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MICHAEL GORRIE v. THE MARIST BROTHERS [2001] ScotSC 22 (26th November, 2001)

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

A206/99

		JUDGMENT OF SHERIFF PRINCIPAL J C McINNES, QC
		in the cause
		MICHAEL GORRIE
		Pursuer and Respondent
		THE MARIST BROTHERS
		Defenders and Appellants

Act: Mr B Erroch, Advocate, instructed by Messrs John Henderson & Son, Dumfries

Alt: Mr R Dunlop, Advocate, instructed by Messrs Keegan Smith, SSC, Livingston

DUMFRIES: 26 November 2001

The Sheriff Principal having resumed consideration of the appeal allows the record to be opened up and amended in terms of the Minute of Amendment for the pursuer and respondent (no 31 of process) and the Answers thereto for the defenders and appellants (no 32 of process) as adjusted; thereafter closes the record; recalls the interlocutor of the Sheriff of 21 February 2001 insofar as he repelled the first plea in law for the defenders and appellants; refuses to remit to probation the following averments contained in the closed record (no 25 of process):

On page 5 from: "In interview" in line 14 to "from them." in line 19.

On pages 6 and 7 from "In interview" in the fifth last line on page 6 to "an emergency." in the sixth line of page 7.

On page 14 from "In response" in line 7 to "Peterhead Prison twice." at the end of condescendence 5.

On page 27 from "Brother Cyril" in line 13 to "the Association." in the second last line on that page.

quoad ultra adheres to the interlocutor of the Sheriff; meantime reserves the expenses of the appeal.

NOTE:

Introduction

1.1 The pursuer claims damages as a result of sexual abuse which he avers that he suffered at the hands of Brother Norman, then a member of the teaching staff of St Joseph's College, Dumfries. That abuse is said to have commenced in 1972 and to have continued until 1976. At the material time St Joseph's College was run by the Marist Brothers, who are a religious teaching order. The pursuer was born on 28 February 1960. Accordingly he reached the age of eighteen in February 1978. In terms of the Prescription and Limitation (Scotland) Act 1973, section 17 his claim would have become time-barred on 28 February 1981. The present action was not raised until 1 April 1999, some eighteen years later. The defenders plead that his action is time-barred and that it is not equitable to allow the action to proceed. The pursuer pleads that, on the basis that the action is time-barred, it is equitable to allow the action to proceed. The Sheriff allowed the parties a preliminary proof before answer of their averments, restricted to whether it was equitable to allow the action to proceed in terms of section 19A of the 1973 Act.

1.2 Sections 17 and 19A of the Prescription and Limitation (Scotland) Act 1973 provide, in part, as follows:

"17.- . . . (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 attributed 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 a 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 nonage or unsoundness of mind."

"19A- (1) Where a person would be entitled, but for any of the provisions of section 17 or section 18 and 18A 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."

1.3 The case which is pleaded against the Marist Brothers is one of negligence on their part. It is averred that it was the duty of the Marist Brothers to take reasonable care for the safety and welfare of children in their care and not to subject them to avoidable risk. It is said to have been their duty as employers to take reasonable care to employ fit and proper persons in a teaching capacity and to assess fully the character, personality and propensities of Brother Norman. It is said that they should have instituted a system of regular checks and enquiries as to Brother Norman's treatment of the boys under his charge. It is said that they should have taken reasonable care to establish a system of adequate supervision and monitoring of the interaction between their employees and children in their care. It is averred that the Marist Brothers were in breach of these duties and that, as a result, the pursuer suffered the injury and damage set out elsewhere on record. The pursuer's pleadings in these respects are more fully set out below.

1.4 Until recently the law has been understood to be that, in circumstances such as those alleged in this case, an employer would not be vicariously liable for the wrongful or negligent acts of an employee committed in the course of his employment. As the pleadings stand no case is made that the Marist Brothers are vicariously liable for the wrongful acts allegedly committed by Brother Norman.

2. Minute of Amendment for the pursuer

2.1 A Minute of Amendment on behalf of the pursuer was lodged on 31 July 2001. Answers have been lodged to that Minute of Amendment. Adjustment has taken place. The first issue before the court is whether the Record should be opened up and amended in terms of the Minute and Amendment and Answers as adjusted. On behalf of the pursuer counsel submitted that the Record should be opened up and amended accordingly. The Minute of Amendment clarified the status of St Joseph's College and the period during which it was under the management and control of the Marist Brothers. It also introduced a case of vicarious liability. At debate it had been conceded on behalf of the pursuer that he did not seek to make a case of vicarious liability against the Marist Brothers. That concession had been made prior to the decision in the House of Lords in the case of Lister and Others v Hesley Hall Limited [2001] 2 All ER 769. In that case the House of Lords had departed from the law as it had previously been understood to be and had ruled that an employer could be liable for the clandestine acts of his employee if those acts were committed in circumstances brought about by the nature of that employee's employment. That would cover sexual abuse where an opportunity for that abuse to occur had been created by the specific tasks which an employer required an employee to carry out in the performance of his duties. In the case of Lister an employee of a residential school had sexually abused the plaintiff and others. The environment gave rise to the opportunity for that abuse to occur. Whether or not the circumstances in the present case gave rise to vicarious liability would require to be resolved after evidence had been led. The Minute of Amendment in this case could have come no earlier since it was dependent on the decision in the Lister case. Had a Minute of Amendment in these terms been proposed earlier the propositions which it contained would have been unstateable. The Minute of Amendment focused the main question which was in dispute. It would be unjust to the pursuer not to allow it.

2.2 On behalf of the defenders counsel opposed the amendment of the Record. This amendment had been first proposed long after the triennium had expired. It was accepted that each minute of amendment lodged after that period had expired had to be considered on its merits. See Macphail, Sheriff Court Practice second edition at paragraphs 10.32 and 10.34 and Pompa's Trustees v Edinburgh Magistrates 1942 SC 119 at page 125. It was accepted that this was a matter which was wholly within the court's discretion. However this proposed amendment changed the whole basis of the pursuer's case. See Macphail, supra at paragraph 10.37. The amendment contained new facts and a radically different basis of liability. The question of the employment of Brother Norman by the Marist Brothers was a matter of fact, as was the averment that Brother Norman was acting in the course of his employment so as to make his employers vicariously liable. The law hitherto had been that no case could have been based on vicarious liability in circumstances such as these. The case as pleaded so far was predicated on the basis of negligence for want of supervision. That case required the pursuer to establish the consequences of the alleged failure by the Marist Brothers to act. If the Minute of Amendment were to be allowed the pursuer would seek to impose liability on the defenders for intentional and criminal acts of wrongdoing carried out by Brother Norman, regardless of anything which the defenders could or might have done to prevent or to stop the abuse. That was a radical alteration to the pursuer's case. It had been conceded by counsel for the pursuer that such a case could not have been pleaded until the decision in Lister was known. In short, it was only because there had been a 25 year delay since the events complained of occurred that vicarious liability could be pleaded at all. The triennium in the present case had expired in 1981. The pursuer should not be allowed to benefit from a delay of 20 years. The court should refuse the motion to allow the Record to be amended in terms of the Minute of Amendment and Answers as adjusted.

2.3 Counsel for the defenders pointed out that in Pompa's Trustees, supra there had been an attempt to introduce a new case after the triennium had expired. The present action had been commenced after the expiry of the triennium. This proposed amendment was a radical change in the basis of the pursuer's case.

3. Minute of Amendment - Decision

3.1 Whether amendment of a pursuer's pleadings should be allowed after the expiry of a time limit is a matter for the discretion of the court. In the present case the Minute of Amendment is opposed because it is said to change the basis of the pursuer's case. The general approach of the court in such cases is set out in Pompa's Trustees, supra. It is for the court to determine in a case such as this whether the amendment changes "not the basis of the action so much as the method of formulating the ground of action". (See McPhail v Lanarkshire County Council 1951 SC 301 per Lord President Cooper at page 309). If as a result of the proposed amendment the basis of the action remains unchanged, albeit that that basis may be reformulated, the amendment may be permitted. In many cases whether the basis of the action is changed will be a matter of degree. As a general rule the court will not allow a new and different ground of liability to be introduced after the time limit has expired but a different formulation of the duties already averred, particularly if the person by whom they are said to be owed is not changed, will more readily be permitted. (See Mackenzie v Fairfields Shipbuilding and Engineering Co 1964 SC 90.) The question for the court is whether by amending his pleadings the pursuer would change the basis of his case. To determine that issue it is necessary to consider the case as presently pleaded and compare that with the case as it would be pleaded if the Minute of Amendment were to be allowed.

3.2 The pursuer avers that each school year had a "Rec Master" who was in charge of the dormitory. Brother Norman had been his "Rec Master" throughout the period 1972 to 1976. The pursuer avers (at page 3):

"It was normal practice for the "Rec Master" to change at the beginning of each academic year as the pupils moved into another dormitory."

He later avers (at pages 3-4) that:

"Had the Defenders followed the normal practice of changing the Rec Master at the end of each year, they would have removed from Brother Norman the opportunity and ability to continue physically abusing and intimidating the Pursuer."

There are numerous averments relating to matters of which it is said that those responsible for running the school were or should have been aware. The pursuer then avers (at page 6):

"Had the Defenders taken appropriate action to initiate a proper and efficient level of supervision of the activities of the Brothers, it may have discouraged Brother Norman from starting his campaign of sexual abuse and may have prevented it escalating over the course of the years from 1973 to 1975, conduct which worsened in its severity as it was allowed to continue unchecked by any safeguards or supervision."

And at pages 9-10:

"The Defenders' failure in supervision enabled a physically domineering and aggressive paedophile such as Brother Norman to continue, unchecked by any monitoring by the Defenders, to continue (sic) with a system of abuse over consecutive years, whilst the Defenders were charged with the health, safety and welfare of the Pursuer during his time in the Defenders' care. The Defenders did not operate a system of supervision of the behaviour of the Brothers, specifically they did not supervise the behaviour of Brother Norman. The Defenders did not operate a cyclical system thereby changing Brother Norman's Rec Master dormitory each year ... This was in direct conflict with the Defenders normal practice which did provide for each year to have a new Rec Master. The Defenders did not operate a system of two Brothers being present in the dormitory at night. ... The Defenders thereby failed to follow their own basic procedure to operate the change of the Rec Masters on a cyclical system and to have two Brothers present in the Pursuer's dormitory throughout these years. Their failure to follow these basic procedures to ensure supervision created a maximum opportunity for abuse to occur. They failed to provide the presence of two adults, namely two Brothers, at night in the dormitory. Had they done so the activities of Brother Norman would have been likely to have been discovered at an early date. The Defenders' departure from their normal practice of a cyclical system for the Rec Masters and to have two brothers present in the dormitory meant that there was no supervision of Brother Norman's activity. The Defenders' system was also defective in that the separation of the old building where the dormitories were housed created a physical isolation which Brother Norman took maximum advantage of."

3.3 The pursuer goes on to aver that in the academic year 1974/75 he feigned illness and was sent to the school sick bay. While there he was sodomised by Brother Norman on a number of occasions. The pursuer avers that the defenders failed in their supervision of the pursuer whilst he was in the sick bay. He further avers that his behaviour deteriorated as a result of the abuse which he had suffered. He avers (at page 13):

"Had the Defenders initiated an adequate system of either supervising Brother Norman or monitoring the behaviour and achievement of pupils, the continuing abuse would have been discovered and prevented."

3.4 In Condescendence 6 he avers (at pages 15-17) that it was the duty of the defenders:

"as employers to take reasonable care to employ fit and proper persons in a teaching capacity. It was their duty to take reasonable care to appoint suitable persons to the post of "Rec Master". It was their duty to take reasonable care to fully assess Brother Norman's character, personality and propensities. It was their duty, having appointed a new teacher as the "Rec Master", to institute a system of regular checks and enquiries as to his treatment of the boys under his charge including the pursuer. ... Further it was their duty to take reasonable care to establish a system to adequately supervise and monitor their employees interaction with children in their care. The Defenders prima facie failed to adequately check Brother Norman's suitability as a Rec Master". ... Had the Defenders had in place an adequate system of supervision for the welfare of the pupils such as the pursuer or the behaviour of Rec Masters such as Brother Norman, he would not have been able to initiate and continue with the serious sexual abuse and physical assaults from 1971 until 1976. Prima facie the Defenders failed to have in place any supervision to monitor the physical or mental welfare of pupils in their care such as the Pursuer in terms of psychological distress, physical injury and academic deterioration which would have alerted them had they had such monitoring or supervision in place that a pupil for whose health and welfare they were responsible was being physically and sexually abused by the Rec Master engaged by them to care for that pupil. Prima facie the Defenders did not have an adequate system of supervision of the behaviour and activities of Rec Masters such as Brother Norman. Had the Defenders had in place an adequate system of supervision it would have prevented the regular and repeated physical and sexual abuse of the Pursuer from 1971 until 1976 and would have prevented the regular and consistent sexual abuse by another member of the Defenders' Order, Brother Damien. ... It would have been an exercise of their duty to take reasonable care for the safety and welfare of the Pursuer to have reviewed the whole issue of supervision of the Brothers and in particular, those Brothers who potentially had maximum opportunity for inappropriate behaviour, namely Brother Norman as a Rec Master in his early twenties who was without supervision of any other Brother in his dormitory."

3.5 The pursuer goes on to aver that it was the duty of the matron at the school to take reasonable care for the physical well being of the pursuer while he was in the sick bay and that she either knew or ought to have known that the pursuer was being sexually assaulted. He avers (at page 19):

"The Defenders did not establish an adequate system of supervision, and they took no action to avoid the harm caused to the Pursuer. It was their duty to do so. ... The Defenders are therefor liable for the omission to adequately supervise the activities of Brother Norman. Their fault and negligence caused the Pursuer to sustain the loss, injury and damage which he did."

3.6 The pursuer goes on to reiterate that it was the duty of the defenders to operate their own system and level of supervision of the dormitories "in respect of the actings of the Rec Master, Norman Bulloch" and that it was "their duty to operate the cyclical system of changing the Rec Master each year". They also reiterate that it was the defenders' duty "to provide an additional Brother to sleep in the dormitory along with Norman Bulloch" while he was Rec Master. The averments continue (at page 19):

"It was the duty of the Headmaster (for whose acting the Defenders are responsible) to visit the dormitories once per week and to make checks and enquiries about the behaviour of the Rec Master, Norman Bulloch, and the welfare of children in his care including the Pursuer."

3.7 In the Minute of Amendment the pursuer seeks to add an averment that the duties carried out by Brother Norman in the dormitories were carried out in the course of his employment with the defenders and at times and places demanded by that employment. He further wishes to aver that the acts of sexual abuse occurred whilst Brother Norman was engaged in such duties.

3.8 The pursuer wishes to add an additional ground of liability namely that the defenders are vicariously liable for the acts and omissions of Brother Norman in the course of his employment. The basis of that ground of liability is that, by employing Brother Norman as a Rec Master whose duties included sleeping in close proximity with pupils and, at times, supervising their showering activities, the defenders placed him in a position of close proximity to the pursuer. By doing so they created the risk which led to the acts of abuse. They afforded him the opportunity to abuse the pursuer sexually. The Minute of Amendment goes on to specify the duties which were incumbent upon Brother Norman and to aver that he was in breach of those duties, with the result that the pursuer suffered loss, injury and damage.

3.9 Although this amendment is made a very long time after the limitation period expired, I am of opinion that it amounts to a reformulation of the basis of the case which has been made against the defenders from the outset. That case in essence has been that, by allowing Brother Norman to carry out the duties which he was required to carry out without supervision or systems to prevent abuse, the defenders are liable for their failures as the body responsible for running St Joseph's College. In short the case as pleaded on record is that the defective system, which the defenders are alleged to have operated and for which they are alleged to have been responsible, enabled Brother Norman to carry on a course of sexual abuse over a period of years. Their failure to supervise what happened is said to have caused or at least contributed to the commission of the unlawful acts.

3.10 The case as pleaded in the Minute of Amendment in essence is that by placing Brother Norman in close proximity with pupils, such as the pursuer, the defenders created a risk that abuse would take place, a risk which they should have taken proper steps to minimise. Abuse having taken place, the pursuer wishes to contend that the defenders, in those circumstances, ought to be held vicariously liable for Brother Norman's conduct. What the pursuer is attempting to do is to show that those responsible for running the school entrusted the care of the pursuer to Brother Norman. The wrongs which he is said to have committed are said to be so closely connected with his employment that it would be fair and just to hold his employers liable for their consequences. That, it seems to me, underpins his case with regard to liability both on record and in the Minute of Amendment. The way in which it is expressed differs but fundamentally the issues are very similar. If amendment is allowed it may be that the pursuer will require to lead more specific evidence to establish that Brother Norman was an employee of the Marist Brothers or at least of those Marist Brothers who were responsible for running St Joseph's College.

3.11 In the case as presently pleaded, and in the case as it would be if the amendment is allowed, the court would be asked to determine that the consequences were in law of the proved facts and circumstances. Whether the pleadings are amended or not, in reaching a conclusion the court would require to concentrate on the closeness of the connection between the wrongful acts of Brother Norman and the duties which he was employed to perform. The legal issues, though in part different if the pleadings are amended, arise from the establishment of the same or at least very similar facts and circumstances. As the pleadings stand a much simplified version of the issue would be:

Was there such a close connection (as above) that it could be said that the duties of supervision etc. which the pursuer has averred were incumbent on the defenders and that the defenders were in breach of those duties?

As amended a much simplified version of an additional issue would be:

If the pursuer establishes that Brother Norman was an employee of the defenders was there such a close connection (as above) that it is fair and just to hold the defenders vicariously liable for his wrongful acts?

The facts and circumstances on which the pursuer would rely to have each of these questions answered in his favour are not materially different, except that, in relation to the case added at amendment, he would require to establish a relationship of employer and employee. The evidence led as to that matter may differ little from the evidence which he would require to lead to establish liability in respect of the bases of liability already on record.

3.12 In Lister, supra at page 800 Lord Millett described the circumstances in which vicarious liability may arise where intentional wrongful acts have been committed by a member of the staff of a residential school. He said:

"In the present case the warden's duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that in itself is not enough to make the school liable. ... But there was far more to it than that. The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school's responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys. ... I would hold the school liable.

I would regard this as in accordance not only with ordinary principle deducible from the authorities but with the underlying rationale of vicarious liability. Experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust."

3.13 In my view the Minute of Amendment, so far as the basis of liability is concerned, is within the bounds of a reformulation of the existing case. It was not suggested that allowing that amendment would cause prejudice in the sense that it would make it necessary to carry out further investigations, call further witnesses or the like, nor that the factual basis of the case would be materially altered. Whether or not such a reformulation would improve the prospects of success in this action for the pursuer is immaterial to the considerations which require to be applied to the determination of the question whether the Minute of Amendment should be allowed. In these circumstances I am of opinion that the pursuer should be allowed to amend the record in terms of the Minute of Amendment and Answers as adjusted. I should add that the other aspects of the Minute of Amendment, which are principally concerned with the nature of the relationship between the College and the local authority, were not said to be contentious.

4. The Sheriff's Decision

4.1 The case came before the Sheriff for debate. The defenders had two preliminary pleas, one relating to the relevancy and specification of the pursuer's pleadings and the other to the effect that the action was time barred and that it was not equitable to allow the action to proceed. In support of the plea to the relevancy the defenders made submissions as to the liability of the Marist Brothers as convened in this action, as to the averments of fault and as to the averments relating to foreseeability. In support of the plea that the action was time barred, it being conceded that prima facie the action was indeed time barred, the submissions were restricted to the question whether it was equitable to allow the action to proceed nonetheless. The Sheriff repelled the second plea in law for the pursuer, a matter which is not relevant to this appeal. He repelled the first plea in law for the defenders. It is accepted that he should not have repelled that plea in law. Otherwise he allowed a Proof Before Answer in respect of the first plea in law for the pursuer and the fifth plea in law for the defenders restricted to the matter of whether it was equitable in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the pursuer to proceed with the action. He set out his decision in a note but omitted to deal with certain submissions made to him to the effect that particular passages in the pursuer's pleadings were irrelevant in his interlocutor.

5. Submissions for the appellants in relation to the appeal

5.1 The appeal should be allowed. The interlocutor of the Sheriff of 25 February 2001 should be recalled. The action should be dismissed. Grounds 1(b) and (c) in the note of appeal were not insisted upon. The defenders were content that issues of foreseeablity and negligence should be determined after evidence had been led. Ground 4 in the note of appeal was conceded by counsel for the pursuer. The appeal should be allowed to that extent. It would be accepted that the first plea in law for the defenders should be reinstated. The grounds set out in the note of appeal which remained in issue were grounds 1(a), 2 and 3.

5.2 It was not suggested that there was anything wrong with the manner in which the present defenders had been convened as defenders in this action. It was accepted that an unincorporated association could be sued in a descriptive name. However the effect of suing the Marist Brothers as such appeared to mean that all those who were Brothers at the date when the action was raised were called as defenders. A question arose as to the liability of all those who had been called as defenders for wrongful acts which were averred to have been committed between 1972 and 1976. While those who were Brothers during that period might have been sued to the extent that they were involved with St Joseph's College at that time, there was no reasonable basis for suing all those who happened to be Marist Brothers either then or at the time when the action was raised.

5.3 There were some 4,700 Marist Brothers in 72 countries, including Australia and New Zealand. They are an unincorporated association. See Stair Memorial Encyclopaedia volume 3 at paragraphs 1632, 1633, 1639 and 1641 and volume 2 at paragraphs 801, 803 and 814. It was clear that an unincorporated association was not treated as a distinct legal person. The Marist Brothers were the equivalent of a non-proprietary club. They had no legal existence apart from membership of the association. Liability for wrongful acts would depend on the circumstances but it was not clear why all current members of the Marist Brothers should be liable in law for what a former Marist Brother had done many years before. It appeared that the preferable view was that liability, if any existed in respect of all the members of the association, would lie on those who were members at the time when the wrongful acts were committed, as opposed to those who were members at the time when the action was raised. See Campbell v Thompson & Another [1953] 1 QB 445 at page 451.

5.4 No attempt had been made to identify the persons who owed a duty of care to the pursuer at the time when the acts had been committed. No attempt had been made to identify the particular persons within the Marist Brothers who were responsible for the running of St Joseph's College at that time, i.e. those who may have been in breach of a duty to take reasonable care for the pursuer. The test which should be applied was that set out in Caparo PLC v Dickman [1990] 2 AC 605. See also Gibson v Orr 1990 SC 420 per Lord Hamilton at page 429H. There was a lack of "proximity" between the Marist Brothers and the pursuer. There would not have been that problem if the persons who were sued had been Marist Brothers who were at, or who were responsible for the operation of, St Joseph's College between 1972 and 1976. Reference was made to Harrison v West of Scotland Kart Club 2001 SC 367 at pages 386 and 387. There could be no proximity between the pursuer and a person who became a Marist Brother in Mauritius in 1998. The case was irrelevant in that the pursuer had failed to sue those Marist Brothers who might have been liable to him for the injuries which he claimed to have suffered.

5.5 In his note at page 16 the Sheriff had said that he was not satisfied that the attempt by counsel for the defenders to equate the position of the Marist Brothers with that of an unincorporated members' club was well founded. That was inconsistent with his earlier conclusion that the Marist Brothers were an unincorporated voluntary association. The difficulty was that all Marist Brothers who were Brothers at the time when the action was raised had been convened as defenders. There was no indication as to why they should all be held liable to the pursuer. That was a matter which should be determined in advance of a proof or proof before answer. If it is accepted that the Marist Brothers are an unincorporated association the extent of the membership should be averred. As in the case of Harrison, supra there was no averment to bring home proximity, and so liability, to the members of that association. There should be averments that the defenders who had been called were within the relevant degree of proximity in respect of the events which gave rise to the claim. In the absence of such averments there was not a relevant case. For that reason also the action should be dismissed.

5.6 So far as the second ground of appeal was concerned the last act complained of was in 1976. The triennium would have commenced on the date when the pursuer became eighteen, namely on 28 February 1978. It would have expired three years later, in February 1981, but the action had not been raised for a further eighteen years. In these circumstances the action was prima facie time-barred in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973. If the pursuer was to be allowed to proceed with this action he required to rely on the provisions of section 19A of that Act. It was for the pursuer to satisfy the court that it was equitable to allow the action to proceed. See Johnston, Prescription and Limitation at paragraphs 12.01 and 12.04 and Clark v McLean 1994 SC 410 at page 413D. The pursuer had failed to plead a relevant case to the effect that section 19A applied. For that reason also the action should be dismissed.

5.7 The court required to consider three factors in determining whether or not section 19A applied. These were:

the conduct of the pursuer;

prejudice to the pursuer; and

prejudice to the defender.

See Carson v Howard Doris Limited 1981 SC 278, Johnston, supra at paragraph 12.09. There was no averment of any prejudice which the pursuer would suffer if the court determined that section 19A should not apply. The pursuer had not averred that he had no other remedy, such as that any claim against Brother Norman would be of no value. The pursuer had received �10,000 from the Criminal Injuries Compensation Board but did not offer to prove that he would suffer prejudice if this action was not allowed to proceed. The pursuer's averments, at pages 23-25 of the Record, to the effect that the defenders would not be prejudiced by the lapse of time between the events taking place and the raising of the action, did not stand up to any scrutiny. The pursuer averred that witnesses were available but that was disputed. The criminal prosecution of Brother Norman was irrelevant to the determination of whether the defenders were at fault for not preventing the events complained of from happening. It was accepted that the pursuer had explained his delay in raising the action by reason of psychological distress but that only accounted for the delay until late 1996 or early 1997, when it appeared that he had told his wife what had happened. (See 5/3 of process). There was no explanation for the further delay which occurred thereafter. There was no relevant basis on which it could be held that section 19A applied. See Johnston, supra at paragraphs 12.10 and 12.11 and Munro v Anderson-Grice Engineering Co Ltd 1983 SLT 295 at page 297. Given that the pursuer had applied for criminal injuries compensation, an explanation was clearly called for. See JAC v RC, an unreported decision of temporary Judge T G Coutts, dated 28 October 1999, in which a proof before answer was allowed, and Nimmo v British Railways Board 1999 SLT 778 at pages 779 and 782-783. The latter case made it clear that this was a matter of relevancy. In effect there was no explanation for the delay between 1996 and 1999. The Sheriff, at pages 18 and 19 of this note, did not explain the basis for his view that there was sufficient justification for allowing a preliminary proof. He had failed to follow Nimmo, supra or to distinguish it. On this ground also the action should be dismissed.

5.8 So far as the third ground of appeal was concerned the Sheriff had noted that there were submissions that certain passages in the pursuer's pleadings should not be remitted to proof. These passages were to be found on Record:

On page 5 from: "In interview" in line 14 to "from them." in line 19.

On pages 6 and 7 from "In interview" in the fifth last line on page 6 to "an emergency." in the sixth line of page 7.

On page 14 from "In response" in line 7 to "Peterhead Prison twice." at the end of condescendence 5.

On page 27 from "Brother Cyril" in line 13 to "the Association." in the second last line on that page.

If the action was not to be dismissed none of these passages should be remitted to proof.

In all the circumstances, and for these reasons, the action should be dismissed. In the event of any proof being ordered the foregoing passages should not be remitted to probation.

6. Submissions for the respondent

6.1 It was accepted that the Sheriff should not have repelled the first plea in law for the defenders.

6.2 The Marist Brothers are a world-wide network of Catholic Brothers meeting the needs of young people for education. They are a unincorporated voluntary association. That had been accepted by counsel for the defenders. The pursuer had properly convened the defenders in this action. See Bridge v South Portland Street Synagogue 1907 SC 1351 at 1352. Lord Salvesen in that case had held it to be settled that, in every case in which an unincorporated society was sued, it was sufficient to call the society by name and its office bearers and managers as representing it. That had been done in this case. There was no mention in Bridge of the proposition that the congregation had to consist of the same members at the time that the action was raised as those who had been members at the time when the events which gave rise to the action had occurred. There was good reason not to require the full membership of an association to be convened as defenders. That would create an insuperable obstacle for pursuers. In this case it could mean convening 4,700 members from round the world.

6.3 The case of Campbell v Thompson, supra had held that the only members who could properly be sued were those who had been members of the club at the time when the plaintiff sustained his injury. That case was not binding on courts in Scotland. It involved English procedure as it then was and had not been followed expressly in Scotland. There was no equivalent in Scotland of a representation order which was the point at issue in that case. In any event, in that case there had been a concession that the only members who could be sued were those who had been members at the time when the injuries were sustained. It was also clear that the club concerned could not have been sued by name. See [1953] 1QB at page 451. The position in Scotland was different. It was clear from the cases which had been decided following the Disruption in 1843 that the property of a church remained vested in those who had formed the church concerned. The members for the time being of the church in whom the property was vested would continue to own that property regardless of changes in membership. The property of a club belonged to the members for the time being. When a club member died his interest in a share of the club property did not accrue to his executors. The Marist Brothers had neither been re-formed nor dissolved. The members for the time being would inherit the rights and obligations of the Marist Brothers of yesterday.

6.4 It was not necessary for the pursuer to identify the persons who were in control of St Joseph's College at the material time nor who among them, in particular, owed him a duty of care. It was sufficient that he had identified the body by whom that duty of care was owed. That body was the Marist Brothers who were, and are, a religious teaching order. At the time they ran St Joseph's College. If a right of action arose to a person who was a pupil at a school, whether that school was managed by the local authority or by a body of governors, that right of action would be against the organisation responsible for the running of the school, not against the individual head teacher.

6.5 The case of Harrison, supra turned on its facts. In that case persons had been sued both as individuals and as representing the club. The pursuer could only succeed against them as individuals because he was himself a member of the club. He could not sue himself for delict. Where the pursuer maintained that there was individual liability of, for example, office bearers it was necessary for him to identify the individual office bearers. In the present case the pursuer did not allege that particular individuals, other than Brother Norman, were at fault. In these circumstances the tripartite test referred to above was satisfied. The Sheriff had been right (at page 18 of his note) to conclude that the pursuer had averred sufficient circumstances to establish reasonable foreseeability of the risk of harm. St Joseph's College was a boarding school run by the Marist Brothers, an educational order. Boys were placed in their care and fees were paid to them. While the boys were in their care the Marist Brothers were responsible for their upbringing. There was a close proximity or neighbourhood between the pursuer, who was a pupil, and the Marist Brothers who were responsible for his care. There were ample averments to establish the necessary degree of proximity. On the basis of the decision of the House of Lords in Lister, supra it would be fair and reasonable to impose a duty of care on the Marist Brothers in respect of a boy in a boarding school run by them.

6.6 So far as the question of time-bar was concerned it had been conceded at the outset that this claim was time-barred. The question which the court had to decide was whether, having regard to the terms of section 19A of the Act, its discretion should be exercised in favour of the pursuer. It was accepted that in determining how that discretion should be exercised, the court had to take account of the factors referred to by counsel for the defenders. In Clark v McLean, supra the court had held that issues of fact could be dealt with on an ex parte basis and that detailed averments explaining the delay in bringing the action were not necessary, for nor relevant to, a determination of the applicability of section 19A. At page 413 in that case the court had said that it was necessary first to determine whether the pursuer's case in relation to the application of that section was relevant. If it was, the court must go on to consider whether or not there was sufficient agreement between the parties on the material facts for it to decide upon the applicability of that section. If there was not sufficient agreement the court should allow a preliminary proof on those facts. If there was sufficient agreement on the material facts then the court must adjudicate on the application of section 19A(1). In Munro v Anderson-Grice, supra there had been a six year delay between the pursuer deciding not to proceed with an action and his decision that he should proceed. There had been no explanation for that delay. He could have raised proceedings within the triennium but had decided not to do so.

6.7 In this case the pursuer had been seriously sexually abused. That was manifest from the reports lodged in process. He had revealed the fact of that abuse in late 1996 or early 1997 (see 5/3 of process). There were sufficient averments to show that the pursuer had been under a psychological disability until at least 1997. The action had been raised in April 1999. During the intervening period the pursuer had not been idle. Brother Norman was convicted in May 1998. The pursuer's action depended for its success on establishing that he was abused by Brother Norman. Corroborative evidence of sexual abuse was notoriously difficult to find. It was reasonable for the pursuer to await the conviction of Brother Norman before commencing the present action. The pursuer had co-operated with the police prior to conviction. He had had his claim dealt with by the Criminal Injuries Compensation Board in October 1998, six months or so before the action was raised. The only period of delay, if it was delay, was that period of six months. That was of no consequence and would not prejudice the defenders in any way. The Sheriff's decision to allow a proof had been correct. The conclusions of the psychological report (5/2 of process), clearly explained the difficulty which victims of serious sexual abuse encountered and provided an explanation for the delay.

6.8 So far as the passages which counsel for the defenders had moved the court not to remit to proof were concerned, a neutral position was adopted. It was accepted that averments relating to interviews on pages 5, 6 and 7 were irrelevant. The averments at page 27 in part dealt with the question whether the defenders were prejudiced. It was accepted that the remainder of that passage was hearsay.

6.9 So far as the question of time-bar was concerned Professor Johnston, Prescription and Limitation (at page 240) had written that it would be logical to discount prejudice to the pursuer and the defender in a question of the applicability of section 19A of the Prescription and Limitation (Scotland) Act 1973 on the basis that one was the mirror image of the other. The Sheriff's interlocutor should be adhered to except in the respects conceded.

7. Further submissions for the appellants

7.1 The case of Campbell v Thompson, supra had been cited with approval in the Stair Memorial Encyclopaedia, volume 2 at paragraph 814. A person was only liable for wrongs which he or she committed. Counsel for the pursuer had ignored the lack of a legal persona in the defenders. That was where the problem lay. In Harrison, supra the club had no separate legal persona see page 26. The decision in Harrison had been based on the fact that the pursuer was a member of the club whom he had sued but that was not the primary ground for dismissal of the action. The court had not been provided with an explanation of the delay in this case in the pleadings, as it should have been. In determining the application of section 19A the court had to have regard to the prejudice to the individual parties. While there may be no prejudice to the pursuer, the defenders would be seriously prejudiced if this action were allowed to proceed. They had made detailed averments of that prejudice on Record.

8. Decision

Have the defenders been correctly convened?

8.1 It is accepted that the Marist Brothers were and are an unincorporated voluntary association. Ordinary Cause Rule 5.7(1) provides that:

"A person carrying on a business under a trading or descriptive name may sue or be sued in such trading or descriptive name alone;"

The Rule goes on to provide that a decree pronounced in the Sheriff Court shall be a valid warrant for diligence against such person. The Sheriff Courts (Scotland) Act 1907, section 3(e) provides that:

"'Person' includes company, corporation, or association and firm of any description nominate or descriptive, or any Board corporate or unincorporated;"

Macphail, Sheriff Court Practice, second edition, at paragraph 4.101 states that:

"A voluntary association ... can sue and be sued in its own name in the Sheriff Court."

Under reference to Ordinary Cause Rule 5.7(1) the authors state that the object of that Rule is to provide a convenient way for actions involving such associations to proceed in the Sheriff Court. They refer to Borland v Lochwinnoch Golf Club 1986 SLT (Sh Ct) 13 as authority for the proposition that "business" is to be construed in the widest sense. The decision of Lord Salvesen in Bridge v South Portland Street Synagogue 1907 SC 1351 is to similar effect. He said:

"The old rule (that all the members must be made parties to the action) ... has been relaxed from considerations of expediency, and that now any unincorporated society may be sued in its own name, provided that its responsible officers and managers are also called in their representative capacity. ...

I hold it now to be settled that in every case where an unincorporated society is sued it is sufficient for the pursuer to call the society by name, and its office bearers and managers as representing it."

He added:

"In the present case it is plain that the society must be fluctuating as to its members."

So far as I am aware the opinion of Lord Salvesen in that case has not been challenged. Accepting the law as he stated it to be there would be no obligation on a pursuer to aver the names and addresses of those who were Marist Brothers at the time when the events giving rise to the pursuer's claim occurred, nor to aver the particular Marist Brothers who were then responsible for running St Joseph's College. The action appears to have been raised in proper form, the defenders having been sued in their descriptive name.

8.2 In Condescendence 1 the defenders admit that they are the Marist Brothers whose principal place of administration in Scotland is Kinharvie House, New Abbey, Dumfries. They admit that Brother McEwan is their principal representative in Scotland. They also admit that the court has jurisdiction. In Answer 2 they call upon the pursuer to explain and aver the basis upon which he contends that the present members of the Marist Brothers bear responsibility for the acts or omissions of the members of that religious community in the period 1972-1978. In Answer 6 the defenders aver that the Marist Brothers are a teaching order which teaches in each continent. In their answers to the Minute of Amendment they aver that the Marist Brothers are a world-wide network of Christian Brothers dedicated to the needs of young people in the field of education, with 4,700 Brothers in 72 countries.

8.3 The defenders have tabled a plea to the relevancy of the pursuer's averments. In the notice given in terms of Ordinary Cause Rule 22 the defenders state that the pursuer had failed to specify the link, if any, which existed between the Marist Brothers as a teaching order at St Joseph's and the present order. In particular they had failed to specify the basis upon which he sued the current Order and Brother McEwan, as representing the Marist Brothers. This matter has been raised as one of relevancy. It has not been raised as one of competency nor as one of title to sue.

8.4 If this is properly a matter of relevancy, in my opinion, the pursuer has sufficiently averred a case against the Marist Brothers by calling them as defenders by their descriptive name. It appears that he could have called them by that name without adding Brother McEwan as the representative of the Order but it is not incompetent to call him in a representative capacity. When an unincorporated voluntary association is called as a defender, so far as I am aware, the association is called as a continuing entity. I am unaware of any Scottish authority to the effect that, where a party wishes to sue an unincorporated voluntary association for damages, it must sue the association as it was at the date when the loss was sustained or must sue only those members of that association or the part of it which is averred to be responsible for causing the loss. Where an unincorporated voluntary association has a number of branches, a right of action may arise in favour of or against that association as a result of an event which occurred at one particular branch. So far as I am aware a right to sue or be sued in respect of such an occurrence would relate to the association as a whole and not to that particular branch. If I am wrong about that, that is a matter which would require to be resolved after proof. As the pleadings stand these issues have not been properly and fully focused.

8.5 I accept that an unincorporated voluntary association is not regarded as having a separate legal personality but a person who is injured through the fault of such an association or its servants or agents has a right of action in delict against the association, any decree which is obtained being enforceable against its assets. In practice such liability is not infrequently discharged by insurers. It is to be assumed that the pursuer would attempt to enforce any decree which he may obtain against the assets of the Marist Brothers. It is not appropriate to speculate as to the difficulties which may be encountered at that stage.

8.6 I accept that it is not settled whether liability falls only on those who were members of the association at the date of the delict or on those who were members when the initial writ was served. At this stage in this case it is neither possible nor necessary to formulate a view on that potentially complex matter. The case of Campbell v Thompson & Another [1953] 1 QB 445 was an English decision based on a number of specialities of English law. In my opinion it is not authority for the view that in Scotland only those members of an association who were members at the date of the delict would be liable to the party who sustained loss. If it is competent to sue the Marist Brothers as the body which was responsible for the running of St Joseph's College at the time when the pursuer sustained the injury and damage of which he complains, it is not prima facie incompetent to sue them simply because only some Marist Brothers were responsible for running St Joseph's College at that time. Counsel for the defenders appeared to accept that there was a close connection between those Marist Brothers who ran St Joseph's College and the allegedly wrongful acts of Brother Norman. He maintained that there was no such connection with "the Marist Brothers".

8.7 In my opinion if this matter is to be resolved it would have to be resolved in the context of a proof in which the merits of the pursuer's claim were in issue, as opposed to a proof relating to time-bar. There are averments of fact relating to the Marist Brothers not all of which are admitted. The structure and organisation of the Order and whether, for example, it can properly be regarded as an employer of teaching staff are matters for proof.

Time-bar

8.8 It is conceded by the pursuer that his claim is time-barred in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973. The pursuer has averred that the provisions of section 19A of that Act should be applied and that the court should exercise its discretion in his favour and find that it is equitable to allow him to proceed with his action, notwithstanding the provisions of section 17.

8.9 In Carson v Howard Doris Limited 1981 SC 278 at page 282 Lord Ross set out matters which the court should consider in deciding whether or not to exercise the power set out in section 19A. These were:

"(1) the conduct of the pursuer since the accident and up to the time of his seeking the court's authority to bring the action out of time, including any explanation for his not having brought the action timeously; (2) any likely prejudice to the pursuer if authority to bring the action out of time were not granted; and (3) any likely prejudice to the other party from granting authority to bring the action out of time."

The procedure which the court should follow when deciding whether or not to exercise the power conferred by section 19A is set out in Clark v McLean 1994 SC 410. In its opinion (at page 413) the court said this:

"The onus being on the pursuer to satisfy the court that the terms of sec. 19A(1) should be applied, the court must first determine whether the pursuer's case in relation to the application of that section is relevant. If the case is relevant, the court must consider whether or not there is sufficient agreement between the parties on the material facts for it to decide on the applicability of the section. If there is not, then, ... the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient agreement on the material facts, then the court must proceed to adjudicate upon the application of sec. 19A(1).

8.10 I am of opinion that prima facie the pursuer has pleaded a sufficiently relevant case in relation to the application of section 19A(1) (see record (no 25 of process) at pages 23-26). It is not necessary to rehearse the averments which he has made setting out the effect of the conduct of Brother Norman on his ability to reveal to others the traumatic experiences which he underwent and his ability to take action to pursue his claim earlier than he did. It was said that his averments did not account for all of the period between the expiry of the triennium and the raising of this action. While there may be a period during which the pursuer was inactive after he came to terms with the effects of what had happened to him and before he raised the present action, it is not clear, in the absence of evidence, how extensive that gap was nor whether it can be accounted for or excused by his earlier inability to pursue his claim. Although arguably a matter of relevancy, I am of opinion that that evidence would require to be led to determine whether there has been an unexplained delay and to enable the court to assess the significance of that delay.

8.11 It did not appear to be disputed that the pursuer has received a sum of money from the Criminal Injuries Compensation Authority. On the other hand it was not suggested that that was a full measure of the compensation to which the pursuer would be entitled if he were to succeed in the present action. Brother Norman was eventually prosecuted and imprisoned, in part, in respect of offences committed against the pursuer. It was said that the pursuer was unable to raise an action until such time as Brother Norman had pleaded guilty to charges against him.

8.12 In determining whether or not section 19A should be applied in this case the court is required to carry out a balancing exercise. That involves balancing the equities for and against allowing him to proceed. That balancing exercise could only be carried out by a court in full possession of the material facts. While it may be that, at least in part, the facts are as counsel for the defenders contended, these facts would only form part of the material information of which the court would require to take account in determining this issue. I am not prepared to hold on the basis of the information available to me that the pursuer's case in relation to the application of section 19A is irrelevant. Among the facts which would require to be considered are the averments of prejudice to the defenders arising from the delay which has occurred. That delay is said to have resulted in evidence, which would have been available earlier, no longer being available, either because records have been destroyed or because witnesses have died or can no longer recollect events relevant to this action. If the pursuer is prevented from proceeding with this action he would appear to be prejudiced in that he would never be able to establish his claim. The pursuer is unlikely to be able to obtain compensation from Brother Norman. The factors to which weight should be attached in relation to the question whether it is equitable to allow the pursuer to proceed with this action and the weight to be attached to these factors will involve a difficult and delicate balancing exercise in this case. I reserve my opinion as to the relevance or weight to be attached to prejudice arising solely from the application of section 19A or the refusal to apply that section. See Johnston, Prescription of Limitations pages 240-241.

8.13 It is apparent from the pleadings and from the submissions of counsel that there is not sufficient agreement between the parties as to the material facts to enable this court to decide on the applicability of section 19A. In these circumstances the proper course of action is to allow a preliminary proof on these facts. That is what the learned Sheriff did in this case in the exercise of his discretion. In my opinion he was right to do so.

Other relevancy issues

8.14 In my opinion counsel for the defenders was justified in his criticism of the relevancy of the four passages which I have refused to remit to probation. That criticism was made before the Sheriff who appears to have overlooked the need to deal with it. These passages are identified by reference to the (unamended) copy of the closed record (no 25 of process). For the most part these passages appear to narrate hearsay evidence. They are not averments of the pursuer's case. Those on page 14 appear to have no bearing on any matters which require to be resolved. The only passage which counsel for the pursuer sought to support, albeit without much enthusiasm, was the first part of the passage on page 27 of the record. It was suggested that some of these averments might be relevant to the question whether there was prejudice to the defenders if the action were allowed to proceed. However the only parts of that passage which might be used for that purpose relate to the arrangements for a meeting and the state of Brother Cyril's memory. In my opinion these are not proper averments of the pursuer's case. I have refused to remit any of these four passages to probation.

8.15 It was agreed that the expenses of the appeal should be reserved.