Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 48

A481/14

OPINION OF LORD McEWAN

In the cause

KM

Pursuer and Respondent;

against

GLASGOW CITY COUNCIL

Defenders and Reclaimers:

Pursuer and Respondent:  MacFarlane;  Urquharts (for Livingstone Brown, Solicitors, Glasgow)

Defender:  Murray;  BLM (for Charles Hennessy & Co, Solicitors, Glasgow)

28 April 2015

[1]        In this matter the pursuer, who is now 44 years old, sues the defenders in reparation for damages in consequence of physical, verbal and sexual abuse sustained by her over some twelve years from the age of three at the hands of her aunt, uncle and cousin at an address in Glasgow.  What happened was this.  Her mother died when she was two and the defenders having assumed parental rights over her placed her in the foster care of her aunt and uncle in 1974.  From then for many years she alleges a litany of abuses at different times and places until she grew up and escaped from it.  The claim is based on common law alleging that the defenders had a duty of care to safeguard her welfare, to monitor her safety, have a system of inspection of her placement to ensure it was operating in her best interests.

[2]        All of what is alleged is not known, not admitted or denied.  It is averred the claim is subject to statutory limitation, is irrelevant and lacks specification.  It was accepted before me that a number of people who might or ought to know the facts are now dead.  The case called before me on 28 January on a motion for further procedure at which time the pursuer made an important amendment (see para 9 of the interlocutor).

[3]        I should add the following.  The claim on quantum is not subject to any detailed defence.  This matter was heard as a short motion on the By Order (Adjustment) Roll and did not occupy much court time.  It is correct to say that the defenders sought a procedure roll hearing but when the pursuer (having amended) offered a preliminary proof on time bar the argument became solely about that or a full proof on all matters.  The matter began to develop into what would be procedure roll points and out of that it seemed to me that evidence on the merits would have to be given for either kind of proof.

[4]        The case is unusual and I accept that now a number of people involved will have died.  It seemed sensible to me to avoid the risk of two proofs.  It did not seem to me that on the averments the evidence on quantum would be extensive.  I refer to what is said about this in the pursuer’s Statement of Proposals.

[5]        I now deal shortly with the grounds of appeal.  These effectively narrate at length what would be the points at procedure roll.  I, of course, accept that if the defenders had insisted on a procedure roll discussion I would have had to allow that, and I make no comment here on the matters of law or specification set out.

[6]        The problem on the day was that the whole argument ranged over what kind of proof would be required.  If I have fallen into error because of that then the fault is entirely mine and plainly the reclaiming motion must succeed.  I have nothing further to add.