937 Act contained important provisions
concerning the establishment of approved schools. Section 83(1) provided:
"(1) The managers of any school intended for
the education and training of persons to be sent there in pursuance of this Act
may apply to the Scottish Education Department to approve the school for that
purpose, and the Scottish Education Department may, after making such enquiries
as they think fit, approve the school for that purpose and issue a certificate
of approval to the managers."
Under section 83(2), if at any time
the Scottish Education Department were dissatisfied with the "condition or
management of an approved school, or consider its continuance as an approved
school unnecessary", they might by notice served on the managers withdraw the
certificate of approval. Likewise, under
section 83(3) the managers of the approved school might surrender the certificate
of approval of the school. Section 83(4)
provided that:
"No person
shall in pursuance of this Act be received into the care of the managers of an
approved school after the date of the receipt by the managers of the school of
a notice of withdrawal of the certificate of approval of the school or after
the date of a notice of intention to surrender the certificate ... ".
Under section 84 of the Act, it was
provided that an education authority, or combination of education authorities
might contribute sums of money "as they may think fit towards, the purchase,
establishment, building, alteration, enlargement, rebuilding or management of
an approved school ... ". Under section
85, the Scottish Education Department was empowered to
"classify
approved schools according to the age of the persons for whom they are
intended, the religious persuasion of such persons, the character of the
education and training given therein, their geographical position and otherwise
as they think best calculated to secure that a person sent to an approved
school is sent to a school appropriate to his case ... ".
Under section 85(3) the provisions
of the Second Schedule to the Act were given effect in relation to "the
administration of approved schools and the treatment of person sent
thereto." Under section 94 of the Act,
education authorities named in an approved school order as being the authority
within whose area the person to whom the order related was resident, or within
whose area the offence was committed, or the circumstances arose rendering him
liable to be sent to an approved school, were required to make in respect of
that person "throughout the time during which he is under the care of the
managers of an approved school" such contributions to the expenses of the
managers as might be prescribed.
Sections 106 and 107 of the 1937 Act contained certain supplementary
provisions as to the position of the Secretary of State. Under the former enactment the Secretary of
State and the Scottish Education Department might, for the purposes of their
respective powers and duties under the enactment relating to children and young
persons, appoint inspectors, who might be Inspectors of Schools. Under section 107 there were to be paid out
of money provided by Parliament such sums on such conditions as the Secretary
of State, with the approval of the Treasury, might recommend towards the
expenses of the managers of an approved school.
[108] Section 110 of the 1937 Act is an interpretation section. It is important in the present context because
it contains a definition of the word "managers" in relation to an approved
school. The definition is in the
following terms:
"'Managers',
in relation to an approved school established or taken over by an education
authority or by a joint committee representing two or more education
authorities, means the education authority or the joint committee as the case
may be, and in relation to any other approved school, means the persons for the
time being having the management of control thereof; ... ".
The provisions of the Second
Schedule to the 1937 Act relate exclusively to approved schools. Clause 1 of the Second Schedule authorises
the making by the Scottish Education Department of rules for the management and
discipline of approved schools.
Furthermore the managers of any approved school were authorised to make
supplementary rules for the management and discipline of the school, but such
rules required to be approved by the Scottish Education Department. Clause 6 of the same Schedule provided, inter alia:
"(2) The Scottish Education Department shall,
through their inspectors review the progress made by persons detained in
approved schools with a view to ensuring that they shall be placed out on
licence as soon as they are fit to be so placed out.
(3) The managers of the school may at any
time by order in writing revoke any licence, and require the person to whom it
relates to return to the school.
(4) For the purposes of this Act, a person
who is out on licence from an approved school shall be deemed to be under the
care of the managers of the school."
[109] Clauses 9 to 11 of the Second Schedule were concerned with
discharge and transfer. Clause 9(1) of
the Second Schedule provided as follows:
"The
Scottish Education Department may at any time order a person under the care of
the managers of an approved school to be discharged, or to be transferred to
the care of the managers of another school ... ".
Clause 12 of the Second Schedule is
of particular importance. It was in the
following terms:
"12(1) Subject as hereinafter provided, all rights
and powers exercisable by law by a parent shall as respects any person under
the care of the managers of an approved school be vested in them: ...
(2) The managers of an approved school shall
be under an obligation to provide for the clothing, maintenance and education
of the persons under their care ... ".
[110] It is necessary also to note certain provisions of the 1961 Rules
which are of importance in defining areas of responsibility. Rule 2 contains provisions concerning the
requirements for managers to meet, to visit the school, for the purpose
defined, that is to say, "to ensure that the conditions of the school and the
welfare, development and rehabilitation of the pupils under their care are
satisfactory." Rule 4 required the
managers to "manage the school in the interests of the welfare, development and
rehabilitation of the pupils ... ". Under
Rule 10, it was the managers who, in consultation with the headmaster,
determined "the number, type and qualifications of staff to be employed by
them". They were also responsible for
the appointment, suspension and dismissal of staff. The post of headmaster was to be filled by a
person appointed by the managers, in terms of Rule 10(5); however, no person could be appointed to such
a post without the prior approval of the Secretary of State. Under Rule 11(1) the headmaster was "responsible
to the Managers for the efficient conduct of the school in the interests of the
welfare, development and rehabilitation of the pupils." Finally, Rule 43 provided that it was the
duty of the managers to place out on licence each pupil as soon as he had made
sufficient progress.
[111] In my view, the legal characteristics and structure of the
approved school system clearly emerge from the foregoing statutory provisions,
which I consider require to be borne in mind in reaching conclusions in regard
to the particular responsibilities of those involved in the system. First, the management and control of an
approved school were the responsibility of the managers of that school. Pupils at such a school were under the care
of the managers. There were vested in
the managers all the rights and powers exercisable by law by a parent in
relation to any person in the care of the managers in an approved school. The managers had a responsibility to ensure
that the conditions of the school and the welfare, development and
rehabilitation of the pupils under their care were satisfactory. They had a duty to manage the school in the
interests of the welfare, development and rehabilitation of the pupils. The managers were responsible also for
decisions relating to the staff at the school, who were to be employed by
them. They were responsible for
suspension and dismissal of staff, once appointed. The headmaster of the school, who was a
member of its staff and employed by the managers, was responsible to them for
the efficient conduct of the school in the interests of the welfare,
development and rehabilitation of the pupils.
In certain respects, reflected in my summary of the relevant
legislation, the managers required the approval of the Secretary of State in relation
to certain decisions. Furthermore, the
Secretary of State was authorised to inspect approved schools through an
Inspectorate. As regards the funding of
approved schools the necessary resources were derived from the Secretary of
State and local education authorities.
That funding was then used by the managers to meet the various
disbursements which they had to make.
The decision of the Lord Ordinary
[112] It is convenient at this point to notice the way in which the
Lord Ordinary has dealt with the main issues in the case. Taking first the position of the first to
eighth named defenders in relation to possible liability to the pursuer, her
conclusion is expressed in paragraph [93], where she states that, while the pursuer's
averments were insufficient to support a case of vicarious liability on the
part of the Order, based on an employer-employee relationship, they were
sufficient to support a case based on agency.
In paragraph [94] the Lord Ordinary observes that, on the averments, the
Order agreed to provide teaching, care and supervision services for the
children at St. Ninian's. The Order
delegated those functions to certain of its members. In carrying out their tasks, Brothers
Benedict and Thadius were, in her view, acting as agents for their Order,
rendering that Order liable for their acts carried out in the course of their
agency. In her view, the ratio of Lister v Hesley Hall Limited
applied, not only to a situation where the wrongdoer was an employee, but also
where the wrongdoer was acting as agent for the Order. On this basis, the Lord Ordinary concluded
that the pursuer was entitled to an enquiry in relation to the first to eighth
named defenders.
[113] The Lord Ordinary then went on to consider the position of the ninth
to fifteenth named defenders, the school managers. In the light of the fact that the pursuer has
now abandoned this action, so far as directed against those defenders, it is
unnecessary for us to say anything about that part of the Lord Ordinary's
decision.
[114] The Lord Ordinary finally turned to consider the possible
liability of the Scottish Education Department, the successors of which are
represented by the eighteenth named defender.
She considers this issue in three ways, first, by reference to what she
calls direct liability, secondly, in relation to vicarious liability, and
thirdly, under the heading of non-delegable duty of care. In connection with the first of these bases
of liability, the Lord Ordinary considered the issue of foreseeability. She concludes in paragraph [104]:
"In my
opinion, there is sufficient on record to entitle the pursuer to an enquiry
into the facts in that the Scottish Education Department is averred to have had
knowledge about certain deficiencies in the school which might reasonably
foreseeably cause harm or injury to a child resident there."
On that basis alone, she concluded
that there were averments relevant for inquiry in relation to that matter,
although, in paragraphs [105] and [106], she excluded certain averments there
specified from probation.
[115] The Lord Ordinary then went on to consider the issue of vicarious
liability. In relation to this part of
the case, in paragraph [111], she concluded:
"Accordingly
the role played by the Scottish Education Department in the selection and
remuneration of school staff cannot at this stage be dismissed as
insignificant. If the Scottish Education
Department were to be regarded as being in some way involved in the employment
of a monk such as Brother Benedict, then the Scottish Education Department may
be liable for any abuse perpetrated by that monk: cf. Lister,
cit. sup. In my view, the question whether the Scottish
Education Department could be viewed as involved in the employment of monks
such as Brother Benedict is one of mixed fact and law which would best be
answered after evidence has been led."
[116] The Lord Ordinary finally discussed the matter of non-delegable
duty of care. She reaches her conclusion
on that matter in paragraph [113] where she says:
"In the
present case, I have ultimately concluded that the reasoning of the House of
Lords in Lister v Hesley Hall Limited [2002] 1 AC 215,
the developing jurisprudence relating to the concept of a non-delegable duty of
care in certain contexts, and underlying policy reasons, make it necessary for
the courts to recognise the existence of a common law non-delegable duty of care
on the part of a government body such as that represented by the eighteenth
defender in respect of children allocated by the government to government-created
residential schools such as St. Ninian's.
Such a non-delegable duty of care may be particularly relevant where it
is not possible to establish more traditional liability such as direct or
vicarious liability. In the context of a
non-delegable duty of care, liability may arise even where there has bee no
fault on the part of the government body."
In these circumstances the Lord
Ordinary concluded that the pursuer had pled sufficient to entitle him to an
inquiry in relation to this basis for liability.
[117] Dealing finally with the question of time-bar, the Lord Ordinary
considered first the impact of section 17(2)(b) of the 1973 Act. In paragraph [134] the Lord Ordinary
concludes:
"Against
that background it is, in my view, not possible in the present case for the
court to reach views about the statutory facts set out in section 17(2)(b)(i)
to (iii) without some inquiry into the facts.
I accept that the pursuer's averments are, on one view, confused and at
times possibly self-contradictory. It
may be that such a state of affairs is attributable to a lack of candour, as
maintained by counsel for the defenders.
Equally, however, the confusion and possible self-contradictions may be
attributable to the effect which the abuse has had on the pursuer, and possibly
also to changing attitudes and values in society."
In relation to the pursuer's case
under section 19A of the 1973 Act, in paragraph [136] the Lord Ordinary
concluded that a proof before answer would be appropriate.
The pursuer's case against the first to eighth named defenders
[118] For many years, the Scottish system of written pleadings has had,
as its object, the giving to parties, whether pursuer or defender, of fair
notice of the case which they require to meet.
In certain kinds of litigation, in recent years, the system has been
modified so as to require only a minimum of information as regards the case
being made. However, in this action, the
system must be operated in its established manner. It is with that in mind that I approach the
averments made by the pursuer, with a view to seeing whether the criticisms
made of them, on behalf of the first to eighth named defenders, are justified. A factor of relevance in this connection in
the present case is that St. Ninian's Approved School was operated within
the statutory framework which I have already outlined. The implication of that is that, to be
relevant, any case made by the pursuer requires to be framed so as to recognise
the existence and effect of the statutory provisions concerned and, in
particular, the legal allocation of responsibilities among all those involved.
[119] The averments made on behalf of the pursuer concerning the
alleged involvement of the first to eighth named defenders in the matters
giving rise to this action are to be found in Condescendences I, II and
VII. In Condescendence I there appear a
series of averments in general terms concerning the de La Salle Order. Averments are also made concerning the
position of the headmaster of St. Ninian's Approved School in terms of the
1961 Rules. Further, averments are made
concerning the responsibilities within the Order of the first named defender in
general terms. There follow certain
averments concerning the payment of salaries of members of the Order who taught
in what are described as similar schools in England. It is also averred that, in England, the Order
received a lump sum per child from the Home Office. It is then averred as a matter of belief that
similar arrangements were in place in Scotland. Finally, in this Condescendence reference is
made to a letter dated 29 July
1999 from English solicitors acting for the first to eighth named
defenders stating that the latter had "operated St. Ninian's School, Gartmore
until its closure in the early 1980s".
[120] In Condescendence II, with some repetition of what has already
been averred, the pursuer makes further general averments concerning the de La
Salle Order. There then follow certain
averments about events occurring on and after 6 November 1966 when it is said that "a
monk disgraced himself by appearing drunk and behaving badly with some of the
families present to visit their boys."
Following that incident it is said that meetings took place between the
Provincial and representatives of the Scottish Education Department.
[121] Finally, in Condescendence VII, it is averred that the defenders,
apparently a reference to the first to eighth named defenders, had certain
duties to care for the safety and welfare of children in the school, including
the pursuer. There then follows this
passage:
"The
pursuer's loss, injury and damage was caused by the fault of the monks and
other staff for whose acts or omissions the defenders are responsible.
The first
to eighth defenders, as representatives of the Order, are vicariously liable
for the actings of the members of their Order while furthering the cause of the
Order at the school. The Order had an
interest in the education of boys and supplied most of the teachers to the
school. The Order supplied the
headmaster to the school. The headmaster
was in de facto control of the
school. The Order is believed to have
benefited financially by the association of its members with the school. The defenders, as employers of the monks and
staff at the school, are also vicariously liable for their actions while in the
course of their employment."
[122] It is appropriate to notice the first three pleas-in-law for the pursuer. Pleas 1 and 2 have been the subject of a
partial determination by the Lord Ordinary, who has repelled those pleas, to
the extent that they refer to breaches of statutory duty. Furthermore, plea-in-law 2 has been amended
to delete reference to "employees" and to substitute in place of that word
"persons". It is also appropriate to
notice that the pursuer has made certain averments against the ninth to
fifteenth named defenders, who were said to be the managers of the school. It is averred in Condescendence I that they
had various responsibilities under and in terms of the 1961 Rules. It is said, among other things, that they
were responsible for the management of the school in the interests of the
welfare, development and rehabilitation of the pupils. They were responsible for the appointment,
suspension and dismissal of staff. They
required to visit the school at least once a month. It is upon these various averments and pleas-in-law
that I require to determine the relevance of the pursuer's case against the
first to eighth named defenders.
[123] During the course of the debate before us, as I have already
narrated, senior counsel for the pursuer proposed an amendment to the pursuer's
averments to be made in Condescendence I, following the reference to the letter
of 29 July 1999. The terms of the
proposed amendment have already been narrated.
We decided to refuse leave to amend in the exercise of our discretion
for several reasons. First, the proposal
to amend came at a very late stage in the course of the present
litigation. No comprehensible explanation
was proffered as to why the proposal was first being made at that stage. In particular, no explanation was given as to
why it could not have been made long ago.
Secondly, the averment proposed was itself so uncertain in meaning,
against the background of the statutory arrangements under which St. Ninian's
Approved School had been operated, that we considered it itself to be
objectionable for lack of specification.
Thirdly, it was indicated to us that, if leave to amend were granted,
the proposed amendment would require to be answered, which would have involved
the discharge of the diet of reclaiming motion.
[124] I note that in paragraph [93] of her Opinion, the Lord Ordinary
concluded that the pursuer's averments were insufficient to support a case of
vicarious liability on the part of the Order, based on an employer-employee
relationship. That part of her decision
was not challenged by the pursuer and, accordingly, vicarious liability on that
basis need not be further considered here.
While the pursuer's plea-in-law 1 appears to suggest that a case is
being made directly against the first to eighth named defenders, there do not
appear to be any averments to support such a case. It is not clear that such a case was argued
before the Lord Ordinary and it certainly was not argued before us. What is involved in plea-in-law 2 is a case
of vicarious liability based upon the alleged fault of "persons for whom the
defenders are responsible". Plea-in-law
3 also appears to involve a proposition that a form of vicarious liability
exists in respect of assaults committed by members of the Order "while carrying
out the purpose of the Order as condescended upon". Having considered the terms of these pleas and
examined the averments made on behalf of the pursuer relating to the first to
eighth named defenders, I find myself unable to identify any material in those
averments which could, on any view, give rise to either direct liability, as
contended for in plea-in-law 1, or vicarious liability, as contended for in
pleas-in-law 2 and 3, on the part of those defenders. Since I have been unable, on the basis of the
pursuer's averments, to identify any legal basis upon which he could succeed
against the first to eighth named defenders, his case against them, in my
opinion, is bound to fail. It must
therefore be regarded as irrelevant. I
have reached this conclusion without any regard to the averments made on behalf
of the pursuer against the ninth to fifteenth named defenders. However, it is worth observing that there is
an obvious conflict between the averments made in respect of the first to
eighth named defenders and the other averments to which I refer. The factual averments made against these two
sets of defenders are in several respects, mutually inconsistent as regards
responsibility for the running of St. Ninian's School..
[125] It is also evident from averments made on behalf of the pursuer,
particularly in Condescendence VII, that he alleges liability on the part of
the first to eighth named defenders in respect of the fault of persons other
than members of the Order. The reference
to "other staff" in that Condescendence can only be so viewed. I am at a loss to understand how any such
liability could exist. There are
certainly no averments to suggest an answer to that problem.
[126] Furthermore, it appears to me that, in endeavouring to frame a
case against the first to eighth named defenders, the pursuer's advisers have singularly
failed to address the obvious problems created by the legislative provisions
described above, relating to the managers of approved schools and of St.
Ninian's Approved School in particular.
Standing those detailed provisions, it is plain that responsibility for
the management of the school lay with those who occupied the office of managers. They were the employers both of the staff at
the school and of the headmaster at the school, who was responsible to
them. While it may be that the first to
eighth named defenders assisted the managers by recommending to them persons
who they considered would be suitable members of the staff of the school, it is
impossible to understand how their involvement could have lawfully extended
beyond that. No case is made against
them in regard to that function of recommendation. Furthermore, the statutory arrangements to
which I have referred plainly involved the funding of the school being derived
from the Scottish Education Department and local education authorities
responsible for individual pupils in the school. That funding must necessarily have been paid
to the managers of the school. However,
the pursuer's averments do not begin to take account of these arrangements,
though established by law.
[127] The Lord Ordinary has identified a basis upon which she
considered that a case relevant for inquiry had been stated against the first
to eighth named defenders. She describes
that as a case of vicarious liability based on agency. In paragraph [94] of her Opinion she explains
this part of her decision, stating that the Order
"agreed to
provide, teaching, care and supervision services for the children at St.
Ninian's. The Order delegated those
functions to certain of its members. ... In carrying out their tasks, Brothers
Benedict and Thadius were in my view acting as agents for their Order,
rendering that Order liable for their acts carried out in the course of their
agency."
In view of that conclusion, it is
now appropriate to examine the basis for it.
[128] In the first place, there are no averments anywhere in the pursuer's
pleadings of a case of vicarious liability based on agency. If the pursuer intended to make such a case,
the requirements of fair notice inherent in the Scottish system of pleading
would have required that, at least, the outline of such a case should have been
pled. It has not. For that reason alone, I find that this part
of the Lord Ordinary's decision is not soundly based.
[129] However, in my opinion, there are further insuperable problems in
the face of such a case.
"Agency is
a contract, express or implied, whereby one person, the principal, authorises
another, the agent, to act on his behalf in a legal relationship between the
principal and a third party." (The Mercantile Law of Scotland, McNeill
and Lilley, 6th edition page 69).
Having regard to that definition of
agency, which I consider to be accurate, I have insuperable difficulty in
seeing how a relationship of agency could be thought to exist in the
circumstances described in the pursuer's averments. While it might be possible that a member or
members of an unincorporated association with no separate legal persona, such as the Order is, might be
authorised to act as agent or agents on behalf of the other members of that
association for the purpose of creating a legal relationship between the
members of the association as a whole and a third party, I can discern nothing
in the pursuer's pleadings to suggest that any such relationship was ever
created between the managers of St. Ninian's School and the members of the
Order as a whole, through the acts or agency of those members of the Order who
must have been engaged by the managers as members of the staff at the
school. While there is a reference in
Condescendence VII to members of the Order "furthering the cause of the Order
at the school" I cannot interpret that as involving the creation, through the
agency of those members of the Order, of a legal relationship between the
managers of the school and members of the Order as a whole. It appears from the averments of the pursuer and
the legal statutory structure outlined above that the only purpose for which
members of the Order were present in the school, as members of its staff, was
not the creation of any legal relationship between the managers and the members
of the Order as a whole, but rather the performance of contracts of employment
between those particular members and the managers. For these reasons also, I consider that the
Lord Ordinary's conclusion concerning a case based on agency, expressed in
paragraph [93] of her Opinion, is unsound.
Further, I am of the opinion that the characterisation in paragraph [94]
of the Lord Ordinary's Opinion of Brothers Benedict and Thadius as acting as
agents for the Order in carrying out their tasks in the school ill-founded,
since it ignores the true nature of agency as described above.
[130] Arguments were advanced on behalf of the first to eighth named
defenders based upon the circumstance that the Order is a voluntary
unincorporated association. It was a
feature of these arguments that because the Order had no legal persona distinct from its members, it
could not be a principal in a relationship of agent and principal with its
members. While an unincorporated
association is neither more nor less than the sum of all of its members, who
are all principals in the common enterprise of the association, I have
difficulty in seeing why, in principle, particular identified members of such
an association could not be constituted as agents for the whole of the
membership for certain purposes. That
certainly happens in fact, in relation to clubs which are voluntary
unincorporated associations. In such a
situation, the members would each be principals.
[131] A submission was also made to us on behalf of the first to eighth
named defenders that the Lord Ordinary had erred in holding that principals are
vicariously liable for delicts of their agents on the same basis as employers
are vicariously liable for delicts committed by the employees. In that connection, reliance was placed on
the dictum of Lord President Cooper
in Mair v Wood at page 87 that
"it has
never been laid down as a general proposition that all principals (as
distinguished from employers) are liable for the negligence of their agents (as
distinguished from servants) in the execution of their mandate."
In the course of the argument,
controversy emerged as to the soundness of this view. However, since it is unnecessary for me to
reach any conclusion upon it, I would prefer to reserve my opinion.
[132] Likewise, arguments were addressed to us regarding the relevance
of Lister v Hesley Hall Limited to the circumstances of this case. In paragraphs [95] and [96] of her Opinion,
the Lord Ordinary concluded that the ratio
of Lister v Hesley Hall Limited was equally applicable to a situation where the
wrongdoer was an agent, as opposed to an employee. It is quite clear to me that, in that case
the House of Lords was considering the scope of the concept of vicarious
liability of the employer for wrongs committed by an employee. I am unaware of any authority that would
justify the application of the decision reached in that case to a situation in
which the issue was the vicarious liability of a principal for a wrong
committed by an agent. Indeed I have
difficulty in envisaging how the ratio
of the case could be relevant to a case of agency properly so called.
[133] In the whole circumstances, I am satisfied that the case sought
to be made by the pursuer against the first to eighth named defenders is
irrelevant and lacking in specification.
Accordingly, the reclaiming motion of those defenders must be allowed;
their plea-in-law two sustained and the action, so far as directed against
them, dismissed.
The pursuer's case against the eighteenth named defender
[134] This part of the pursuer's case is formulated in Condescendence
X. Certain parts of that Condescendence
have been excluded from probation by the Lord Ordinary, specified in paragraph
[140] of her Opinion. No challenge was
mounted by the pursuer to that part of her decision. The averments of fact upon which that
Condescendence would seem to be based are set out in Condescendence VI; once again a particular averment in that
Condescendence has been excluded from probation by the Lord Ordinary and her
decision in that regard has not been challenged. The averments of duty remaining as part of
the pursuer's case are limited in scope.
At page 58D to E it is said that
"It was
their duty to take reasonable care for the safety and welfare of children in
approved schools such as the pursuer.
They were under a non-delegable
duty to children in custody, who had been deprived of their liberty and removed
from the care of their parents, to see that those children were not
ill-treated, abused, harmed or injured and to see that they were kept safe."
The other averment of duty made
against the eighteenth named defender is to be found at page 61C to D of the
reclaiming print. It is there said that
(the Scottish Education Department)
"had a duty
to take reasonable care to remove boys such as the pursuer from said School
once it had come to the Department's notice that said boys were being regularly
and routinely assaulted."
An averment in almost exactly
similar terms appears also at page 62B of the reclaiming print.
[135] In considering the relevance in law of the averments of fault
made against the eighteenth named defender, it is necessary to have regard to
the criteria by which such matters are now to be judged. In my opinion, these are to be found in Caparo Industries plc v Dickman and Others. It is perhaps sufficient to quote from that
case two passages. First, at page 617 to
618 Lord Bridge of Harwich said this:
"But since
the Anns case a series of decisions
of the Privy Council and of your Lordship's House, notably in judgments and
speeches delivered by Lord Keith of Kinkel, have emphasised the inability of
any single general principle to provide a practical test which can be applied
to every situation to determine whether a duty of care is owed and, if so, what
is its scope ... What emerges is that, in addition to the foreseeability of
damage, necessary ingredients in any situation giving rise to a duty of care
are that there should exist between the party owing the duty and the party to
whom it is owed a relationship characterised by the law as one of 'proximity'
or 'neighbourhood' and that the situation should be one in which the court
considers it fair, just and reasonable that the law should impose a duty of a
given scope upon the one party for the benefit of the other. But it is implicit in the passages referred
to that the concepts of proximity and fairness embodied in these additional
ingredients are not susceptible of any such precise definition as would be
necessary to give them utility as practical test, but amount in effect to
little more than convenient labels to attach to the features of different
specific situations which, on a detailed examination of all the circumstances,
the law recognises pragmatically as giving rise to a duty of care of a given
scope."
Second, at page 633, Lord Oliver of
Aylmerton put the matter in this way:
"Thus the
postulate of a simple duty to avoid any harm that is, with hindsight,
reasonably capable of being foreseen becomes untenable without the imposition
of some intelligible limits to keep the law of negligence within the bounds of
common sense and practicality. Those
limits have been found by the requirement of what has been called a
'relationship of proximity' between the plaintiff and the defendant and by the
imposition of a further requirement that the attachment of liability for harm
which has occurred be 'just and reasonable'.
But although the cases in which the courts have imposed or withheld
liability are capable of an approximate categorisation, one looks in vain for
some common denominator by which the existence of the essential relationship
can be tested. Indeed it is difficult to
resist a conclusion that what had been treated as three separate requirements
are, at least in most cases, in fact merely facets of the same thing, for in
some cases the degree of foreseeability is such that it is from that alone that
the requisite proximity can be deduced, whilst in others the absence of that
essential relationship can most rationally be attributed simply to the court's
view that it would not be fair and reasonable to hold the defendant
responsible. 'Proximity' is, no doubt, a
convenient expression so long as it is realised that it is no more than a label
which embraces not a definable concept but merely a description of circumstances
from which, pragmatically, the courts conclude that a duty of care exists."
[136] In Gibson v Orr 1999 SC 420, Lord Hamilton, as he
then was, considered the issue of the application of the criteria just quoted
in Scotland. He observed, at
page 430D that the tripartite test had on a number of occasions been
adopted and applied without challenge in Scotland. He went on to hold that that test now fell to
be applied in Scotland "in
personal injury actions based on a duty of care as well as in other actions of
damages so based." He stated that he
could discern
"no logical
justification in modern circumstances and as the law has developed for applying
a different test for the existence of a duty of care in respect of personal
injury from that applicable to physical damage to property or to economic
loss". (see page 431A to E).
[137] I feel bound to observe that we were afforded little assistance
by counsel for the pursuer during the course of the debate before us as regards
the application of the tripartite test to the circumstances of this case. Accordingly, one must endeavour to discern
from the pursuer's pleadings some basis upon which it might be satisfied, as his
case implies that it is. Looking
particularly at the averments made in Condescendence X, it would appear that
the pursuer's case against the eighteenth named defender focuses upon the
position of the Scottish Education Department as an authority responsible for the
general regulation and supervision of the approved school system. Plainly, under section 83(1) and (2) of the
1937 Act, the Department had the power of approving and withdrawing the
certificate of approval of an approved school.
Withdrawal of the certificate was authorised under section 83(2) if the
Department were "dissatisfied with the condition or management of an approved
school ... ". Furthermore, the Scottish
Education Department plainly had powers to appoint inspectors of approved
schools. Indeed, under clause 6(2) of
Schedule 2 to the 1937 Act the Department had a duty, through their inspectors,
to
"review the
progress made by persons detained in approved schools with a view to ensuring
that they shall be placed out on licence as soon as they are fit to be so
placed out."
In addition, under clause 9 of the
same Schedule, the Department had power to order
"a person
under the care of the managers of an approved school to be discharged, or to be
transferred to the care of the managers of another school ... ".
I consider that it is also
important to recognise that under section 21 of the 1963 Act, the Secretary of
State had the power to give to the managers of an approved school certain
directions. That was authorised where it
appeared to the Secretary of State
"that the
provision made in any approved school with regard to any matter relating to the
premises or equipment of the school, the number or grades of the staff employed
in the school, or the education, training or welfare of persons under the care
of the managers is inadequate or unsuitable".
The directions were such as the
Secretary of State thought "necessary for securing that proper provision is
made with respect thereto".
[138] I conclude from these provisions, in particular, that the
Scottish Education Department had certain statutory responsibilities to review
the progress, or lack of it, of persons detained in approved schools and, if
appropriate, to give directions for the improvement of, among other things, the
training or welfare of persons under the care of the managers. Their powers were, however, essentially
supervisory and clearly involved the exercise of discretion. In this connection, during the course of the
debate before us, the eighteenth named defender relied upon X v Bedfordshire
County Council. Having considered
the facts of the various cases that were the subject of decision there, I am
not persuaded that they are sufficiently similar to the facts of this case as
to make that decision of direct assistance.
However, as will be seen, some important principles considered in the
case are plainly applicable to this case as to many others. Nor do I find the circumstances of K.L.B. and Others v The Province of British Columbia of immediate assistance in
considering the position of the eighteenth named defender under the terms of
the legislation to which we have referred.
Further, Napier v The Scottish Ministers is of no assistance
in the context of this case. It was
concerned with the position of prisoners in a prison, for which the Scottish
Ministers had direct responsibility. At
paragraph 92 of Lord Bonomy's Opinion, it was narrated that the respondents
accepted that they had a duty to take reasonable care for the health and safety
of prisoners, such as the petitioner. In
this case, the existence of a duty owed by the Scottish Education Department to
the pursuer is the subject of controversy.
Barratt v Enfield London Borough Council was relied upon by the pursuer. The plaintiff in that case claimed damages
for personal injury arising out of negligence by the authority in whose care he
had been placed, pursuant to a care order, when he was 10 months old. The plaintiff's claim had been struck out as
disclosing no reasonable cause of action, a course upheld by the Court of
Appeal. However, the House of Lords
allowed the appeal holding, among other things, that, in all but the clearest
cases, it was important to see on the facts proved whether what was alleged was
justiciable; that the plaintiff's case
was far from clear and, moreover, in addition the question whether it was fair,
just and reasonable to impose a duty of care was not to be decided in the
abstract, on the basis of assumed hypothetical facts, for all the acts or
omissions of a statutory authority, but on the basis of what had been
proved. The appeal was allowed. While I consider that there are certain
features of that case which resemble those of the present, it has to be
recognised that that decision was taken against the background of the English
system of pleading. I do not consider
that it can be regarded as undermining the requirement in Scottish pleading
that the claimant must state a relevant case, that is to say, a case which is
not bound to fail.
[139] The pursuer placed reliance on Costello-Roberts v The United
Kingdom. Having considered that
decision of the European Court of Human Rights, I am satisfied that it is of no
assistance in the present circumstances.
It was exclusively concerned with issues concerning the violation of
Articles 3, 8 and 13 of the European Convention on Human Rights and Fundamental
Freedoms. It was not concerned with the
existence of delictual duties. The
eighteenth named defender relied upon Quaquah
v Group 4 (Total Security) and the
Home Office. The circumstances
giving rise to that case concerned the position of persons detained in
Immigration Detention Centres and the possible responsibility of the Home
Office for their care and wellbeing. I
find that those circumstances are so far removed from those of the present
case, with a different background of legislation, that the decision is not of
assistance. A. v The Ministry of Defence
and Another featured in the debate before us. In it, the Court of Appeal held, among other
things, that although the general rule at common law was that a defendant was
liable for the negligent act of a servant committed in the course of his
employment, but not that of an independent contractor, a defendant might, in
various circumstances, exceptionally be fixed with a personal duty to exercise
reasonable care which he could not delegate, but only where the claimant suffered
injury while in an environment over which the defendant had control. I do not find the decision in that case
helpful, since the circumstances in which the pursuer here alleges that he
suffered personal injuries were not, in any reasonable sense, within the
control of the Scottish Education Department.
He was a pupil in an approved school administered and controlled by the
managers of that school. In The State of New South Wales v Lepore, the High Court of Australia was
concerned with the issue of whether a school authority had been in breach of a
non-delegable duty of care in respect of an alleged sexual assault on a pupil
by a teacher. While, in due course, I
shall have something to say about non-delegable duties of care, at this stage
in this Opinion I cannot regard the decision as of assistance in connection
with the issues which are currently being addressed, on account of the markedly
different situation in which that claim arose, as compared with the present
litigation.
[140] Following upon this review of the foregoing authorities and the features
of this case, it is appropriate now to return to the application of the
tripartite test explained in Caparo
Industries plc v Dickman. An important aspect of that test is, of
course, the foreseeability of damage.
The only duty of care averred here in particular terms is that to which
we have referred, being one
"to take
reasonable care to remove boys such as the pursuer from said school once it had
come to the Department's notice that said boys were being regularly and
routinely assaulted."
That
requires attention to be focused on the pursuer's averments regarding the state
of knowledge of the Department. The
question must be whether any of the averments made by the pursuer, if proved,
could demonstrate that it had come to the Department's notice that boys at St.
Ninian's School were being "regularly and routinely assaulted." The conclusion I have reached is that the
averments made on behalf of the pursuer in Condescendence VI, if established,
would not give rise to actual awareness on the part of the Department that boys
were regularly and routinely being assaulted.
In that connection, averments that complaints or allegations were made
are simply not sufficient. In these
circumstances, I hold that the first ingredient of a relevant case against the
eighteenth named defender is not present.
Perhaps more importantly and in any event, looking at the other
ingredients of the tripartite test, proximity and the requirement that it would
be fair, just and reasonable that the law should impose the duty contended for
on the Scottish Education Department, I am not satisfied that those
requirements have been met either in the circumstances of this case. The position of the Department was
essentially that of a supervising agency or regulatory agency in the context of
the approved school system. As such, it
clearly had a discretion as to the extent to which and the methods by which, it
performed its duties. As was observed by
Lord Browne-Wilkinson in X (Minors) v
Bedfordshire County Council at pages
731-732:
"Although
the question is one of statutory construction and therefore each case turns on
the provisions of the relevant statute, it is significant that your Lordships
were not referred to any case where it had been held that statutory provisions
establishing a regulatory system or a scheme of social welfare for the benefit
of the public at large had been held to give rise to a private right of action
for damages for breach of statutory duty.
Although regulatory or welfare legislation affecting a particular area
of activity does in fact provide protection to those individuals particularly
affected by that activity, the legislation is not to be treated as being for
those individuals but for the benefit of society in general."
[141] Of course, as was observed by Lord Browne-Wilkinson at pages 735
to 736 in the same case, a common law duty of care may arise in the performance
of statutory functions:
"But a
broad distinction has to be drawn between:
(a) cases in which it is alleged that the authority owes a duty of care
in the manner in which it exercises a statutory discretion; (b) cases in which a duty of care is alleged
to arise from the manner in which the statutory duty has been implemented in
practice ... The distinction is between (a) taking care in exercising a statutory
discretion whether or not to do an act and (b) having decided to do that act,
taking care in the manner in which you do it ... It is clear both in principle
and from the decided cases that the local authority cannot be liable in damages
for doing that which Parliament has authorised.
Therefore, if the decisions complained of fall within the ambit of such
statutory discretion they cannot be actionable at common law. However, if the decision complained of is so
unreasonable that it falls outside the ambit of the discretion conferred upon
the local authority, there is no a priori
reason for excluding all common law liability."
[142] Looking to these principles, there is no part of the pursuer's
case in which an attempt is made, as against the eighteenth named defender, to
aver that the Scottish Education Department made any decision so unreasonable
as to fall outside a statutory discretion.
As regards the kind of situation described in category (b) by Lord
Browne-Wilkinson, no case is made against that Department alleging a lack of
reasonable care in the practical implementation of a statutory duty. In any event, the responsibility for the
practical implementation of statutory duties in relation to St. Ninian's School
lay, not with the Scottish Education Department, but with the managers of the
school, who were creatures of statute. It
would have been entirely appropriate that they should have had imposed upon
them certain common law duties of care in relation to pupils in the school, but
issues relating to their position are academic, in a situation in which they
have been released from the present action.
[143] I turn now to consider the issue of possible vicarious liability
of the Scottish Education Department for the fault of others. In this connection it is to be noted that at
page 11B to C of the reclaiming print the pursuer averred that: "Some of the staff who worked at the school
were employed by the eighteenth defender's statutory predecessors." However, as appears from paragraph [140] of
her Opinion, the Lord Ordinary has excluded that averment from probation, which
part of her decision has not been challenged on behalf of the pursuer. Thus, whatever else might be thought to be
the basis of any vicarious liability on the part of the eighteenth named
defender, it could not be vicarious liability for the fault of an
employee. Furthermore, Rule 10 of the
1961 Rules very plainly indicates that the managers of the school were
employers of staff required to work there.
Rule 10(1) refers to "staff to be employed by them". In addition, Rule 10(2) refers to the
managers being responsible for "the appointment and, subject to the provisions
of section 81 of the Education (Scotland) Act 1946,
suspension and dismissal of staff." The pursuer
has made no averments to show that the arrangements for the employment of staff
enshrined in the 1961 Rules were not adhered to at St. Ninian's. Even if he had, it would have been difficult
to accept that the position of the managers, as described in legal enactment,
could have been departed from voluntarily.
[144] The Lord Ordinary deals with the matter of vicarious liability in
paragraphs [107] to [111] of her Opinion.
In paragraph [107] she states that the inference from the pursuer's
pleadings in Condescendence I is that the Scottish Education Department paid a
subvention to the Mother House of the de La Salle Order in Oxford in order to
obtain the teaching and curatorial services of monks. In the first place, I can see no proper basis
in the pursuer's averments or in the statutory structure within which approved
schools operated to justify that conclusion.
Albeit that the pursuer makes averments of what occurred in England as regards
the payment of salaries of monks who taught in similar schools and that in England the Order
received a lump sum per child from the Home Office, these averments cannot give
rise to the conclusion that similar arrangements existed in Scotland. As I have already made clear, in terms of
section 94 of the 1937 Act, certain education authorities were obliged to pay prescribed
contributions to the expenses of the managers of an approved school in respect
of a relevant resident. More
particularly, under section 107 of the 1937 Act there were to be paid out of
money provided by Parliament
"Such sums
on such conditions as the Secretary of State with the approval of the Treasury
may recommend towards -
(i) the expenses of the managers of an
approved school;
(ii) the expenses of an education authority
in respect of children and young
persons
committed to their care.;".
I am unaware of any other basis
upon which the Scottish Education Department might lawfully have made payments
in respect of an approved school, and, in particular, to a third party, such as
the Order. In paragraph [111] of her
Opinion the Lord Ordinary says:
"Accordingly,
the role played by the SED in the selection and remuneration of school staff
cannot at this stage be dismissed as insignificant. If the SED were to be regarded as being in
some way involved in the employment of a monk such as Brother Benedict, then
the SED may be liable for the abuse perpetrated by that monk: cf. Lister,
cit. sup. In my view, the question whether the SED
could be viewed as involved in the employment of monks such as Brother Benedict
is one of mixed fact and law which would best be answered after evidence has
been led."
I regret that I can find no basis
in the averments of the pursuer to justify the view that the Scottish Education
Department could be regarded as being "in some way involved in the employment"
of staff at St. Ninian's School. In any
event, that view is apparently inconsistent with the Lord Ordinary's exclusion
from probation of actual employment. The
payments which the Department were authorised to make under section 107 of the
1937 Act certainly could not give rise to any relationship of employment. The payments were to be made to the managers,
not to the staff, or the Order. In my
view, the Lord Ordinary has strayed into the field of mere conjecture in this
paragraph. Accordingly, I regard her
decision to allow inquiry in that regard as unsound. Furthermore, her reference to Lister v Hesley Hall Limited appears to me to be beside the point. As I have already indicated, that case was
concerned with the extent of the scope of the employment of an employee and
whether it embraced unlawful conduct.
However, in this context I am not concerned with that matter; I am
concerned as to whether there is any basis for a conclusion that a relationship
of employment existed.
[145] I turn next to the issue of non-delegable duty of care, a topic
with which the Lord Ordinary deals in paragraphs [112] to [119] of her
Opinion. I have to say at the outset
that I have had difficulty in understanding why the Lord Ordinary has treated
the issue of non-delegable duty of care separately from the issue of direct
liability. It appears to me that, in
considering whether any duty of care existed, owed by the Scottish Education
Department to the pursuer, delegable or non-delegable, the same criteria,
outlined in Caparo Industries plc v Dickman, must be applied. Yet the Lord Ordinary has not approached
either the issue of direct liability, or that of a non-delegable duty of care
in that way. It may be, however, that
her approach to these matters is a reflection of the arguments that were, or
more particularly, were not addressed to her.
[146] The existence of non-delegable duties has been a feature of Scots
law for many years. In this connection
we refer to English v Wilson's & Clyde Coal Company 1937
S.C. (H.L.) 46. Thus there is nothing
novel about such duties. In paragraph
[113] of her Opinion the Lord Ordinary says:
"I have
ultimately concluded that the reasoning of the House of Lords in Lister v Hesley Hall Limited [2002] 1 AC 215, the developing jurisprudence
relating to the concept of a non-delegable duty of care in certain contexts,
and underlying policy reasons, make it necessary for the courts to recognise
the existence of a common law non-delegable duty of care on the part of a government
body such as that represented by the eighteenth defender in respect of children
allocated by the government to government-created residential schools such as
St. Ninian's. Such a non-delegable duty
of care may be particularly relevant where it is not possible to establish more
traditional liability such as direct or vicarious liability. In the context of a non-delegable duty of
care liability may arise even where there has been no fault on the part of the
government body."
A number of points must be made in
relation to that reasoning. The first is
that, in my view, Lister v Hesley Hall Limited is of the nature
that I have already described and has no part to play in this aspect of the
case. Further, the Lord Ordinary's
reference to "children allocated by the government to government-created
residential schools such as St. Ninian's" appears to me to be based upon a
serious legal and factual misunderstanding.
Children were not "allocated" to approved schools "by the government",
but rather principally by reason of court decisions making approved school
orders. Beyond that, it is plainly
inaccurate to refer to St. Ninian's as a "government-created residential
school", since the government played no part in the establishment of the
school. The Scottish Education
Department plainly issued a certificate of approval to the school, but that can
only be seen as an exercise of the discretion conferred upon the Department by
section 83 of the 1937 Act. Finally, in
this connection, I have difficulty in understanding exactly what the Lord
Ordinary is saying in the last sentence of paragraph [113]. The distinction which she draws, in this
context, between direct liability and a non-delegable duty of care eludes me. As I have already said, the same criteria
must be applied in a consideration of whether any duty exists, whether that
duty is to be seen as delegable or non-delegable.
[147] In paragraph [118] of her Opinion the Lord Ordinary characterises
the statutory structure under which approved schools operated as, in some way
involving delegation "to others such as unpaid members of the community
performing what might be seen as civic duties", presumably a reference to the
managers of an approved school. I cannot
agree with this characterisation. The
system of approval of approved schools reflected in the terms of sections 83
and 84 of the 1937 Act involved the managers of any school intended to be used
as such applying to the Scottish Education Department for approval, or the
provision of an approved school by an education authority, or a combination of
education authorities. There was no
question of the Scottish Education Department delegating any existing responsibility
to anyone. Parliament created the
provisions to which I have referred, with the intention that the schools to be
approved should be established by others than central government, but recognising
that central government had a part to play in the approval and general
supervision of the establishments so created.
Reading the terms of paragraph [118] of the Lord Ordinary's Opinion, I
am driven to conclude that the premise from which her consideration started was
that central government ought to be liable for the consequences of abuse, such
as that which is said to have occurred here.
However, that is plainly to beg the question of whether such liability
can be recognised by reference to accepted legal principles. Accordingly, I am of the view that the Lord
Ordinary's decision to allow inquiry into this aspect of the case is also unsound.
[148] Having considered these various possible bases of liability on
the part of the eighteenth named defender, I conclude that the pursuer has not
stated a relevant case against this defender.
Accordingly, his action against this defender falls to be dismissed.
Limitation
The pursuer's averments
[149] The starting point for any consideration of this part of the case
must be an examination of the averments made by the pursuer pertinent to the
issue arising. As regards the particular
injuries said to have been inflicted upon him, the averments concerned are to
be found in Condescendences III and IV.
Prominently these averments narrate a series of many assaults, beginning
with one by Brother Thadius committed on the pursuer's arrival at the
school. Thereafter, reference is made to
the sixteenth named defender forcing the pursuer to have a cold shower, using a
scrubbing brush to clean him and handling his penis. He was told to stay in the shower, when the lights
were switched off. The pursuer was left
naked in the shower in the dark for several hours. On another occasion, the pursuer was forced
to eat a pudding, with the sixteenth named defender holding him by the hair and
forcing a spoon into his mouth, in consequence of which the pursuer
vomited. He was also forced to eat the
pudding mixed with his own bodily fluids.
On a number of occasions the sixteenth named defender hit the pursuer
and other boys on the back of their thighs with rubber laces. The consequences were such that the pursuer
was unable to sit down following these assaults. This defender also assaulted the pursuer and
other boys by sitting on or kneeling on their stomachs with his whole weight,
as a result of which he was unable to breathe.
The pursuer also avers that: "The
sixteenth defender regularly punched and kicked the pursuer on all parts of his
body." He goes on to aver that Brother
Thadius hit boys, including himself, under the chin when they were speaking,
causing them to bite their tongues or cheeks.
The pursuer also avers that boys, including himself, were assaulted on a
daily basis, being punched, kicked and hit with implements including sticks,
rulers and wooden ladles. He claims that
the treatment he describes rendered him very afraid, with the result that from
time to time he was incontinent. It is quite
obvious that the assaults described in the averments which I have just
summarised were of a serious nature.
Indeed some of them have been the basis of the High Court prosecution
against the sixteenth named defender.
[150] Averments which are pertinent to the issue of limitation are to
be found in Condescendences XI and XII.
In the former, the pursuer avers that he was injured by the assaults he
sustained. He suffered trauma and
damage. He then continues:
"The
treatment endured has affected the pursuer's life. The pursuer felt powerless and
frustrated. The pursuer reacted to the
assaults by determining that from then on he would retaliate against
aggressors. The pursuer became involved
in trouble with the police. He suffered
regular periods of incarceration for violence.
He became violent because of his anger at the abuse he suffered from
Brother Benedict in particular. The
pursuer was incarcerated on many occasions until about 1990 ... The pursuer has
suffered psychologically. He was
depressed as a 12 year old. He formally
suppressed memories, but now the memories are intruding in his thoughts."
He goes on to aver that he has
suffered in particular since about 1999 when he read an article about the abuse
of another boy in the same school.
[151] In Condescendence XII, the pursuer in his averments endeavours to
deal with the problems created for him by section 17 of the 1973 Act. It is necessary to observe that, in many
respects, the averments made in the Condescendences which I have summarised and
in Condescendence XII itself are vague, lacking in specification and, in
certain respects, contradictory. In
Condescendence XII the pursuer avers that he "suppressed memories". He "remembered many of the occasions of abuse
at the school but put them to the back of his mind." He also believes that other incidents of
abuse occurred which he is unable to recall.
He avers that he did not begin to require medical attention in relation
to the intrusive memories until about 1999.
The present action was raised in May 2000, within the triennium set out in the Prescription
and Limitation (Scotland) Act 1973,
section 17. He was diagnosed as
suffering from severe depression and chronic PTSD (Post Traumatic Stress
Disorder) which was completely disabling in May 2002. Section 17(2) (three year limitation) did not
apply in the three year period after the pursuer attained his majority. It did not apply until 1999 when the pursuer
began to require medical attention in relation to the intrusive memories and
when he contacted solicitors following the publication of a newspaper
article. The pursuer did not become
aware, nor was it reasonably practicable for him in all the circumstances to
become aware of the facts (i) that the injuries were sufficiently serious to
justify his bringing an action of damages and (ii) that the injuries were
attributable in whole or in part to an act or omission until 1999. There follow certain averments introduced by
amendment to the pursuer's pleadings at the commencement of the hearing. These averments relate to the alleged
consequences of institutional childhood abuse, which, it is claimed,
"has the
effect of silencing victims, including the pursuer ... the vast majority of abuse
sufferers, including the pursuer, suppress memories of the abuse and get on
with their lives ... Such silencing and suppression meant that they, including
the pursuer, were not aware that their injuries were sufficiently serious to justify
them bringing an action of damages until well into adulthood. As averred the pursuer was not aware until
1999 in relation to physical abuse and until 2002 in relation to severe
depression and chronic PTSD."
In addition, there are certain
averments in which the pursuer seeks to invoke the provisions of section 19A
1973 Act in support of his plea that it would be equitable to allow the present
action to be brought, even though time barred.
In the course of these averments the appellant states that he had told
his mother of the regime at the school, but she took no action. He continues:
"The
pursuer suppressed memories. He
remembered many of the occasions of abuse at the School but put them to the
back of his mind. He put the memories to
the back of his mind as a way of coping with what had happened to him ... In
about May 1999 the pursuer read in the media that Christopher Ferns had alleged
abuse during his time in the school. The
media showed interest in the story. The
article unlocked memories which the pursuer had suppressed. He required medical attention in relation to
the intrusive memories for the first time in 1999. He was diagnosed as suffering from severe
depression and chronic PTSD which is completely disabling in May 2002."
[152] In the same Condescendence the pursuer avers that the sixteenth
named defender was tried in the High Court of Justiciary at Edinburgh in June
2003 on various charges, one of which related to assaults by him on the pursuer. He claims that any delay in taking legal
action was attributable to his experiences at the hands of those said to be
responsible in the present action.
[153] In Answer 12 for the eighteenth named defender, that defender has
made averments about an assault and breach of the peace committed by the pursuer
in May 1996, in respect of which he was convicted in Alloa Sheriff Court
on or about 2 September 1996. These
averments continue:
"Following
this incident the pursuer was referred to the Community Mental Health Team at Clackmannan County Hospital on or
about 13 June, 1996. It was this referral that led to the
diagnosis that the pursuer was suffering from depression and an emotionally
unstable personality disorder ... He was able to discuss his personal history
with the mental health team. A report by
a team member to the pursuer's GP in August 1996 records that his childhood was
extremely violent. It records that he
attended the School, though that report does not contain any specific reference
to abuse at the School. The Social
Enquiry Report for an appearance at Alloa
Sheriff Court on 30 September, 1996 refers to the fact that the
pursuer and his brother attended the School (there referred to as
Gartmore): it continues: 'Mr. (McE) [i.e. the pursuer] described the
bizarre and awesome punishment regime which he remembers as having been in
force at the time. Mr. (McE) remained
there for three years'".
[154] The pursuer responds to these averments in Condescendence
XII. He admits that a Social Enquiry
Report was prepared at the time in question and that it contained the words
quoted, subject to his succeeding explanation.
His explanation is in these terms:
"Explained
and averred that the pursuer was required to attend for a Social Enquiry Report
in respect of the offence committed in 1996.
He was described as 'clearly very tense during interview'. He was noted still to be suffering from the
recent death of his mother. The words
'bizarre and awesome punishment regime' are the words of the Social Worker and
not the pursuer. The pursuer told the
Social Worker of systematic abuse but the Social Worker was not interested."
The statutory
provisions
[155] In view of the
arguments which were addressed to us, it is important to examine the particular
statutory provisions which bear upon the issue being considered. These are, of course, section 17 of the 1973
Act, as substituted by section 2 of the Prescription and Limitation (Scotland) Act 1984. Section 17 is in these terms:
"17(1) This section applies to an action of damages where the damages
claimed consist of or include damages in respect of personal injuries, being an
action (other than an action to which section 18 of this Act applies) brought
by the person who sustained the injuries or any other person.
(2) Subject
to subsection (3) below and section 19A of this Act, no action to which this
section applies shall be brought unless it is commenced within a period of
three years after - (a) the date on which the injuries were sustained or, where
the act or omission to which the injuries were attributable was a continuing
one, that date or the date on which the act or omission ceased, whichever is
the later; or (b) the date (if later
than any date mentioned in paragraph (a) above) on which the pursuer in the
action became, or on which in the opinion of the court, it would have been
reasonably practicable for him in all the circumstances to become, aware of all
the following facts -
(i) that
the injuries in question were sufficiently serious to justify his
bringing an action of damages on the
assumption that the person against whom the action was brought did not dispute
liability and was able to satisfy decree;
(ii) that
the injuries were attributable in whole or in part to an act or
omission; and
(iii) that
the defender was a person to whose act or omission the injuries
were attributable in whole or in part
or the employer or principal of such a person.
(3) In
the computation of the period specified in subsection (2) above there shall be
disregarded any time during which the person who sustained the injuries was
under legal disability by reason of non-age or unsoundness of mind."
[156] In the debate
before us there was considerable discussion of cases decided under the
statutory provisions which operate in England as regards limitation in relation
to actions of damages for negligence. It
is appropriate to note their terms. These
are sections 11 and 14 of the Limitation Act 1980. They provide, so far as material:
"11(1) This section applies to any action for damage
for negligence, nuisance or breach of duty (whether the duty exists by virtue
of a contract or of provision made by or under a statute or independently of
any contract or any such provision) where the damages claimed by the plaintiff
for the negligence, nuisance or breach of duty consist of or include damages in
respect of personal injuries to the plaintiff or any other person ...
(3) An
action to which this section applies shall not be brought after the expiration
of the period applicable in accordance with subsection (4) ... below.
(4) ...
the period applicable is three years from -
(a) the
date on which the cause of action accrued;
or
(b) the
date of knowledge (if later) of the person injured.
...
14(1)
... In section 11 ... of this Act references to a person's date of knowledge
are reference to the date on which he first had knowledge of the following
facts
(a) that
the injury in question was significant;
and
(b) that
the injury was attributable in whole or in part to the act or
omission which is alleged to
constitute negligence, nuisance or breach of duty; and
(c) the
identity of the defendant ... and knowledge that any acts or
omissions did or did not, as a matter
of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For
the purposes of this section an injury is significant if the person whose date
of knowledge is in question would reasonably have considered it sufficiently
serious to justify his instituting proceedings for damages against a defendant
who did not dispute liability and was able to satisfy a judgment.
(3) For
the purposes of this section a person's knowledge includes knowledge which he
might reasonably have been expected to acquire -
(a) from
facts observable or ascertainable by him or
(b) from
facts ascertainable by him with the help of medical or other
appropriate expert advice which it is
reasonable for him to seek;
but a person shall not be fixed under
this subsection with knowledge of a fact ascertainable only with the help of
expert advice so long as he has taken all reasonable steps to obtain (and, where
appropriate, to act on) that advice."
[157] Consideration
of these two sets of provisions shows that there are important differences
between them. First, in section 17(2)(b)
of the 1973 Act, which provides for what I might call the alternative notional
starting date for the running of time, alternative to the actual starting dates
provided for in section 17(2)(a), Parliament has provided for a date on which
the pursuer in the action actually became aware of the statutory facts listed
in section 17(2)(b)(i), (ii) and (iii), or on which notional awareness of those
facts is to be attributed to him. The
structure of that provision is, in no way, replicated in sections 11 and 14 of
the 1980 Act. In section 14(1) there is
no provision defining a notional date of knowledge, although subsection 14(3)
provides, in effect, for notional knowledge, but in a very different way from
the provision to be found in section 17(2)(b) of the 1973 Act.
[158] Second, in
section 17(2)(b)(i), where the first of the statutory facts is defined, the
words used are that "the injuries in question were sufficiently serious to
justify his bringing an action of damages ... ", on the stated assumptions. In section 14(1) of the 1980 Act, the words
used include "the injury in question was significant". Section 14(2) defines when "an injury is
significant". It has that quality "if
the person whose date of knowledge is in question would reasonably have
considered it sufficiently serious to justify his instituting proceedings for
damages" on certain assumptions.
[159] It is, I
consider, recognised that the Scottish provisions quoted embrace an element of
subjectivity. As I would see it, that
emerges on account of two features of the legislation. First, the use of the word "him" in the opening
paragraph of section 17(2)(b), a reference to the earlier words in the same
paragraph "the pursuer in the action", means that the court, in considering the
issue of reasonable practicability, is required to take into account to some
unspecified degree, the characteristics of that person. Second, the use of the word "his" in section
17(2)(b)(i) again requires the court to contemplate whether "the injuries in
question were sufficiently serious to justify" the pursuer in the action
"bringing an action of damages" on the specified assumptions. It is a matter of very great difficulty to
discern to what extent it was contemplated by Parliament that the particular
characteristics of an individual pursuer should be taken into account. However, in this connection, in my opinion, some
guidance may be able to be derived from the provisions of section 17(3) of the
1973 Act. It requires that, in the
computation of the period specified in subsection (2), there is to be
disregarded any time during which the person who sustained the injuries was
under legal disability by reason of non-age or "unsoundness of mind". It appears to me that "unsoundness of mind"
having been made the subject of that express provision, it may be legitimate to
infer that any mental condition falling short of "unsoundness of mind" would
not be appropriate for consideration in the application of section 17(2)(b); otherwise these two provisions of the statute
would appear to conflict.
[160] Turning to the
provisions of section 14(1) and (2) of the 1980 Act, again it is apparent that
an element of subjectivity is inherent in the legislation. The use in the opening words of section 14(1)
of the word "he", a reference to the plaintiff, appears to inject subjectivity
into the determination of the "date of knowledge ... of the person injured". Furthermore, the provisions of section 14(2),
in which the words "the person whose date of knowledge is in question would
reasonably have considered it sufficiently serious to justify his instituting
proceedings ... " appears to involve conferring upon the court an important
element of discretion in the operation of the provision. Finally, when one comes to look at section
14(3) of the 1980 Act some element of subjectivity is involved.
[161] This
examination of the two sets of legislative enactments may be sufficient to show
that, as between the two jurisdictions, there are important differences as
regards how the date from which time is to run is to be identified and also as
to the extent to which the characteristics of the particular pursuer or
plaintiff in question are to be taken into account. Against that background, I am firmly of the
opinion that the use of cases decided in this area of the law in one
jurisdiction as authorities in the other is most unwise and likely to lead to
substantial confusion.
[162] In K.R. and Others v Bryn Alyn Community (Holdings) Limited and Another the Court of
Appeal was concerned with the cases of 14 claimants in a consolidated action,
who had all been in care as children in residential homes run by the first
defendant. They sought damages in
negligence against the first defendant on the basis that they had been
physically and/or sexually abused by the first defendant's employees. Issues of limitation arose. In paragraphs 40 to 42 of the judgment of the
court, delivered by Auld L.J. there are observations concerning the application
of section 14 of the 1980 Act to the circumstances of those cases. It has to be said that much of what appears
there seems to proceed upon the basis of knowledge which the court claimed to
possess concerning the behaviour of claimants of the kind involved in that case,
the origin of which appears to be obscure.
For that reason and the reasons already expressed, concerning the two
different sets of statutory provisions operating in the two jurisdictions, I am
unable to affirm that what was said in that case represents the law of
Scotland. Indeed, in reaching a
conclusion on the issues before me in this part of the case, because of the
differences between the two sets of statutory provisions, I do not think it
appropriate to rely at all on English authorities. I note that in M.P. v Sister Zoe O'Neill and
Others in paragraph [50], Lord Glennie adopted a similar view, with which I
respectfully agree.
[163] In Carnegie v The Lord Advocate, the court had to consider a case in which the
pursuer claimed to have been subjected to a regime of physical assaults and
extortion during his early years in the army prior to 21 March 1992. In May 1992 he developed psychological
injuries and in July 1992 he was discharged from the army. On 7 March 1995 a summons was signetted and
served, in which the pursuer sought damages in respect of both the physical and
psychological injuries. The court held
that the claim based on physical injury from the assaults was time-barred, but
that the psychological injuries developing in May 1992 were a separate or
distinct injury subject to a separate triennium
under section 17(2)(a) of the 1973 Act.
Accordingly, a proof before answer was allowed under deletion of the
averments relating to the alleged assaults outwith the triennium. In the course of
delivering an Opinion, in which other members of the court concurred, Lord
Johnston said in paragraph [20]:
"I take from that decision the
recognition by his Lordship that for the purposes of the 1973 Act as amended a
wholly distinct injury, albeit arising from the same delict, can be sued upon
in a separate claim and therefore can create a separate triennium not starting
from when there was original awareness of the original symptoms which are
distinguishable but rather from when at the earliest the injury basing the
action emerged to the knowledge of the pursuer."
In paragraph [18], he emphasised that for such a course to be
followed,
"the later injuries must, of course,
be distinct as, otherwise they will fall to be seen as a simple continuation or
exacerbation of those which are time-barred."
During the course of the debate before us, it was not
submitted that the decision in that case was unsound. Accordingly, I feel able to have regard to it
in examining the averments made by the pursuer in this case. It is instructive to see how that approach
was applied in a case which bore some similarity to the present action, B. v Murray. It was an action at
the instance of a former care home inmate against a religious order, alleging
ill-treatment during the pursuer's residence in the home between 1966 and
1976. The pursuer contended that she
could rely on section 17(2)(b) of the 1973 Act, as she had not become aware of
any entitlement to sue until newspaper
articles appeared in the 1990s. She had
raised the action within three years thereafter; in any event, she claimed that the
psychological injury was wholly separate and specific from the original
assaults and could found an action provided it was the only one being
raised. The court held that the
application of section 17(2)(b) was inappropriate; the pursuer had not made a distinct and
separate claim in respect of her psychological problems within three years of
them manifesting themselves. She had
made a claim which went right back to the beginning covering everything that
happened to her in respect of all of which she sought damages. Her own averments disclosed that at least at
some stage during the home period she came to realise that what was happening
to her and her fellow inmates was wrong and attributable to the defenders. In paragraph [8] of his judgment, Lord
Johnston said:
"What however is conclusive to my
mind in the present case is the pursuer does not make a distinct and separate
claim as was done in Carnegie in
respect of her psychological problems within three years of them manifesting
themselves. She makes a claim going
right back to a time in the home covering everything that happened to her and
is seeking damages in respect of those elements."
Conclusion on
limitation
[164] The starting
point of a consideration of the impact of statutory limitation on the pursuer's
case must be a recognition of the essential features of that case. So far as the first to eighth named defenders
are concerned, it is based upon the allegations of wrongful conduct by members
of the staff of St. Ninian's Approved School, for which these defenders are
said to be responsible, during the period of the pursuer's residence there,
which I have earlier narrated. He avers
in Condescendence II that he was resident there "for about three years, from
about 1963 to about 1966." So far as the
case against the eighteenth named defender is concerned it is based upon
alleged failures in duty to take certain action, which it is said, would have
prevented the pursuer being subjected to that conduct. Once again, that case must be based on
alleged failures taking place during the period of the pursuer's residence at
the school. Thus any acts or omissions
to which the appellant's injuries are said to be attributable must have ceased
"about 1966".
[165] The pursuer was
born on 15 September 1953.
Accordingly he attained majority on 15 September 1971, the date on which he reached the
age of 18 years, by then the age of majority.
In terms of sections 17(2)(a) and 17(3) of the 1973 Act, any action
arising out of the allegedly wrongful acts mentioned would have had to have
been brought by 15th September 1974, within a period of three years
after the appellant's attainment of majority.
In fact the present action was commenced on 8 May
2000, nearly
26 years after the date when, prima facie,
it became time-barred by the statutory provisions mentioned. It follows from these circumstances that, leaving
aside the provisions of section 19A of the 1973 Act for a moment, if the action
is to proceed, the pursuer requires, at this stage, to show that he has averred
circumstances relevant for inquiry which could constitute a basis for his
invocation of the provisions of section 17(2)(b) of the 1973 Act. Thus the question is whether that has been
done.
[166] Leaving aside
the complications consequent upon the decision in Carnegie v The Lord Advocate, what the pursuer
requires to have done, in order to avoid the consequences of section 17(2) of
the 1973 Act, is to aver that, at no time before 9 May 1997, was he aware,
nor would it have been reasonably practicable for him in all the circumstances
to have become aware, of all of the three statutory facts defined in section
17(2)(b) of the 1973 Act.
[167] I have, of
course, given careful consideration to the averments which the pursuer has
made, which might bear upon these matters, but I have reached the conclusion
that the required averments have not been made.
In Condescendences XI and XII in particular, the pursuer has, at some
length, described the problems which he has experienced and which he attributes
to the wrongful acts and omissions mentioned.
However, in my view, those averments fail to focus upon the necessary
matters, with which section 17(2)(b) is concerned. Furthermore, there are averments which would,
without explanation, for which there is none, appear to contradict the case
which the law requires the pursuer to make.
[168] By way of
example, I would mention the following passages from his case. In Condescendence XI the pursuer avers that
he was injured by the assaults perpetrated upon him, which treatment is said to
have
"affected the pursuer's life ... The
pursuer reacted to the assaults by determining that from then on he would
retaliate against aggressors. The
pursuer became involved in trouble with the police. He suffered regular periods of incarceration
for violence. He became violent because
of his anger at the abuse he suffered from Brother Benedict in particular. The pursuer was incarcerated on many
occasions until about 1990."
These averments, in my view, suggest that, as a consequence
of the serious assaults described by the pursuer, his life, at least until
about 1990, had been driven by his determination that he would retaliate
against aggressors. That suggests to me,
first, a continuing awareness of the fact that he had been subjected to serious
assaults and, second, a deliberate determination to adopt a particular approach
to others motivated by that awareness.
[169] In
Condescendence XII, it is averred that the pursuer "told his mother of the
regime". He avers that
"he remembered many of the occasions
of abuse at the school but put them to the back of his mind. He put the memories to the back of his mind
as a way of coping with what had happened to him."
These averments indicate to me that the pursuer was aware at
the time when the allegedly wrongful acts were committed of the facts of those
acts. Furthermore, they suggest that he
had a continuing recollection of many of the occasions of abuse, but decided to
"put them to the back of his mind".
[170] It appears to me
also that the averments made by the pursuer concerning the criminal incident in
which he was involved in May 1996 are of importance. This resulted in him being charged and
convicted of assault and breach of the peace in Alloa Sheriff Court.
In connection with that matter, it is accepted that a Social Enquiry
Report was prepared for the Sheriff Court.
It referred to the fact that the pursuer and his brother had attended
the approved school at Gartmore. The
report continued:
"Mr. (McE) [i.e. the pursuer]
described the bizarre and awesome punishment regime which he remembers as
having been in force at the time. Mr. (McE)
remained there for 3 years".
The pursuer avers that the words "bizarre and awesome
punishment regime" were the words of the social worker who prepared the report
and his own. He also avers that he told
the social worker "of systematic abuse but the social worker was not
interested." In my opinion, these
averments clearly show that, prior to the disposal of the case in Alloa Sheriff Court on 30
September 1996, the pursuer had been well aware of the serious systematic abuse which
he had suffered. I consider that the
variety, nature and extent of the physical assaults and consequent injuries
founded upon in this action are such that the pursuer cannot have been other
than aware of their gravity, with the result that he must have had actual
knowledge of all of the relevant matters long before 1999.
[171] I turn next to
consider whether the pursuer's case can be brought within the principle
acknowledged in Carnegie v The Lord Advocate. I have already made detailed reference to
that case and to its sequel B. v Murray. It should perhaps be
recorded that, in the latter case, a preliminary proof was allowed in relation
to matters relevant to the application of section 19A of the 1973 Act, but, in
that preliminary proof, the pursuer failed, as appears from B. v Murray (No. 2).
In considering the possible application of the principle in Carnegie v The Lord Advocate to the circumstances of this case it is necessary
to bear in mind the observations of Lord Johnston, in which the other judges
involved in the decision concurred, at page 813 of the Report, already
quoted. For the later injuries to avoid
being time-barred, the fate of the earlier injuries, the later injuries must be
wholly distinct from the earlier injuries, otherwise they will fall to be seen
as a simple continuation or exacerbation of those which are time-barred. With that consideration in mind, it is
necessary to see whether the pursuer, in the case which he has pled, has sought
to and succeeded in availing himself of that principle, as a matter of
relevancy. I have already quoted the
averments made by him concerning the assaults said to have been perpetrated
upon him at St. Ninian's School. These
are specified, particularly in Condescendence III. In the light of the facts averred, I am quite
unable to regard these assaults as trivial;
it is plain that they can only properly be regarded as very serious
assaults. It is only necessary to refer
to what is said about the conduct of the sixteenth named defender who "regularly
punched and kicked the pursuer on all parts of his body". Assaults of that description would frequently
attract significant sentences of imprisonment.
But there is averred, of course, a range of other seriously violent and
wholly unacceptable conduct.
[172] Having regard
to what is stated in Condescendence XI, it is quite plain that the pursuer
seeks damages upon the basis of those assaults themselves, as a result of which
he avers that he was injured. In
addition to that, he, of course, makes a prominent feature of his claim for
damages, the psychological injury which he claims to have suffered. In the same Condescendence he avers that he
was depressed as a 12 year old.
Furthermore, as appears from Condescendence XII he suffered
psychological problems from time to time thereafter. For example he accepts that he was referred
to and seen by the Community Mental Health Team in Clackmannan in June
1996. In short, no attempt has been made
in pleading the pursuer's case to invoke the principle acknowledged in Carnegie v The Lord Advocate. The pursuer's
present claim is based plainly upon both physical assaults and their
psychological consequences, which are said to have emerged as early as when the
appellant was only 12 years old. Thus,
it is impossible to discern some distinct and separate basis of claim which
emerged, as did the claim in Carnegie,
within the triennium leading up to
the raising of the action.
[173] In the debate
before us, there was much reference to suppression of memory. Indeed that aspect of the case was regarded
as sufficiently important by the pursuer's advisers that it was elaborated in
the averments added to Condescendence XII at page 71 of the reclaiming
print by the Minute of Amendment, No. 79 of process. I have already summarised the essence of
those averments and the other averments in the case which refer to that
subject. While I would acknowledge that
those averments might well be pertinent to a case made under section 19A of the
1973 Act, as furnishing an explanation as to why proceedings had not been
raised until a late stage, in relation to section 17 of the 1973 Act, the
position is quite different, in my judgment.
Before dealing with the significance or otherwise of these averments in
that context, I am bound to observe that, in any event, the pursuer's own
averments, in certain cases, contradict the contention that memory was
suppressed. In that connection I refer
again to the averment concerning the pursuer telling his mother of the regime
at the school. Furthermore, the
averments concerning what was said at the time of the preparation of the Social
Enquiry Report in 1996 contradict the suggestion that memory was
suppressed. However, leaving those
matters aside, in my opinion, there are insuperable obstacles in the face of
the pursuer in endeavouring to make this aspect of the case relevant to the
application of section 17 of the 1973 Act.
To the extent that section 17(2)(b) speaks of actual awareness, the
legal significance of that awareness, in my view, simply cannot be affected by
the suppression of memory, at least to the extent that it reflects an act of
will. Plainly, it would be absurd if a
claimant could avoid the consequences of section 17(2) by saying that he had
put to the back of his mind his actual awareness of the statutory facts.
[174] If, however, suppression
of memory were to be seen as, in some way, psychologically inevitable in the
circumstances, then it is necessary to consider what significance, if any, that
might have in the context of the provisions of section 17. As I see it, the issue has to be resolved in
the light of the provisions of section 17(2)(b) relating to what might be
called notional awareness, and also those of section 17(3). If it were the case that "it would have been
reasonably practicable for him in all the circumstances to become aware of all
the" statutory facts, then suppression of memory, in my opinion, would have no
relevance.
[175] Section 17(3)
of the 1973 Act specifically excludes from the computation of the period
specified in subsection (2) any time during which the person who sustained the
injuries "was under legal disability by reason of ... unsoundness of mind". Having regard to that provision in
particular, I consider that the running of time cannot be interrupted by a
mental condition short of unsoundness of mind.
In particular, it cannot be interrupted by the development of suppressed
or impaired memory or induced reticence.
No averments have been made by the pursuer to the effect that, at any
time during the relevant period of time he was suffering from "unsoundness of
mind". In all these circumstances I
cannot regard the particular chapter of the pursuer's averments which features
suppressed memory as relevant to his case under section 17(2) of the 1973 Act.
Conclusion
[176] In summary, for
all of the reasons given, my conclusion is that the pursuer has not averred a
relevant case against any of the remaining defenders. Accordingly, his action must be
dismissed. Had a relevant case been
stated against any defender, I would have concluded that, on the acknowledged
facts, such a case would have been barred by the provisions of section 17(2) of
the 1973 Act, there being no relevant averments made under section 17(2)(b) of
the Act to avoid that consequence.
The pursuer's case
under section 19A of the 1973 Act
[177] Section 19A(1)
of the 1973 Act provides:
"(1) Where
a person would be entitled, but for any of the provisions of sections 17, 18,
18A or 18B of this Act, to bring an action, the court may, if it seems to it
equitable to do so, allow him to bring the action notwithstanding that
provision."
Since no final judgment has been pronounced in the present
action, that subsection has effect in relation to it. It is evident from what is averred in
Condescendence XII that the pursuer seeks to avail himself of the provisions of
section 19A(1) of the 1973 Act. It is
not wholly clear to me from his somewhat unfocused averments on what particular
considerations he seeks to rely in this regard.
Furthermore, it is not wholly clear to me that the averments which the pursuer
has made provide an explanation for his failure to raise proceedings during the
whole of the relevant period. However, I
have in mind that the nature of the explanations advanced for the delay which
has occurred is such that it might be unreasonable to impose on him, in
connection with this matter, the same degree of specification as might
reasonably be expected in cases of a different type. It is also, I think, an important
consideration in this connection that the allegations of abuse relied upon here
have already resulted in a criminal conviction.
In all these circumstances, I have reached the view, with some
hesitation, that, had the pursuer averred a legally relevant case against any
of the remaining defenders, his case under section 19A of the 1973 Act could
properly have been the subject of a preliminary proof before answer. However, in the light of the view that I have
taken in relation to the relevance of the pursuer's case, that matter does not
arise.
Disposal
[178] In all the
circumstances, I move your Lordships to recall the interlocutor of the Lord
Ordinary dated 13 September 2005, sustain the second plea-in-law for the first
to eighth named defenders and the first plea-in-law for the eighteenth named
defender, and dismiss the action so far as laid against those defenders.
|
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Osborne
Lord Clarke
Lord Marnoch
|
[2007] CSIH 27
A1523/00
OPINION OF LORD CLARKE
in
RECLAIMING MOTION
in the cause
A. McE. (A.P.)
Pursuer and Respondent;
against
(FIRST) THE REVEREND JOSEPH HENDRON and OTHERS
Defenders and Reclaimers:
_______
|
Act: McEachran, Q.C., Miss
Stirling; Drummond Miller, W.S. (for
Ross Harper, Glasgow) (Pursuer and
Respondent)
Alt: Clancy, Q.C., E.G.
Mackenzie; Burness, W.S. (for McSparran
& McCormick, Glasgow) (First to Eighth Defenders and Reclaimers)
Cullen, Q.C., Smith; Solicitor
to the Scottish Executive (Eighteenth Defender and Reclaimer)
11 April 2007
[179] I am grateful to your Lordship in the chair for setting out
comprehensively the history of these proceedings, the legislative provisions
relating to the case, the relevant case law and the submissions made before the
court, and I agree with your Lordship as to how the reclaiming motion should be
disposed of.
[180] Having regard to the importance of the case I, myself, would wish
to make the following observations.
[181] I agree entirely with your Lordship in the chair, and Lord
Marnoch, that the learned Lord Ordinary seriously misdirected herself in
addressing the merits of the cases as pled against both sets of remaining
defenders. The Lord Ordinary, in my
judgment, most importantly, failed to recognise, or appreciate, the
significance of the role occupied by the managers, at the time of the conduct
complained of by the pursuer in these proceedings, in relation to the
List D school where the conduct was perpetrated. The Lord Ordinary, in my judgment, should
have had firmly in her mind that, in cases like the present, where the
defenders are not themselves the persons who perpetrated the conduct complained
of, then if liability is to be visited upon them for the injuries or other
consequences of such conduct, the pursuer, normally, will require to aver and
prove that those defenders had a degree of authority, control or responsibility
over the perpetrator in relation to the activity, which provided the context
for the injurious conduct, at the time of its perpetration. When one has regard to the statutory
functions of the managers of the school, at the relevant time, on the one hand,
and the position of the first to eighth defenders and those persons in respect
of whom the eighteenth defender is sued, on the other hand, it is abundantly
clear that the managers were charged with the authority, control and
responsibility, in respect of the day to day conduct of the teachers at the
school, in relation to the care of the pupils, whereas such authority, control and
responsibility did not lie with either the first to eighth defenders or those
represented by the eighteenth defender.
In my judgment the Lord Ordinary has singularly failed to face up to, or
recognise, that situation and its consequences and, instead, has sought to
construct possible bases of liability against both sets of these defenders
which are simply unfounded.
[182] In the case of the first to eighth defenders the Lord Ordinary
has, without there having been any case pled in that respect, sought to
construct a case of vicarious liability based on agency against them. For the reasons given by your Lordship in the
chair and Lord Marnoch, it appears to me that the factual averments upon which
any such case might conceivably have been built, do not exist and, moreover,
any such case is, in any event, inconsistent with the manager's statutory
functions and duties.
[183] As regards the position of the eighteenth defender, it appears to
me that the Lord Ordinary's approach to the matter is inconsistent with
established principles of law. It
involves, in my judgment, in the first place a misunderstanding of the case of Lister and secondly, it involves an
illegitimate degree of judicial legislation.
The proper analysis of the present case, it seems to me, should have
involved the Lord Ordinary in deciding whether or not, standing the statutory
functions that undoubtedly were rested upon those now represented by the
eighteenth defender at the material time, those statutory functions conferred a
private law cause of action against the eighteenth defender by the pursuer,
following the guidance given by the House of Lords in the case of X (Minor) v Bedfordshire CC, as to how such questions should be addressed and
answered. In that respect I consider the
dictum of Lord Browne-Wilkinson at
pages 731H-732A is entirely in point in relation to the statutory regime
which existed in the present case. His
Lordship said, at the passage just cited, the following:
"Although
the question is one of statutory construction and therefore each case turns on
the provisions in the relevant statute, it is significant that your Lordships
were not referred to any case where it had been held that statutory provisions
establishing a regulatory system or a scheme of social welfare for the benefit
of the public at large had been held to give rise to a private right of action
for damages for breach of statutory duty.
Although regulatory or welfare legislation affecting a particular area
of activity does in fact provide protection to those individuals particularly
affected by that activity, the legislation is not to be treated as being passed
for the benefit of those individuals but for the benefit of society in
general."
It seems to be that, having regard
to the statutory responsibilities placed upon those represented by the
eighteenth defender, as set out in full in the Opinion of your Lordship in the
chair, those statutory provisions were passed for the benefit of society in
general. The next question which, in my
judgment, the Lord Ordinary should then have addressed was whether or not there
could, nevertheless, co-exist with the statutory scheme, a common law duty of
care. In that respect it appears to me
that the following passages from the speech of Lord Browne-Wilkinson, in the
case just cited, are of particular relevance.
At page 735F-H his Lordship said this:
"It is
clear that a common law duty of care may arise in the performance of statutory
functions. But a broad distinction has
to be drawn between: (a) cases in
which it is alleged that the authority owes a duty of care in the manner in
which it exercises a statutory discretion;
and (b) cases in which a duty of care is alleged to arise from the
manner in which the statutory duty has been implemented in practice.
An example
of (a) in the educational field would be a decision whether or not to exercise
a statutory discretion to close a school, being a decision which necessarily
involves the exercise of a discretion.
An example of (b) would be the actual running of a school pursuant to
its statutory duties. In such latter
case a common law duty to take reasonable care for the physical safety of the
pupils will arise. The fact that the
school is being run pursuant to a statutory duty is not necessarily
incompatible with a common law duty of care arising from the proximate
relationship between a school and the pupils it has agreed to accept. The distinction is between (a) taking care in
exercising a statutory discretion whether or not to do an act and (b) having
decided to do that act, taking care in the manner in which you do it."
That passage has to be read
together with what his Lordship said later at page 762F-G:
"In my
judgment, as in the child abuse cases, the court should hesitate long before
imposing a common law duty of care in the exercise of discretionary powers or
duties conferred by Parliament for social welfare purposes. The aim of the Act of 1981 was to provide,
for the benefit of society as a whole, an administrative machinery to help one
disadvantaged section of society. The
statute provides its own detailed machinery for securing that the statutory
purpose is performed. If, despite the
complex machinery for consultation and appeals contained in the Act, the scheme
fails to provide the benefit intended, that is a matter more appropriately
remedied by way of the Ombudsman looking into the administrative failure than
by way of litigation."
Reasoning similar to that contained
in those passages, it seems to me, can be applied to the circumstances of the
present case. Moreover, applying to the
present case the standard three part framework used for deciding whether or not
a common law duty of care arises, viz,
was the damage reasonably foreseeable, was there sufficient proximity between
the claimant and the defender and whether it was fair, just and reasonable to
impose a duty of care (see Caparo
Industries plc v Dickman [1990] 2 AC 605, 617-688), it
seems the following can be said. While
it might have been foreseeable that in the absence of care the pursuer might suffer
injury (although I agree with counsel for the eighteenth defender that the
specification of foreseeability against this defender is somewhat lacking)
there was not the necessary proximity between him and those represented by the
eighteenth defender in the sense of a measure of control over and
responsibility for the potentially dangerous situation. It seems to me, in addition, that, having
regard to the statutory functions of the managers, who were responsible for the
day to day control over the activities of the teachers and the nature of the
functions rested on those whom the eighteenth defender represents, which were
clearly supervisory and discretionary in nature, it would not be just, fair and
reasonable to impose a common law duty of care upon them.
[184] The circumstances of the present case are to be clearly
distinguished from those in the case of Barrett
v Enfield London Borough Council
because in that case the children in question had been taken into the care of
the local authority, in an exercise of its powers under the relevant
legislation, and the local authority were then the custodians of the
children. That is a very different
situation from the present, where the complaint against the SED seems to be one
of omission, viz, that they should
have removed pupils, such as the pursuer, from the school or, indeed, should
have effectively closed the school.
[185] It is, in my opinion, a remarkable feature of this case that it
seems that the Lord Ordinary was unassisted by those representing the pursuers
in the kind of analysis of the law which is found in the case of X v Bedfordshire
CC. Be that as it may, the reasoning
of the Lord Ordinary, at para.118 of her Opinion, under reference to policy
considerations and the case of Lister
is, in my judgment, seriously misconceived and does involve an element of
judicial legislation. It seems to me
that in the first place, throughout her Opinion, the Lord Ordinary has sought,
without justification, to extend the scope of the decision in the case of Lister.
That case was concerned with the question as to whether an employee's
conduct was so closely connected with his employment that the employer should
be vicariously liable for that conduct - see, for example, Lord Steyn at
page 230 and Lord Clyde at page 231.
[186] The pursuer's counsel, in argument, before the court, relied
strongly on some notion that "the state" should be held responsible for the
kind of conduct forming the basis of the claim in this case. The argument, as it ran, seemed to me to
involve an notion of strict liability being imposed on Government, (cf.
the averment in Condescendence X D-E) the metes and bounds of which were
never precisely defined, and which, in any event, is far removed, in my
opinion, from the principles of common law negligence and damages for breach of
statutory duty, upon which this claim is apparently based.
[187] As regards the question of limitation raised in this case, I
gratefully adopt what Lord Marnoch has to say in relation to the application of
section 17 of the 1973 Act. I agree
with him that all the implications of the decision in the case of Carnegie might not have been clearly
thought through and, for that reason, may benefit from a reconsideration in the
future. I myself am satisfied that the
legislature, in passing the provisions of the 1973 legislation, did not have in
contemplation the kind of situation put forward in this case, involving
repressed memory and the like, and that it is inappropriate to seek to stretch
the statutory language beyond the sense it can bear, to seek to provide for
some unforeseen case. If there is seen
to be a problem in that respect, it is for the legislature to seek to solve
it: compare what was said in Stubbings and Others v United Kingdom (1996) 23 EHRR 213 at para. 54. I am also
entirely satisfied that both your Lordship in the chair and Lord Marnoch are
correct to point to the inappropriateness of seeking to interpret the Scottish
provisions by reference to the provisions of English legislation. That, in my judgment, simply invites the
addition of confusion to what is already a difficult task.
[188] Lastly, I should add that, had it been necessary, I myself would
have held that there were no sufficient facts and circumstances averred in this
case to justify an exercise of the court's discretion under section 19A of
the 1973 Act. I consider the reasoning
of the Court of Appeal, in the case of Bryn
Alyn, in relation to the application of section 33 of the Limitation
Act 1980, to a case of this kind, to be compelling and that the averments made
in the present case in support of the court exercising its discretion under
section 19A are insufficient, standing the very considerable lapse of time
and the nature of the case made. In a
case such as the present, where the defenders are being sued in respect of
criminal conduct, not of themselves, but of another person, I do not, with
respect, share your Lordships' apparent view that the existence of a criminal
conviction against that person makes such a difference as to entitle the
pursuer to a preliminary proof before answer in relation to section 19A.
|
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Osborne
Lord Clarke
Lord Marnoch
|
[2007] CSIH 27
A1523/00
OPINION OF LORD MARNOCH
in
RECLAIMING MOTION
in the cause
A. McE (A.P.)
Pursuer and Respondent;
against
(FIRST) THE REVEREND JOSEPH HENDRON and OTHERS
Defenders and Reclaimers:
_______
|
Act: McEachran, Q.C., Miss
Stirling; Drummond Miller, W.S. (for
Ross Harper, Glasgow) (Pursuer and
Respondent)
Alt: Clancy, Q.C., E.G.
Mackenzie; Burness, W.S. (for McSparran
& McCormick, Glasgow) (First to Eighth Defenders and Reclaimers)
Cullen, Q.C., Smith; Solicitor
to the Scottish Executive (Eighteenth Defender and Reclaimer)
11 April 2007
[189] In this reclaiming motion the pursuer, who was born on 15
September 1953, complains of injuries in the form of physical and psychological
abuse sustained while he was a pupil in a List D school between about 1963 and
about 1966. The physical abuse is of a
serious nature and includes deliberate assaults by punching and kicking as well
as force feeding of inter alia the
pursuer's "own bodily fluids", being made to suck on bars of carbolic soap and
being made to stand in a cold shower.
The main perpetrator of the abuse complained of was convened as the
sixteenth defender and decree in absence has passed against him. As it happens, he is currently in prison
having been found guilty of criminal charges arising, or said to arise, out of
the same alleged abuse. The action is no
longer insisted in against the ninth to fifteenth defenders inclusive or
against the seventeenth defender. The
compearing parties are thus now restricted to the pursuer, the first to seventh
defenders inclusive, who are each called as representing the Congregation or
Order of De La Salle Brothers, the eighth defender, which is the Order itself,
and the eighteenth defender who is the Lord Advocate as representing the
statutory successors to the former Secretary of State for Scotland quoad his responsibility for Scottish
education. Although the capacity of the
first to seventh defenders to represent the Congregation or Order was not in
issue, we were told that, as matter of fact, these defenders are the trustees
of the Order. They and the eighth
defender were jointly represented by Mr. Clancy, Q.C. and by Mr. E.G.
Mackenzie, Advocate, who, before the Lord Ordinary, sought to have the action
against their clients dismissed on grounds both of time-bar and
irrelevancy. They failed on both counts
and now reclaim against that adverse decision.
I shall deal, first, with the matter of time-bar.
[190] The first issue under that head is whether the action, in so far
as directed against the first to eighth defenders, is time-barred by virtue of
section 17(2) of the Prescription and Limitation (Scotland) Act 1973. As to that, there was no dispute that when
the action was raised on 8 May 2000, almost 30
years had elapsed since the pursuer's attainment of the age of majority in
1971. However, in an attempt to surmount
that difficulty and bring himself within the terms of section 17(2)(b) of the
1973 Act the pursuer makes lengthy and what appear, at times, to be somewhat
inconsistent or contradictory averments to the general effect that one of the
consequences of the abuse complained of is to make the victim ashamed so that
he either blanks out his memory in whole or in part or, at the least, becomes
reticent about disclosing the occurrence of the abuse. Even if this general line of approach were
open I am satisfied that the pleadings are seriously and essentially lacking in
specification. There are various averments
such as that, while presumably still detained, "The pursuer told his mother of
the regime" and that, in relation to the preparation of a Social Enquiry Report
in 1996, "The pursuer told the Social Worker of systematic abuse" which on the
face of them are quite inconsistent with even a partial blanking out of memory. In any event, the suppression of memory,
insofar as reflecting on act of will, would, it seems to me, be of no
consequence. Much more fundamentally,
however, I am of opinion that, if the pursuer as an adult once knew or could readily
have ascertained the relevant facts, viz. those referred to in section
17(2)(b), there is no statutory basis to be found in either section 17(3) or
any other part of the Act for the running of time to be further interrupted by
either impaired memory or induced reticence.
If that be right, then one would have to find in the pursuer's pleadings
clear averments to the effect that at no time between his attainment of
majority and the receipt of psychiatric assistance in 1999 was he aware or
would it have been reasonably practicable for him to become aware of all of the
relevant facts. I cannot find any such
averments. On the contrary, there is
every indication that in the interim he must have been well aware of the fact
that he had sustained regular and serious physical abuse, and this is not a
case where the pursuer seeks to separate out his psychological injuries as
having distinctly manifested themselves at a later date. True it is that he claims not to have
received psychiatric treatment until 1999 but that, in my opinion, is nothing
to the point where he avers, as matter of fact, that the treatment he endured
from the outset affected his whole life and personality (Closed Record p.
65C-E). In that respect the present case
is readily distinguishable from Carnegie v
Lord Advocate 2001 S.C. 802 and is
much more akin to B v Murray 2004 SLT 967.
[191] Counsel for the pursuer sought to derive some support from the
decision of the Court of Appeal in K.R.
and Others v Bryn Alyn Community Ltd.
[2003] QB 1441. That, however, was a
case in which the claims of the successful appellants were regarded as being
primarily claims in respect of psychiatric injuries and in which the decision
in their favour depended on the court taking the view that until there was
actual psychiatric intervention the appellants did not realise that their
overall injuries were sufficiently serious to justify the raising of court
proceedings. As I have already
indicated, in the present case the variety, nature and extent of the physical
assaults and injuries are such that the pursuer cannot have been other than
aware of their gravity with the result that he must have had actual knowledge
of all the relevant facts long before 1999.
This is so, even making full allowance for the "partly subjective,
partly objective" approach which it is now well recognised is necessary to a
proper construction of section 17(2) of the Scottish Act and which appears also
to be the approach of the English courts towards the corresponding English
statute. In Catholic Care (Diocese of Leeds) &
Anor. v Young [2006]
E/W/C/A/ Civ. 1534, a recent decision of the Court of Appeal to which we were
referred by Mr. McEachran, it is clear that this approach has its limitations
even in its application to the delicate matter of assessing a claimant's response
to long term psychiatric injuries arising out of childhood sexual abuse. No doubt such cases are, as was submitted,
very "fact-sensitive". But, in my view,
the same does not apply where the injuries in question are of a
straight-forward physical nature, let alone where they are of the character and
regularity averred in the present case.
I am uncertain whether, short of alleged insanity, any averments could
lay a sufficient foundation for attempting to explain away a failure to raise
proceedings in respect of such injuries over a period of almost 30 years but,
differing from the Lord Ordinary, I am in any event clear that the vague,
imprecise and, at times, contradictory averments to which I have referred are
quite insufficient for that purpose. In
saying that, I do not of course overlook the general assertion contained in the
averments added by amendment at page 71B of the Closed Record. It is, however, trite law that general
assertions cannot be taken at their face value when at odds with other, more
detailed, parts of the pursuer's pleadings or when fair notice is otherwise
lacking.
[192] Before leaving the English authorities relied on by counsel for
the pursuer it is right that I point out and emphasise that the statutory
provisions considered in England (sections 11 and 14 of the Limitation Act
1980) are markedly different from those which obtain in Scotland and, most
importantly, they are not applicable or, at least, not directly applicable to
injuries caused deliberately which apparently fall under section 2 of the
English statute.
[193] Reverting to the Scottish legislation, I have already indicated
that for purposes of applying section 17(2) of the 1973 Act the psychiatric
injuries in this case must be seen as contemporaneous with the physical
injuries and thus as forming part of a single claim. Looked at from another angle, if the pursuer
in the present case had raised an action timeously in respect of his physical
injuries there is no reason to suppose that his advisers would have done other
than include as part of the claim damages for all the psychological trauma and
its effects. In this connection,
however, I must take note of the obiter
remarks of Lord Glennie in the recent case of M v O'Neill 2006 S.L.T.
823 [2006] CSOH 93 at paras. [27] -[30].
Lord Glennie there construes the phrase "injuries in question" where it
appears in section 17(2)(b) of the 1973 Act as meaning the "injuries in issue
in the proceedings" to the effect, it would seem, that separate trienniums
might apply to different types of injury irrespective of whether or not these
different types of injury manifested themselves at the same time or over the
same period of time. In expressing that
view he drew on certain observations of Sir Thomas Bingham M.R. in Dobbie v Medway Health Authority [1994] 1 W.L.R. 1235. As to these, I simply make the point that the
Master of the Rolls' observations in that case were made in the context of a
different statutory background, as discussed above, and one in which the
wording said to be comparable is in fact expressed in the singular, "injury in
question", as opposed to the plural in the 1973 Act. For the rest, I must respectfully disagree
with Lord Glennie. In my opinion the
phrase "injuries in question" where it appears in section 17(2)(b) is a
reference back to the word "injuries" in section 17(2)(a) where it is clear
that only one date for the running of a triennium is contemplated. Accordingly, where it is evident that under
the provisions of section 17 an action in respect of certain personal injuries
should have been raised within a given triennium, that same triennium will
apply to all types of injury actually sustained at the same time or over the
same period. The speciality thought to be
present in Carnegie cit. sup. was that the psychiatric
injuries were unexpected and did not develop or emerge, even in embryo, until a
considerably later date with the result that they could not have been included
in any earlier action. If, however, this
leads to over fine distinctions being drawn (vide e.g. Hill v McAlpine 2004 S.L.T. 736) it may be that
that decision should one day be reviewed by a larger court. I further recognise that in Carnegie the approach of the court, of
which I was a member, did involve some measure of purposive construction of
section 17 of the 1973 Act and that that is also an aspect of the decision
which might usefully be re-visited. It
is clearly not without significance that some disquiet over the decision has
been expressed by both Lord Glennie in M v
O'Neill and Lady Smith in the even
more recent case of Jordan v Quarries [2006] CCOH 155.
[194] It remains only to note a subsidiary argument advanced by Mr.
McEachran to the effect that the phrase "injuries in question", where it
appears in section 17(2)(b), refers back not to "injuries" in section 17(2)(a)
but to "personal injuries" in section 17(1) of the Act. From that standpoint he went on to submit
that before a claim was time-barred under section 17(2)(b) a pursuer had to
have actual or imputed knowledge of all three relevant facts in relation to
each head of injury forming part of his
claim. Having regard to the clear
averment at page 78A of the Closed Record that was not the position in the
present case, at least so far as the psychiatric injuries were concerned, until
1999.
[195] I have already expressed my opinion elsewhere as to what is
grammatically the correct construction of section 17 with all that that
entails. Insofar, however, as Mr.
McEachran's submission goes further than Lord Glennie's obiter remarks in M v O'Neill, I have no hesitation in
rejecting it. It would make little
sense, as I see it, if an otherwise time-barred claim could be rescued from
oblivion by the chance emergence many years later of perhaps quite minor psychiatric
symptoms.
[196] For all the above reasons, therefore, I am of opinion that,
insofar as based on section 17(2) of the Act, the present case, insofar as
directed against these defenders, should on no view be remitted to probation.
[197] The second issue under this head was whether the pursuer's case
against the first to eighth defenders should nonetheless be allowed to proceed
by virtue of section 19A of the 1973 Act.
Here the considerations are very different and, although I recognise
that what appear to be conflicting factual averments make the timing and extent
of the pursuer's alleged memory loss far from clear, I have reached the view
with some hesitation that, having regard particularly to the averments at pps.
71-73 of the Closed Record, this is a matter which, if the action were
otherwise held relevant, could properly be sent to proof before answer. In saying that I agree with the Lord Ordinary
that the nature of the explanation advanced for the delay or delays which have
occurred is such that it might be unreasonable to impose on this pursuer the
same degree of specification as might be expected in cases of a different
type. It is also, I think, an important
consideration that the allegations of abuse in this case have already resulted
in a criminal conviction.
[198] I now turn to the second ground of appeal which raises the more
fundamental question of whether a relevant substantive case has in any event
been pled against the Congregation or Order of De La Salle Brothers in the
first instance.
[199] As counsel for these defenders pointed out, any such case would
have to be based on the existence of some form of vicarious liability and the
only basis for such liability averred on record was that of employer and
employee. The problem about that,
however, was that the pursuer himself averred that there was a separate body of
"managers" in whom the school was vested and who were responsible for its
running, including the employment of staff numbering, amongst others, the
sixteenth defender and his brothers in religion. In any event, the statutory framework for the
running of List D or approved schools such as that in which the pursuer was
detained was to be found in the Children and Young Persons (Scotland) Act, 1937
and was clearly to that effect. In these
circumstances it was hardly surprising that the Lord Ordinary had held that the
case directed against the first to eighth defenders, in so far as based on
employment, failed and that, said counsel, was, or should have been, an end of
the matter. Since no other basis for
liability was averred I, for my part, feel constrained to agree with that
proposition.
[200] Somewhat surprisingly, however, the Lord Ordinary did not go on
to dismiss the action against the first to eighth defenders. Instead, she conceived the possibility that
the sixteenth defender and the other Brothers might be seen as having been
acting as agents of the Order which might then be vicariously liable for their
actings as their principal. She referred
to a number of authorities in that connection.
I do not myself find it necessary to enter on an examination of these
authorities because, in my respectful opinion, the Lord Ordinary fundamentally
misdirected herself in proceeding (at para 94 of her Opinion) on the hypothesis
that
"the De La
Salle order (sic) agreed to provide
teaching, care and supervision services
(my emphasis) for the children at St. Ninians."
Even if that were the position,
there might, I think, be serious questions as to the nature and extent of any
implied mandate or agency (viz. the ability to create legal relationships
between the Order and third parties) and its consequences in terms of vicarious
liability. But that, on averment, is,
quite simply, not the position. On the
contrary, for ought seen in the pleadings (or in the 1937 Act which is referred
to in the pleadings), the Order did no more than simply put forward candidates
for employment by the "managers", albeit on a charitable or unpaid basis. The Lord Ordinary placed much reliance on the
case of Lister v Hesley Hall [2002] 1 AC 215 which vouchsafed the general
proposition, as described by Lord Hobhouse at p. 241B,
"that,
where the defendant has assumed a relationship to the plaintiff which carried
with it a specific duty towards the plaintiff, the defendant is vicariously
liable in tort if his servant, to whom the performance of that duty has been
entrusted, breaches that duty".
In my opinion, however, the pursuer
in this case has quite failed to aver the basis of any relationship as between the pursuer and the Order, let alone
one carrying the implications referred to by Lord Hobhouse. If anyone incurred the sort of duty referred
to by Lord Hobhouse, it would seem to me to be the "managers" of the school, as
defined by section 110 of the 1937 Act, who alone, with the assistance of the
headmaster, exercised immediate control over it.
[201] Counsel for the pursuer sought to adopt the approach of the Lord
Ordinary and for the reasons given above I am against them in that
submission. However, they went further
and asserted that the Order in some way "operated" the school at a lower
managerial level than the managers. Mr.
McEachran, indeed, sought leave to amend by inserting at page 9D of the Closed
Record the bare averment that, "The Order did operate said school at the
material time." I, for my part, would
reject that argument for the same reason the amendment was refused, namely that
there is no hint either on Record or in the statutory regime of any secondary
level of management such as that contended for.
Such a contention, even if intelligible, seems to me to lack any proper
foundation and to be based, at best, on speculation.
[202] For the foregoing reasons, which are not, I think, very different
from those given by your Lordship in the chair, the substantive case
purportedly pled against the first to eighth defenders is, in my opinion,
wholly irrelevant and the action, in so far as directed against them, should be
dismissed.
[203] So far as the case against the eighteenth defender is concerned,
I respectfully agree that for the reasons given by your Lordship in the Chair and
Lord Clarke it, likewise, should be dismissed.
The eighteenth defender also tabled pleas anent time-bar and in that
regard adopted all the arguments advanced on behalf of the first to eighth
defenders. Had it been necessary to do
so, I would have disposed of these pleas in precisely the same manner as that
indicated above in relation to the first to eighth defenders.
[204] In the overall result I respectfully concur in the motion
proposed by your Lordship in the chair.
