AM v. Hendron & Ors [2005] ScotCS CSOH

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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> AM v. Hendron & Ors [2005] ScotCS CSOH_121 (13 September 2005)
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Cite as: [2005] ScotCS CSOH_121, [2005] CSOH 121

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AM v. Hendron & Ors [2005] ScotCS CSOH_121 (13 September 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 121

A234/03

A1523/00

OPINION OF LADY PATON

in the cause

A.M. (AP)

Pursuer;

against

REVEREND JOSEPH HENDRON AND OTHERS

Defenders:

________________

Pursuer: McEachran, Q.C., Stirling, Advocate; Drummond Miller, W.S.

First to Eighth Defenders: Clancy, Q.C., E.G. Mackenzie, Advocate; Burness W.S.

Tenth to Fifteenth Defenders: Hanretty, Q.C.; HBM Sayers

Sixteenth Defender: No appearance

Eighteenth Defender: Moynihan, Q.C., Mure, Advocate; Solicitor to the Scottish Executive

13 September 2005

Abuse in a residential school
[1] The pursuer was born on 15 September 1953. In June 1963 when aged 91/2 he was committed to an approved school - St. Ninian's, Gartmore, Stirling. St. Ninian's was a residential school staffed mainly by monks from the De La Salle order based in Oxford. The pursuer remained at that school until autumn 1966. The school ultimately closed in 1982.

[2] The pursuer is now an adult. He seeks damages in respect of sadistic, humiliating and degrading abuse suffered at St. Ninian's, beginning immediately on his arrival when he was "assaulted by Brother Thadius [the headmaster] in front of a social worker": Article 6 of Condescendence, at page 37E. The pursuer names the main perpetrators of the abuse as Brother Benedict (the sixteenth defender) and Brother Thadius, the headmaster (not formally convened as a defender). The pursuer avers at the end of Article 3 of Condescendence at page 25B-C:

"Said treatment was perpetrated by the brothers of the De La Salle order at the school and by carers employed by the defenders and for whom the defenders are responsible."

[3] In 2003 Brother Benedict was tried in the High Court of Justiciary. On 20 June 2003, he was convicted of assaulting the pursuer on various occasions between 7 June 1963 and 31 December 1964. He was sentenced to two years imprisonment.

[4] In this civil action for damages, the pursuer sues seven named monks "as representing the congregation or order of De La Salle Brothers" (the first to seventh defenders); an eighth defender described as "The Congregation of the De La Salle Brothers"; five named individuals "as representing the managers of St. Ninian's School" (the tenth to fourteenth defenders); a fifteenth defender described as "the Managers of St. Ninian's School"; Brother Benedict in person (the sixteenth defender); and an eighteenth defender, the Lord Advocate "as representing the statutory successors to the Social Work Services Group and the Scottish Education Department" (the SED). The former ninth and seventeenth defenders no longer appear as parties to the action.

[5] Counsel for the eighteenth defender advised that the Social Work Services Group was not involved during the pursuer's time at St. Ninian's. Furthermore, the original SED (established in 1872) had been abolished in 1939 as a result of the Reorganisation of Offices (Scotland) Act 1939. Its functions had been transferred to an administrative department of the Secretary of State for Scotland. Counsel for the eighteenth defender very properly did not take issue with the designation or identity of the eighteenth defender, and was content to proceed on the understanding that the pursuer's references to the SED were intended as references to the appropriate administrative department of the Secretary of State.

[6] During a debate, counsel for the pursuer sought decree in absence against Brother Benedict, and a proof before answer against the remaining defenders. There was no appearance for Brother Benedict. Counsel for the monks, counsel for the managers, and counsel for the SED each sought dismissal of the case so far as directed against those defenders on grounds of relevancy, specification and time bar. Failing dismissal, each sought a proof before answer, preferably a preliminary proof restricted to the question of time bar (with, in the managers' case, an additional preliminary proof restricted to the question of the existence of the managers either as individuals in post at the relevant time, or as some sort of unincorporated association). If no preliminary proofs were to be ordered, a proof before answer at large should be allowed, excluding certain averments relating to civil liability based on The Approved Schools (Scotland) Rules 1961 (S.I. 1961 No. 2243), and certain other averments added by amendment during the debate and relating to the managers' insurance arrangements.

Decree in absence against Brother Benedict
[7] Articles 3, 4, and 5 of Condescendence set out details of the abuse inflicted upon the pursuer mainly by Brother Benedict. Senior counsel for the pursuer referred to the relevant criminal conviction. He moved for decree in absence against Brother Benedict in the sum of £50,000, extract to be superseded for fourteen days. As indicated above, there was no appearance for Brother Benedict. There was no opposition by counsel acting for other defenders. Accordingly I granted the pursuer's motion.

The organisation and supervision of the school
[8] The pursuer offers to prove that the SED was responsible for approved schools such as St. Ninian's during the 1960s. Subsequently, in the late 1960s or early 1970s, the responsibility for approved schools was transferred from the SED to the Social Work Services Group.

[9] The SED's responsibility included the following functions:- In terms of section 83 of the Children and Young Persons (Scotland) Act 1937, the SED issued a Certificate of Approval to a chosen school. In terms of section 72(2), the SED had power, in certain circumstances, to select the approved school to which a child should be sent. In terms of section 90(3) the SED was involved in funding such schools. In terms of section 106 the Secretary of State and the SED could appoint inspectors to review the progress of pupils. In terms of section 107, sums could be paid from the exchequer on stated conditions towards the expenses of managers of an approved school. In terms of paragraphs 6(2) and 9 of the Second Schedule to the 1937 Act (effective until 1 November 1963), the Secretary of State could order that pupils be discharged, or transferred to another school, or placed in the community on licence. In terms of sections 18 and 21 of the Criminal Justice (Scotland) Act 1963 (effective from 1 November 1963 onwards), the Secretary of State could order the release of a pupil, or give the school managers directions about the running of the school, or (if necessary) withdraw the Certificate of Approval. In terms of section 22 of the 1963 Act, the Secretary of State could regulate the constitution and proceedings of the school managers, and appoint new managers.

[10] During the pursuer's time at St. Ninian's school, a Mr. Murphy held the post of inspector. School managers were also in post. They were unpaid members of the community, who visited the school from time to time, attending meetings at which they made management decisions. The managers had certain statutory powers in terms of The Approved Schools (Scotland) Rules 1961 (S.I. 1961 No.2243), which provided inter alia as follows:

MANAGEMENT

4. The Managers shall manage the school in the interests of the welfare, development and rehabilitation of the pupils and for this purpose they shall take into consideration any report which may be communicated to them by or on behalf of the Secretary of State ...

STAFF

10. (1) Subject to the approval of the Secretary of State, the Managers shall, in consultation with the Headmaster, determine the number, type and qualifications of staff to be employed by them.

(2) The Managers shall be responsible for the appointment and, subject to the provisions of section 81 of the Education (Scotland) Act 1946, suspension and dismissal of staff. In exceptional circumstances, the Headmaster may suspend a member of staff from duty: such suspension shall be notified to the Managers within 24 hours.

(3) Where the character or conduct of a member of staff leads directly or indirectly to his resignation or to the termination by the Managers of his employment or to his contract of employment not being renewed on its expiry, the Managers shall forthwith submit a full report of the circumstances to the Secretary of State ...

(6) Staff, other than minor domestic staff, shall be appointed under contract of service or, in the case of a school provided by an education authority, under the authority's normal arrangements for the engagement of staff ...

[11] In addition to the inspector and managers referred to above, there were teachers and carers at the school. The teachers were mainly drawn from the De La Salle Brothers. The implication in Article 1 of Condescendence is that the SED paid a subvention to the De La Salle mother house in Oxford in respect of monks supplied as teachers and carers. It is not clear whether any contracts of employment, written or verbal, were entered into, or with whom (although the 1961 Rules suggest that the school managers ought to have been parties to any such contract). The monks and carers lived in the school premises. They taught the pupils, and supervised them day and night. The monks were dependent on the bursar of the De La Salle order for any income (Article 1 of Condescendence).

Amendments in the course of the debate
[12] The debate took place in stages, on 8 to 11 June, 5 July, 30 and 31 August, 27 September, and 13 December 2004. During the debate, various amendments were made to the pleadings.

[13] On the second day of the debate (9 June 2004), following upon the opening speech by junior counsel for the first to eighth defenders, senior counsel for the pursuer amended the pursuer's second plea-in-law relating to vicarious liability by deleting the word "employees" and substituting the word "persons". He explained that the vicarious liability relied upon by the pursuer was not restricted to employment. There were other situations in which vicarious liability could arise, for example, agency, or the employment of an independent contractor. Counsel for the tenth to fifteenth defenders subsequently moved to amend the first plea-in-law for those defenders by substituting the words "become time-barred" for the word "prescribed".

[14] On the fifth day of the debate (5 July 2004), amendments for both the pursuer and the tenth to fifteenth defenders were made. The pursuer's amendment, contained in Minute of Amendment number 59 of process, added averments at the end of Article 12 of Condescendence relating to the question of time bar. In particular, averments were added relating to the pursuer's conviction in 1996 for assault and breach of the peace; his interview with a social worker preparing a Social Enquiry Report; his further contact with social workers in 1998 and 1999; and certain difficulties of disclosure. The tenth to fifteenth defenders' amendment, contained in Minute of Amendment number 60 of process, inter alia added at the end of Answer 1 for the tenth, eleventh, twelfth and thirteenth defenders the following passage:

"Explained and averred that the school closed in or about 1982. Thereafter no body or association comprising "the managers" of the school has existed. No assets exist which comprise property of any former manager of the school. The tenth, eleventh, twelfth, thirteenth and fourteenth defenders have no records relating to the school."

An averment admitting that the fourteenth defender had been a manager of the school was also deleted, and a denial substituted. All answers and pleas-in-law for the fifteenth defender were deleted.

[15] On the sixth day of the debate (30 August 2004), by Answers number 61 of process, the pursuer responded to the amendment for the tenth to fifteenth defenders number 60 of process by inserting at page 11C-D the words:

"With reference to the averments introduced by the tenth to fifteenth defenders by Minute of Amendment introduced in the course of the procedure roll hearing in July 2004, it is believed and averred that at the material time the managers of the school had employer liability or similar insurance with the Royal and Sun Alliance or an associated company. The tenth to fifteenth defenders are called upon to admit or deny the existence of insurance as a matter within their knowledge."

The first to eighth defenders also moved formal Answers number 62 of process, adding "Not known and not admitted" in respect of the averments added by Minute of Amendment number 60 of process.

[16] On the ninth day of the debate (13 December 2004), senior counsel for the pursuer amended Article 10 of Condescendence at page 59A by inserting the passage:

"It was [the eighteenth defender's] duty to take reasonable care for the safety and welfare of the 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."

Submissions relating to liability
[17] What follows is an outline of counsel's submissions, not necessarily in the order in which they were made.

Liability: the pursuer's case against the De La Salle order

Submissions for the De La Salle order

[18] Vicarious liability: Counsel for the first to eighth defenders submitted that the pursuer had failed to make a relevant case of vicarious liability against the order. There were no averments of employment; partnership; agency; or pro hac vice employment. Reference was made to Gloag & Henderson, The Law of Scotland (11^th ed.) paragraphs 33.05-33.06; Harrison v West of Scotland Kart Club, 2001 S.C. 367, 2004 S.C. 615; and Lister v Hesley Hall Ltd [2002] 1 A.C. 215.

[19] The authorities advanced by the pursuer did not assist. Kilboy v South Eastern Fire Area Joint Committee, 1952 S.C. 280, concerned employment. London General Omnibus Co v Booth (1893) 10 T.L.R. 34 did not assist. In the context of pro hac vice employment, there required to be close control over the negligent party: Malley v LMS Railway Co, 1944 S.C. 129. Similarly, for vicarious liability in the context of an independent contractor, there required to be close control over the contractor's activities: Marshall v William Sharp & Sons Ltd, 1991 S.L.T. 114. In the present case, there was no such close control by the order over the monks at the school.

[20] The Canadian decision, John Doe v Bennett, 2004 S.C.C. 17, had not yet received authoritative acceptance in either England or Scotland insofar as it appeared to extend vicarious liability beyond an employer-employee situation. In any event, the case was distinguishable on its facts. The relationship between the individual monks and the De La Salle order was quite unlike the relationship between the abusive priest and the bishop in John Doe. For example, there was no vow of obedience; no power of assignment; and no power of removal. On the contrary, it was the managers of St. Ninian's (and not the De La Salle order) who had the power to hire, direct, discipline, and remove an individual monk. Furthermore in John Doe there was a geographically identifiable diocese within which the bishop had a supervisory role over parish priests. In the present case, there was no such geographical entity. Similarly the pursuer's averments did not satisfy the test of a close connection between the abuse and the conduct authorised, as set out in John Doe. The presence of the monks at the school, and authority for their conduct, derived from their contracts of employment with the managers. The order exercised no control over the monks as teachers.

[21] Counsel further elaborated the argument that the managers (and not the monks) were liable as employers. As a matter of law, the managers of the school were the employers of all the staff at the school. Reference was made to the Children and Young Persons (Scotland) Act 1937, Schedule 2, paragraphs 1(2), and 12(1) and (2); the Approved Schools (Scotland) Rules 1961, rules 4, 10(1) and (6), 11, and 12; and the Criminal Justice (Scotland) Act 1963, section 21. The managers as a body received clear recognition in the statutory regime. Accordingly the managers were vicariously liable for any abuse perpetrated by the headmaster or the monks: Lister v Hesley Hall Ltd [2002] 1 AC 215 (an authority which, in counsel's submission, was restricted to vicarious liability in the context of employment). The managers had been properly convened by naming as defenders the tenth to fifteenth defenders. It was not necessary to bring as defenders those managers in post at the time of the abuse: cf. Bridge v South Portland Street Synagogue, 1907 S.C. 1351.

[22] In all the circumstances, bearing in mind the guidance in Boustead v Gardner (1879) 7 R. 139 at page 145, the action so far as directed against the first to eighth defenders should be dismissed.

Submissions for the pursuer

[23] Vicarious liability: Counsel for the pursuer submitted that the order of monks was vicariously liable for individual monks carrying out the purpose of the order. When a monk disgraced himself by becoming drunk, the Provincial (the head of the order) flew to Scotland to deal with the matter (page 18A-B). That suggested fairly substantial control by the order over the monks at St. Ninian's. In any event, vicarious liability was not restricted to an employer-employee relationship. Reference was made to Gloag & Henderson, The Law of Scotland (11^th ed.) paragraph 33.05; Walker, Delict (2^nd ed.) page 128; McGee v Anderson (1895) 22 R. 274; Kilboy v South East Fire Area Joint Committee, 1952 S.C. 280, Lord President Cooper at pages 285 to 286, Lord Keith at page 287; London General Omnibus Co v Booth (1893) 10 T.L.R. 34. The case of Harrison v West of Scotland Kart Club, 2004 S.C. 615 only decided that a member of a club could not sue the club in respect of injuries or damage inflicted by another member of the club. By contrast, a third party had a right to sue the club ex delicto: cf. paragraph 814 of the Stair Encyclopaedia, Volume 2; and The Hibernian Dance Club v Murray, 1997 P.I.Q.R. P46.

[24] Counsel for the pursuer referred to John Doe v Bennett, 2004 S.C.C. 17 (a decision of the Supreme Court of Canada). That decision was of assistance in that the bishop of the diocese had been found vicariously liable for the acts of the priest even although there was no contract of employment. The De La Salle order was in the same position as the bishop, and the individual wrongdoer was in the same position as the priest. The same sort of liability arose, and accordingly the De La Salle order was responsible for the actings of the monks in the school.

[25] The monks were carrying out the purpose of the order, namely education. They ran and operated the school, as averred by the pursuer at page 9C of the record. They were in control seven days a week, twenty-four hours a day, with a brutal regime, as outlined at pages 27C, 22D, and 24D of the record. Accordingly, it was the pursuer's contention that the De La Salle order was vicariously liable for the monks sent to St. Ninian's to teach the children and to care for them twenty-four hours a day. The case of Lister v Hesley Hall Ltd [2002] 1 AC 215 was relevant in relation to the scope of the monks' authority.

[26] Towards the end of the debate, senior counsel for the pursuer also submitted that the order of monks was a member of a joint enterprise engaged in setting up the approved school. Every member of that enterprise was responsible for what had gone wrong, all as set out in paragraphs [48] and [49] below.

Liability: the pursuer's case against the school managers

Submissions for the school managers

[27] Counsel for the tenth to fifteenth defenders submitted that the action so far as directed against the managers was irrelevant and should be dismissed. The managers were disparate individuals, not a corporate legal entity. There was no associated body or corporation known as "the managers" which could be found vicariously liable for the abuse. There was no continuing entity (contrast with the circumstances and views expressed in Gorrie v The Marist Brothers, 26 November 2001, Sheriff Principal McInnes Q.C., at paragraphs 8.1 to 8.7).

[28] Counsel referred to, and adopted, the observations in the Stair Encyclopaedia, Volume 2, at paragraph 814. Those observations had not been criticised in the Inner House in Harrison v West of Scotland Kart Club, 2004 S.C. 615. Counsel accepted that persons who were members of a club or association at the time of the delict could be liable: Campbell v Thompson [1953] 1 Q.B. 445. Such persons would have to be convened as defenders. But in the present case, not only was there no unincorporated association of managers, but also not one of the tenth to fifteenth defenders had been a manager of the school at the relevant time.

[29] Counsel added that the issue of the employment of the monks was shrouded in obscurity. Questions arose about the mechanism for payment, and the involvement of the SED. The elements of control and the placing of children, so crucial in Lister, cit. sup., might not be made out against the managers because of their particular role, involving infrequent visits to the school, and little control over its day-to-day functioning.

[30] The first to eighth defenders' analysis of the case of John Doe, cit. sup. was endorsed and adopted. The court was invited to dismiss the action so far as directed against the tenth to fifteenth defenders. Alternatively, the court might wish to order a preliminary proof to allow the matters outlined in counsel's submissions to be investigated.

[31] In relation to the amendment made on 5 July 2004 (deleting all answers and pleas-in-law for the fifteenth defender, namely "the Managers of St. Ninian's School"), counsel explained that appearance had been entered on behalf of the tenth to fifteenth defenders partly as a matter of courtesy, and partly to prevent decree in absence passing against them. During the debate, the amendment relating to the fifteenth defender was made, as there was no legal persona known as "the Managers of St. Ninian's School". The deletion of all the answers and pleas-in-law relating to the fifteenth defender implied the agents' withdrawal from acting. Accordingly counsel opposed the pursuer's subsequent motion for decree against the fifteenth defender, on the ground that the procedure set out in rule 30.1 et seq. had not been fulfilled, and the fifteenth defender was in effect unrepresented. In any event, as no such body existed, decree against the fifteenth defender would be academic, and the courts were always reluctant to grant such decrees.

Submissions for the pursuer
[32] Counsel for the pursuer stated that it had been impossible to identify the individuals who had been managers of the school at the time when the pursuer was a pupil. Efforts had been made (by correspondence, and by recovery of documents), but without success. The pursuer had therefore sued certain individuals known to have been managers of the school in more recent years before its closure in the early 1980s. The pursuer did not know whether any of those individuals had been in post during the pursuer's time at the school.

[33] Senior counsel submitted that the appropriate test in the circumstances was one of expediency. Where an unincorporated association was involved, it was appropriate to have its most recent office-bearers before the court, sued in a representative capacity. Reference was made to Lord Marnoch at paragraph 23 of Harrison v West of Scotland Kart Club, 2004 S.C. 615; Bridge v South Portland Street Synagogue, 1907 S.C. 1351, at pages 1352-3; Gorrie v The Marist Brothers, 26 November 2001 (Sheriff Principal McInnes Q.C.) at paragraphs 8.1 to 8.7. Those cases provided strong support for the view that at the stage of debate, the action so far as directed against the managers was relevant.

[34] Senior counsel submitted that, as all the pleadings and pleas-in-law for the fifteenth defender ("the Managers of St. Ninian's School") had been deleted by amendment in the course of the debate, the pursuer was entitled to decree against the fifteenth defender in the sum of £50,000, jointly and severally with the sixteenth defender Brother Benedict.

[35] Towards the end of the debate, senior counsel for the pursuer argued that the school managers were also liable as members of a joint enterprise setting up the approved school. Every member of that enterprise was responsible for what had gone wrong, all as set out in paragraphs [48] and [49] below.

Liability: the pursuer's case against the SED

Submissions for the SED

[36] Counsel submitted that no relevant case had been pled against the eighteenth defender.

(i) Direct liability at common law: There were no relevant averments that the SED knew that boys were being routinely beaten. While the pursuer had averred at page 61D that the SED:

"... 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 ..."

the factual basis as set out at pages 35D-36D was inadequate to support such an averment. No relevant common law case of fault had been made out.

[37] In relation to the references to statute contained in Article 10 of Condescendence, it was not clear whether the pursuer sought to make a case of common law negligence concerning the manner of performance of a statutory duty. Reference was made to X (Minors) v Bedfordshire County Council [1995] 2 A.C. 633. The statutory provisions affecting the SED/Secretary of State listed in Article 10 gave mainly powers rather than duties. There could be no liability for breach of statutory duty where all that existed was a power, not a duty. Thus the alleged duty averred at page 61B ("to inspect the school from time to time, and at least every 6 months, to check whether the Certificate of Approval should remain in force") had no basis in either common law or statute: it was simply a "made-up" duty, but couched in absolute terms. Similar criticisms could be made of most of the other duties on pages 61 to 62. Those averments were therefore irrelevant. Only one duty at page 59C (review of the pupils' progress) had some basis in a statutory obligation, namely paragraph 6(2) of Schedule 2 to the Children and Young Persons (Scotland) Act 1937. But there were no averments that the SED had failed to review the pupils' progress, or that there was any causal connection between failure to review and the pursuer's injuries (for example, that review properly effected would have resulted in the pursuer's early release on licence). In the result, therefore, no relevant case of direct liability had been made out.

[38] (ii) Vicarious liability: Counsel submitted that there was no averment explaining how the eighteenth defender could be vicariously liable. The only attempt came at page 11B-C where it was averred that:

"Some of the staff who worked at the school were employed by the eighteenth defender's statutory predecessors."

That averment was insufficient to make a relevant case. There was a complete lack of specification as to which members of staff (if any) were so employed.

[39] Counsel for the pursuer had also put forward the following proposition:

"There was a very unusual quasi-employment situation operating at the school. There were three sets of defenders, all of whom contributed to the operation of the approved school. It was submitted that each of them bore some liability for what happened in the school."

That proposition had no legal foundation. McGee v Anderson (1895) 22 R. 274 did not assist. There was no suggestion that the school was a partnership or a joint venture, and accordingly there was no joint and several liability. Counsel therefore invited the court to find that there were no relevant averments of vicarious liability against the eighteenth defender.

[40] (iii) New and developing law relating to non-delegable duty: The pursuer seemed to be asserting that, while there might be no liability at common law on the part of the eighteenth defender on the basis of direct liability or vicarious liability, yet there might be liability on the basis of a non-delegable duty of care. The case advanced by the pursuer was a very extreme form of the alleged new duty. The pursuer was in effect seeking to extend the boundaries of negligence, relying upon policy considerations. Reference was made to D & F Estates Ltd v Church Commissioners for England [1989] 1 A.C. 177, Lord Bridge of Harwich at pages 209H to 210; and A v Ministry of Defence [2004] EWCA Civ 641.

[41] On a plain reading of the pursuer's averments on record, the pursuer appeared to be advancing an absolute duty resting on the Secretary of State to see that the children were not harmed. Potentially, the duty proposed could render the Secretary of State liable for the criminal acts of a third party committed in circumstances where there had been neither fault on the part of the Secretary of State, nor fault on the part of any of his employees for whom he might be vicariously liable. A duty of that extent was not supported by Australian and Canadian authorities. The ratio of those cases was that the non-delegable duty of care should not extend to preventing harm arising from the criminal acts of third parties.

[42] In New South Wales v Lepore (2003) Vol.195 A.L.R. 412 (a decision of the High Court of Australia), at least four of the seven judges opposed the non-delegable duty being extended to harm arising from criminal acts. Counsel referred to Gleeson C.J. at paragraphs [1] to [4], [31] to [32], [34] to [35], [38] to [39]; Callinan J. at paragraph [340]; Gummow and Hayne JJ. at paragraphs [264] to [270].

[43] In KLB v British Columbia [2003] 2 S.C.R. 403; 2003 S.C.C. 51, the Supreme Court of Canada rejected the suggestion that there should be a non-delegable duty of care in circumstances similar to those in the present case (i.e. abuse of children in care). In KLB, the duty was statutory. In the present case, the pursuer was relying upon a common law duty of care said to be more extensive that the statutory duty, but apparently in conflict with the carefully structured and balanced statutory scheme.

[44] What was at issue in the present case was therefore the nature and extent of any non-delegable duty said to be incumbent upon the eighteenth defender. Counsel for the pursuer had advanced several formulations of the duty, and it was for the court to decide whether there was sufficient specification of any of these. Despite the free-flow of amendment during the debate, and the final crystallisation of the pursuer's case, there was still insufficient notice on record of the precise ground on which liability was said to attach to the eighteenth defender. The action so far as directed against that defender should be dismissed.

Submissions for the pursuer
[45] Counsel for the pursuer submitted that there was sufficient on record against the SED to go to proof before answer. Reference was made to Jamieson v Jamieson, 1952 S.C. (H.L.) 44; and Miller v SSEB, 1958 S.C. (H.L.) 20.

[46] (i) Direct liability: Counsel submitted that the averments were sufficient to justify an inquiry into the facts. The averments at page 35D et seq. brought home sufficient knowledge to the SED. The averment at page 37E to 38A, and the related duty at page 61C, were based on what the pursuer had been told by boys at Bellfield Remand Home (page 37D-E). In relation to the references to statute in Article 10, the duty to inspect every six months (page 61B) was drawn from statute together with the six month period which had to elapse before a Certificate of Approval could be withdrawn.

[47] (ii) Vicarious liability: Counsel for the pursuer submitted that there was "art and part" employment of the school staff by all three sets of defenders - the monks, the school managers, and the Secretary of State. The latter two were involved in the employment of staff at the school. Reference was made to the Children and Young Persons (Scotland) Act 1937, sections 83, 72(2), 90(4), 106-107. Sums of money were paid to the De La Salle order in Oxford, and the order provided monks to staff the school. Accordingly there was "art and part" employment. Alternatively the monks, the managers, and the Secretary of State were "partial" employers. There was a very unusual quasi-employment situation operating at the school. Each of the three sets of defenders had contributed to the operation of the approved school. Each bore responsibility for what had happened at the school.

[48] Towards the end of the debate, senior counsel developed that approach by submitting that the approved school at Gartmore was a joint enterprise involving the SED as funders, the monks as operating the school, and the managers as in charge of managing the school "in the interests of the welfare ... of the pupils" (Rule 4 of the 1961 Rules). Reference was made to McGee v Anderson (1895) 22 R. 274, Lord Trayner at page 277. All the defenders were liable as part of the joint venture. Every member of that joint enterprise was responsible for what had gone wrong.

[49] Thus the pursuer's primary submission was that the approved school was a joint enterprise involving the SED as funders, the monks as operating the school, and the managers as in charge of managing the school "in the interests of the welfare ... of the pupils". Alternatively, there was a joint venture involving the order of monks and the managers. Any member of the joint venture was liable for what had gone wrong.

[50] (iii) The SED's non-delegable duty of care: Counsel for the pursuer further submitted that the SED owed the pursuer a non-delegable duty of care. That submission was founded on policy considerations, developments in Australian and Canadian jurisprudence, and trends in the law of reparation in Scotland and England.

[51] The non-delegable duty of care was described as a duty of care owed to children in custody who had been deprived of their liberty, and removed from the care of their parents: cf. the duty owed to prisoners, Napier v The Scottish Ministers, 2004 SLT 555 at paragraph [92]. The duty was to see that such children were not ill-treated, abused, harmed or injured, and to see that they were kept safe. The amendment of the Record at page 59A reflected that duty.

[52] Counsel submitted that there were sound policy reasons for imposing such a duty on the SED. The children were vulnerable, and were effectively in custody. It would be odd if the SED could escape liability to those in custody by sending children to an approved school operated by a particular organisation which might be wholly unsuitable. The children were removed from their parents' care, and sent to be detained in an approved school under a system operated by the executive. A court had "imposed a sentence", and the executive had arranged where the child was to go. The care and control of those children were taken over by the state. Neither the children nor their families had any control over what happened to them.

[53] Counsel pointed out that courts in Canada and Australia had recognised the existence of a non-delegable duty of care owed to children in educational establishments - admittedly to date only in relation to statutory duties, not common law duties. In KLB v British Columbia [2003] 2 S.C.R. 403, 2003 S.C.C. 51, the Supreme Court of Canada supported the concept of a non-delegable duty of care, although such a duty was not found to be established on a proper construction of the relevant statute in that case (the Protection of Children Act). Reference was made to paragraphs 30 et seq., and in particular to paragraph 34.

[54] The SED's duty to take reasonable care for the safety and welfare of children in approved schools was non-delegable. If it were established that the monks and managers had failed in their duties, liability for breach of duty fell upon the SED, because that was the effect of a non-delegable duty of care. It was not strict liability, but a failure to exercise reasonable care on the part of the delegate (the monk, or the member of staff) which led to liability on the part of the SED: cf. English v Wilsons & Clyde Coal Co, 1937 S.C. (H.L.) 46, Lord Thankerton at pages 56 to 57; Lord Maugham at page 67; McDermid v Nash Dredging and Reclamation Co Ltd [1987] 1 A.C. 906, Lord Brandon at page 919B-D. Similarly, if the government delegated prison custody duties to a private business concern, and a prisoner was assaulted in prison, the government could not escape responsibility. If a breach of reasonable care were proved, the responsibility rested with the government. If that consequence were regarded as a type of insurance, that was a reasonable consequence. It was reasonable that the eighteenth defender should carry responsibility for a failure to take reasonable care on the part of any of the staff.

[56] Furthermore, there was increasing recognition in the law of reparation in Scotland and England of the existence of a non-delegable duty of care in a number of areas. Reference was made to Clerk and Lindsell, Torts (18^th ed.) paragraphs 5-49,

5-52; Walker, Delict (2^nd ed.) page 156; Cassidy v Ministry of Health [1951] 2 K.B. 343, Lord Denning at page 363 (non-delegable duty of a hospital); D & F Estates Ltd v Church Commissioners for England [1989] 1 A.C. 177, at page 208; English v Wilsons and Clyde Coal Co, 1937 S.C. (H.L.) 46, at pages 56 to 57, 67 (non-delegable duty of mine-owners for safe system); McDermid v Nash Dredging & Reclamation Co Ltd [1987] 1 A.C. 906, at page 919; Aiken v Stewart Wrightson [1995] 3 All E.R 449, at page 450 (where for policy reasons, it was held that there was no non-delegable duty of care in an insurance context); Powrie Castle Properties Ltd v Dundee City Council, 2001 S.C.L.R. 146. The categories of non-delegable duty were not closed. Non-delegable duties could be discovered by analogy. Policy considerations were also relevant. Cases in which a non-delegable duty of care had been found to exist included employers' liability cases where the employee had suffered personal injury; hospital cases where a patient had suffered personal injury during treatment; occupiers' liability in Scotland (Professor Walker's views); ship-owners; and nuisance. Cases in which a duty had been considered to be delegable tended to relate to pure economic loss: for example Aiken v Stewart Wrightson, cit. sup. Counsel submitted that by analogy there was a duty of care incumbent on the SED. An overarching duty to take care for safety and welfare was a duty of a non-delegable kind. Breach of the duty had caused personal injury, not merely economic loss. The cases in which a non-delegable duty had been found to exist generally concerned common law duties.

[57] Founding upon all of the above, counsel submitted that the concepts of non-delegable duty and vicarious liability were not interchangeable. There might be circumstances where vicarious liability was not established, but a non-delegable duty would permit recovery of damages by the pursuer. In KLB, the court decided that vicarious liability had been made out, but not a non-delegable duty. In Lepore, there was a recognition of a non-delegable duty, but the court had decided the case on the basis of vicarious liability. Counsel suggested that where vicarious liability was not open to the court, the issue of a non-delegable duty of care would take on a greater significance. Moreoever in Lister v Hesley Hall Ltd, Lord Hobhouse at paragraphs [53] to [54] made it clear that he would have found the defenders liable even although the relationship had not been "master-servant" but merely "delegator-delegate". Lord Millett made similar observations in paragraph [81]. Those were powerful judgments pointing the way in non-employer-employee situations to a non-delegable duty of care resting on a government department. The Master of the Rolls seemed to endorse such an approach in paragraphs [62] and [63] of A v Ministry of Defence, 7 May 2004 (Court of Appeal).

[58] In all the circumstances, the pursuer's case should be permitted to proceed to a proof before answer.

Submissions relating to the Approved Schools (Scotland) Rules 1961

Submissions for the De La Salle order
[59] Counsel for the order contended that the statutory provisions founded on by the pursuer did not give rise to civil liability for their breach. Accordingly the averments in Article 8 of Condescendence should be excluded from probation, and the pursuer's first and second pleas-in-law repelled so far as referring to breach of statutory duty.

[60] The rules provided a regulatory mechanism, a system of administrative checks and balances, with appropriate enforcement mechanisms. Parliament had not intended that civil liability would attach. Reference was made to Gloag & Henderson, The Law of Scotland (11^th ed.) paragraph 31.03; Pullar v Window Clean Ltd, 1956 SC 13, Lord President Clyde at page 21 et seq.; X (Minors) v Bedfordshire County Council [1995] 2 AC 633; R. v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58; Clunis v Camden & Islington Health Authority [1998] Q.B. 978; and Todd v Adams & Chope [2002] 2 Lloyds Rep 293, at page 299 paragraph 22 et seq.

[61] Counsel submitted that certain factors, taken together, suggested that the purpose of the 1961 Rules was not the protection of a limited class of persons, and that Parliament had not intended that a breach of the 1961 Rules should give rise to a private action for damages. Those factors were:

[62] (1) The history, scope, and purpose of the legislation: Counsel submitted inter alia that the enabling statute (the Children and Young Persons (Scotland) Act 1937) was social welfare legislation for the benefit of society as a whole, rather than a particular class of society such as children and young persons: cf. X (Minors) and Deputy Governor of Parkhurst Prison, cit. sup. Accordingly the present case could be contrasted with the line of authority concerning health and safety legislation enacted for the benefit of a particular class of workers. Paragraph 1(1) of Schedule 2 to the 1937 Act provided that the SED could make different rules for different schools or classes of schools. The potential for different rules suggested that the rules did not give rise to civil liability: cf. Todd v Adams & Chope, cit. sup. at page 299. Paragraph 1(2) of that Schedule gave the managers powers to make supplementary rules, which had to be formally approved by the SED. If the contention was that the 1961 Rules gave rise to civil liability, what then was the status of supplementary rules (the content of which might vary from school to school).

[63] (2) The means provided for compliance with the rules: The 1937 Act and the 1961 Rules contained administrative or regulatory machinery for compliance. They contained an administrative system of checks and balances. They included requirements about detailed record-keeping; notification of matters to the Secretary of State; approval of certain matters by authorities; visits to schools by managers; inspections by inspectors acting on behalf of the Secretary of State; and ultimately a power to withdraw the Certificate of Approval if dissatisfied with the condition or management of the school. In any event, further remedies were available: (a) the right under the common law of delict to sue for damages for assault and abuse; (b) the remedy of judicial review in the event of non-compliance with the 1961 Rules; and (c) the protection provided by the 1937 Act, making cruelty to children in care a specific criminal offence in terms of section 12(1).

[64] (3) The terms of the rules: Counsel submitted that the terms of the rules showed that Parliament did not intend a breach to give rise to civil liability. (i) The 1961 Rules were too imprecise for a breach to sound in damages. Rules 4 and 11(1) were examples. (ii) The rules specified different persons upon whom duties were imposed. That suggested that Parliament had not intended that there should be civil liability for breach. (iii) Rule 51 provided that any rule could be waived by the Secretary of State. It seemed inconsistent that some pupils might have a claim for damages for a breach of the rules, but other pupils (for example in another institution) injured by the same conduct, would not have such a claim.

[65] Counsel submitted that all those factors suggested that, on a proper construction of the legislation, there was a clear intention on the part of Parliament that a breach of the 1961 Rules should not give rise to civil liability. The court was invited to exclude from probation the averments in Article 8 of Condescendence (detailing the alleged breaches of the rules by the headmaster), and to repel the pursuer's first and second pleas-in-law insofar as relating to breach of statutory duty.

Submissions for the school managers
[66] Counsel for the managers adopted the arguments presented on behalf of the De La Salle order, and submitted that the averments not only in Article 8 and but also in Article 9 of Condescendence (detailing alleged breaches of the rules by the managers) should be excluded from probation. The rules did not create a civil law remedy. The predecessor of the 1937 Act - the Children and Young Persons (Scotland) Act 1932 - introduced approved schools to Scotland, although there had previously been voluntary schools for young boys in the 1840s, and voluntary reformatory and industrial schools in the early twentieth century. Nevertheless the 1932 Act provided for schools which would be "approved". The 1937 Act was a codifying Act. Arguably, the question was Parliament's intention in 1932. Rules were promulgated (S.I. 1933 No.1006) - an earlier and simplified version of the 1961 Rules. The aims of and language used in the rules were not designed to create civil liability: see, for example, Rule 35 of the 1961 Rules. When Parliament intended to impose rights, it used different language, making the rights clear and certain. The Secretary of State could waive the application of certain rules in relation to a particular school: that indicated that the rules did not give rise to a civil law remedy. Moreover there were alternative remedies available to enforce the efficient conduct of the school's affairs. Reference was made to B v Murray, 2004 SLT 967 (a decision relating to the Administration of Childrens Homes (Scotland) Regulations 1959). Counsel invited the court to repel the pursuer's first and second pleas so far as relating to statutory duty and so far as relating to the tenth to fifteenth defenders, and also to exclude Articles 8 and 9 from probation.

Submissions for the SED

[67] Counsel for the SED adopted the submissions made on behalf of the De La Salle order and the school managers.

Submissions for the pursuer
[68] Counsel for the pursuer submitted that the rules were for the protection of a limited class, namely the inmates of approved schools. The rules were about the health, safety and welfare of children in such schools: cf. Raffell v Surrey County Council [1964] 1 W.L.R. 358. The rules did not concern policy, administration and discretion: on the contrary, they were mandatory, and were required as an effective sanction. Where statutory provisions such as the rules were silent as to a civil right to claim damages, the assumption was that civil rights accrued. Any suggestion that the rules represented a system of checks and balances was erroneous: on that basis, the rules would provide no protection for the children (for example, during the six month period before a Certificate of Approval could be withdrawn: section 83 of the 1937 Act). The 1937 Act had criminal penalties attached only to some sections: section 2(4); section 4; section 12. There was no remedy in the 1961 Rules for a breach of the rules. There was no penalty. If someone such as the pursuer suffered as a result of non-compliance, the rules simply became a "pious aspiration": Stair Encyclopaedia, Volume 15 (Obligations) paragraph 156; dicta of Lord President Cooper in Pullar v Window Clean Ltd, 1956 SC 13 and of Lord Simonds at page 407 of Cutler v Wandworth Stadium Ltd [1949] A.C. 398. The alternative remedies suggested by counsel for the defenders were unrealistic. Public law remedies such as judicial review would not be available to the inmates of the school as against the first to fifteenth defenders. B v Murray, 2004 SLT 967 could be distinguished, for in that case, the 1959 regulations did provide criminal penalties.

[69] Counsel pointed out that the rules were not discretionary powers imposed on a public authority (which might militate against conferral of civil rights to sue). In relation to the power of the Secretary of State to waive the application of the 1961 Rules in respect of a particular school, waiver could occur only where sufficient equivalent rules were in place.

Submissions relating to the managers' insurance arrangements
[70] Counsel for the tenth to fifteenth defenders submitted that the averments introduced at page 11C-D (noted in paragraph [15] above) were irrelevant and should be excluded from probation. Insurance arrangements were irrelevant to the issue of liability, and were res inter alios acta: Caledonian North Sea v London Bridge, 2002 SLT 278. There were special statutory provisions creating third party rights against insurers in certain circumstances (for example, insolvency). But such provisions were not relevant in the present case. Furthermore, as submitted earlier, there was no entity known as "the managers". The averments should be excluded from probation.

[71] Counsel for the pursuer contended that it would be odd if individuals could be persuaded to undertake the function of school manager without some insurance or indemnification from the government. The averments should go to proof.

Submissions relating to time bar
[72] All counsel accepted that the long negative prescription might affect part of the period covered by the pursuer's claim. The Prescription and Limitation (Scotland) Act 1984 amended section 7(2) of the Prescription and Limitation (Scotland) Act 1973, such that obligations to make reparation in respect of personal injuries were no longer affected by the long negative prescription, but only by limitation. However that change took effect on 26 September 1984, and the amended legislation was not retrospective in effect: section 5(3) of the 1984 Act. Accordingly the amended legislation did not apply to the period June 1963 to 25 September 1964 - part of the period during which the pursuer attended St. Ninian's school.

[73] However at the debate, counsel for the defenders stated that they wished to reserve their position in relation to the long negative prescription. Any argument based on prescription would not result in a final resolution of the pursuer's case, as only part of the relevant period was affected (in contrast with the circumstances in K v Gilmartin's Exrx, 2002 S.C. 602, 2002 S.L.T. 801, 2004 S.L.T. 1014). The time bar issues discussed at the debate were therefore restricted to limitation issues.

Submissions for the De La Salle order

[74] Counsel for the De La Salle order submitted that the pursuer's averments in support of his case under sections 17(2) and 19A were irrelevant and lacking in specification.

[75] In relation to section 17(2), the action had been signetted on 8 May 2000, and served on the defenders on 17 and 18 May 2000. Yet the pursuer had apparently made disclosures in September 1996 which suggested that he had sufficient knowledge at that time to raise the present action. On that view, the triennium would have expired in September 1999. The pursuer's pleadings in Articles 11 and 12 of Condescendence (concerning alleged suppressed memories and contact with social workers in 1996) lacked candour. The pursuer's averments relating to the factors listed in section 17(2) were so contradictory, inconsistent, and lacking in specification that they were irrelevant. The averments about the nature and extent of the abuse suffered, the circumstances in which it occurred, and its effects upon him, gave rise to an inescapable inference that the pursuer must have been aware, for many years prior to the raising of the action, of all of the facts required by statute, or of sufficient facts such that he could with reasonable diligence have discovered all the necessary facts.

[76] In relation to section 19A, counsel submitted that the pursuer's averments were again contradictory and lacking in candour. No relevant case in terms of section 19A was made out. The first plea-in-law for the first to eighth defenders should be sustained, and the action dismissed. However if the court were not persuaded at this stage, a proof before answer restricted to the question of time bar should be allowed.

Submissions for the school managers

[77] Senior counsel for the managers adopted the submissions on time bar presented by counsel for the first to eighth and eighteenth defenders. The pursuer's pleadings were confused and lacking in candour. The pursuer was being disingenuous about repressed memory. There was no indication of the time-period during which any alleged suppression of memory occurred. The pursuer's averments revealed that he had known that he had been assaulted, and that he had been injured. He had told his mother about the assaults. He had told his friends, who had not believed him. He had not discussed the abuse with a bereavement counselling psychologist in the 1990s, as he felt a strong sense of shame. However in 1996 he told a social worker certain matters (although he was evasive about those matters in his pleadings). Thus the pursuer had, in 1996, recollections about systematic abuse. The passage of time between 1996 and 1998 was wholly unexplained. This was not a case where therapy had unlocked a flood of memories. It was for the pursuer to make averments sufficient to bring him within the time bar. He had not done so. There was no averment setting out a date when the pursuer had actual or constructive knowledge of the necessary facts: Adams v Bracknell Forest Borough Council [2004] 3 W.L.R. 89, paragraphs [45] to [47] and [51]; Agnew v Scott Lithgow Ltd, 2001 S.L.T. 876. The pursuer had not even averred sufficient to entitle him to a preliminary proof on time bar.

[78] Counsel submitted that the triennium had expired on 15 September 1974 (three years after the pursuer achieved majority). About thirty years had elapsed since then. The court was being asked to exercise its discretion in terms of section 19A at a time when not one of the managers managing the school during 1963 to 1966 was convened as a defender, and it was known that the school closed in 1982. Counsel invited the court to sustain the first plea-in-law (as amended) for each of the tenth to fourteenth defenders, and to dismiss the action so far as directed against them.

Submissions for the SED

[79] Counsel for the SED adopted the submissions for the De La Salle order and the school managers. The pursuer was attempting to place evidential weight on authorities such as KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, and M (K) v M (H), 1992 96 D.L.R. (4^th) 289, a Canadian case. The proposition appeared to be that, in cases of child abuse, it was universally recognised that until the victim underwent therapy, the consequences of the abuse were such that the victim did not possess the knowledge required by section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973. If that were indeed the pursuer's position, the pursuer had to plead (a) that he was ignorant of the factors in section 17; and (b) some line of medical evidence that his ignorance was the "constitutional consequence" of his condition. The pursuer could not simply rely on decisions in other cases for the proposition outlined above. The pursuer appeared to accept that he had a memory of events at an earlier date. The triennium had therefore expired before the action was raised.

[80] Furthermore, there was a lack of fair notice in relation to section 19A. It was far from clear upon what factors the pursuer would rely. The defenders were entitled to a coherent explanation why the litigation had not commenced until about forty years after the event. Suppressed memory might have a bearing on the delay, but the concept of suppressed memory was contradicted by the fact that the pursuer had been able to tell his mother, his friends, and a social worker. The amendment made by the pursuer in the course of the debate had made matters more confused.

[81] In conclusion, counsel submitted that no relevant case in terms of section 17 or 19A had been pled. The action should be dismissed, failing which there should be a preliminary proof on time bar.

Submissions for the pursuer

[82] Counsel for the pursuer submitted that the court should not form views about time bar (either section 17, or section 19A) without hearing evidence. Reference was made to KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441; M (K) v M (H) 1992 96 D.L.R. (4^th) 289 at pages 301e to 305h; Hawkins v Clayton, 1988 164 C.L.R. 539; Carnegie v Lord Advocate, 2001 S.C. 802; Johnston, Prescription and Limitation, page 358.

[83] The pursuer's position was that he had suppressed memories as a way of coping with what had happened: pages 70B and 72D of the Record. His friends did not believe him: page 72D. He did not think that the authorities would assist him if he complained: page 72A. He had a strong sense of shame, and that prevented him from discussing his experiences: page 73A. Only after the press publicity in May 1999 did he feel that he would be believed: page 72C.

[84] In B v Murray (2004) SLT 967, Lord Johnston held that averments of similar circumstances should go to a preliminary proof on time bar in terms of section 19A, but not section 17(2)(b). Counsel referred to Bryn Alyn, and submitted that in the present case, any time bar proof should proceed on both sections 17(2)(b) and 19A. As was made clear in paragraph [45] of Bryn Alyn, each case depended on its facts.

[85] Section 17 focused on what a reasonable victim of child abuse would have done before the age of 21 (18 years plus 3 years). The test was both subjective and objective: cf. Johnston, Prescription and Limitation, paragraphs 10.30 to 10.31. It was the very abuse itself which caused the victims to be slow in coming forward. The fact that the pursuer had confided some details to a social worker which the social worker subsequently described as "bizarre and awesome" did not demonstrate that the pursuer had the necessary confidence to go to solicitors seeking to raise an action. The pursuer had been in a position when he was obliged to answer certain questions because a Social Enquiry Report had to be prepared. In such circumstances, his answers did not demonstrate that the silencing effect of the abuse had been overcome. The pursuer was only given confidence by the newspaper report in May 1999.

[86] In relation to section 19A, reference was made to Donald v Rutherford, 1984 S.L.T. 70 at pages 77 to 79; and Clark v McLean, 1994 S.C. 410. Counsel submitted that the defenders' actions had caused the pursuer to be slow to come forward. The defenders did not have clean hands: Hawkins v Clayton, 1988 164 C.L.R. 539. Prima facie there had been no delay on the part of the solicitors. The claim was intimated in 1999. Legal Aid was granted in 2000. The case called on 29 May 2001: page 74E.

[87] Counsel for the pursuer finally submitted that there should be a proof before answer at large, and not a preliminary proof on time bar. Reference was made to Noble v De Boer, 2004 S.C.549, 2004 S.L.T. 1085; McCafferty v McCabe (1898) 25 R. 872; McGhee v British Telecommunications plc, 20 December 1995 (Lord Hamilton, unreported); Woodland v Advocate General, 24 March 2004 (Temporary Judge J.G. Reid, Q.C., unreported); Ablett v Devon County Council, 4 December 2000 (Sedley, L.J., Court of Appeal, unreported). There would be much overlapping evidence. Two separate proofs before answer would result in the repetition of evidence. The victims in such cases should not be forced to go to proof twice: cf. Ablett, cit. sup. at paragraph [8]. The court should allow a proof before answer at large, all pleas standing.

Opinion

Liability: the De La Salle order
[88] The De La Salle order is not a company or a partnership. In my view, the order is an unincorporated association, with no separate legal persona independent of its members.

[89] By contrast, the Canadian decision John Doe, 2004 S.C.C. 17 concerned a "corporation sole" created by legislation for the purpose of providing a legal interface between the Roman Catholic Church and the community within the diocese. One question at issue was whether the corporation's functions were restricted to property-holding, or whether the corporation could be held liable for the wrongful acts of a priest within the diocese. The court chose the broader construction. So far as vicarious liability was concerned, the court's ultimate decision (that the corporation should be held vicariously liable for the acts of the priest) was an endorsement of an argument that the close connection between the corporation and the priest in effect amounted to employment, with the employer corporation having considerable control over the employee priest's activities: see paragraph [27] of John Doe. Such an argument is in my view less suited to the circumstances of the present case. For all of the above reasons, I have found John Doe to be of less assistance than was suggested by counsel for the pursuer.

[90] Nevertheless I am not persuaded that the pursuer's case against the seven named monks "as representing the congregation or order of De La Salle Brothers" and the eighth defender described as "The Congregation of the De La Salle Brothers" should be dismissed at this stage, for the following reasons:-

[91] I accept that, as the law stands at present, a member of a club or an unincorporated association cannot recover damages from the association in respect of injuries suffered by him ex delicto at the hands of another member of the association: cf. Harrison v West of Scotland Kart Club, 2001 S.C. 367, 2004 S.C. 615; Gloag & Henderson, The Law of Scotland (11^th ed.) paragraph 33.05. However this case concerns injury suffered by a third party who was not a member of the association. As is pointed out by Guild and Ferguson in the Stair Memorial Encyclopaedia Vol.2 paragraph 814 (in a passage referring to clubs, but equally applicable to unincorporated associations in general):

"A third person injured through the fault of a club or its servants or agents [italics added] has a right of action in delict against the club and its funds ... This right may be based on ... the club's vicarious liability for the actings of one of its servants in the course of his employment and within the scope of his authority, express or implied, who committed the wrongful act complained of. The normal rules of vicarious liability will apply ... The possible liability of club members in delict towards third persons raises considerable dangers for club members. There is of course no reason why individuals by banding together to form a club or an unincorporated association should escape liability which as individuals or partners they would incur, since the benefit of limited liability is given only to companies formed under the Companies Acts ... members would appear to have delictual liability for ... injuries resulting from delicts committed by servants or agents [italics added] of the club acting within the scope of their authority. The liability would appear to be joint and several against club members, with the usual right of relief among those found liable."

[92] Gloag & Henderson, op. cit. refers to vicarious liability in the context of agency at paragraphs 33.05 and 33.06:

"It has been suggested, obiter, that the vicarious liability of a principal for an agent may be less extensive than that of an employer for an employee in 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' [Lord President Cooper in Mair v Wood, 1948 SC 83 at page 87]. It is thought, however, that the only material distinction between the two is that the right of an employer at all times to direct his employee how his work is to be done may extend the net of his vicarious liability wider than that of a principal for an agent, who is normally free of his principal's control as regards the manner in which he executes his mandate. In agency, the test is whether the act causing the damage was within the scope of the agent's authority, express or implied ...

... A principal is liable in damages to third parties 'for the ... torts, negligences, and other malfeasances or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorise or justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them' (Story on Agency (9th. ed.) s.452) ..."

[93] Against that background it seems to me that the pursuer's averments, taken with his amended second plea-in-law and his third plea-in-law, while insufficient to support a case of vicarious liability on the part of the order based on an employer-employee relationship, are sufficient to support a relevant case based on agency. Authorities such as Harrison v West of Scotland Kart Club, cit. sup. do not, in my opinion, prevent effective delegation of a task or function by a club or association to a particular member of the association, making that member an agent for the association in any dealings with a third party, and rendering the association liable to the third party: cf. committee members acting as agents for their association: Stair Encyclopaedia Vol.2 paragraphs 813 and 814; Harrison, cit. sup. at paragraph [25].

[94] On the averments in the present case, the De La Salle 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. Fulfilment of those functions was one of the predominant reasons for permitting the presence of Brothers Benedict and Thadius at St. Ninian's. 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.

[95] The question of the scope of the monks' authority, express or implied, then arises. Prior to the opinions expressed in the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215, it might have been thought that the monks' authority could not extend to abuse such as that inflicted upon the pursuer: cf. the reasoning of the Court of Appeal in Trotman v North Yorkshire County Council [1999] LGR 584, Butler-Sloss L.J. at page 591. But the House of Lords overruled Trotman in Lister, cit. sup, holding that where there was a close connection between the wrongful acts and the type of work being performed, it would be fair and just to hold the wrongdoer's employers liable for those wrongful acts: cf. dicta of Lord Steyn at paragraphs 10 and 20, and of Lord Millett at paragraphs 82 and 83.

[96] In my view, the ratio in Lister is equally applicable to a situation where the wrongdoer was a monk acting as agent for his order when fulfilling tasks of teaching, supervising, and providing twenty-four-hour care to children in a residential school. Accordingly I consider that the pursuer has averred sufficient for inquiry in relation to the De La Salle order.

[97] If, after evidence and submissions, the court were minded to hold that the De La Salle order should be found liable for the wrongful acts of certain of its members, questions might arise as to the precise source of payment of any damages and expenses awarded. I accept that it is permitted practice to use a descriptive name, with or without the addition of some individual members' names, in the instance of the writ: cf. Renton FC v McDowall (1891) 18 R. 670; Bridge v South Portland Street Synagogue, 1907 S.C. 1351; Gorrie v The Marist Brothers, 26 November 2001 (Sheriff Principal McInnes, Q.C., unreported). As is noted in the Stair Encyclopaedia, op. cit., at paragraph 814, it is thought that any funds and assets of the unincorporated association would primo loco meet any damages and expenses awarded. However, if those funds and assets proved insufficient, it might be arguable that only those monks who were members of the order during the period of the wrongful behaviour could be liable: cf. Campbell v Thompson [1953] 1 Q.B. 445 (although Sheriff Principal McInnes expressed reservations on that question in paragraph 8.6 of Gorrie v The Marist Brothers, cit. sup.). Furthermore, as a matter of practice and procedure, it may be that under Scots law, any decree obtained could be enforced directly against only those members of the order actually convened as defenders (who would have rights of relief against other members): Stair Encyclopaedia, Volume 2, paragraph 814; Harrison, cit. sup. Lord Marnoch at paragraph [23]. In my view however, such issues cannot be resolved at this stage. They are matters for tactics, evidence, submissions, and the practical enforcement of any decree.

[98] Accordingly I refuse to dismiss the action so far as directed against the first to eighth defenders.

Liability: the school managers
[99] In my view, it is doubtful whether the school managers constituted an unincorporated association. Rather they appear to have been disparate members of the community who undertook to serve as managers of the school, visiting and attending meetings at intervals: cf. section 110 of the Children and Young Persons (Scotland) Act 1937:

" 'Managers' in relation to ... [an] approved school means the persons for the time being having the management or control thereof ..."

At this stage, therefore, I am reluctant to recognise the fifteenth defender as a legal person, and for that reason I am not prepared to grant decree against the fifteenth defender.

[100] While I accept that the pursuer may have a stateable case based on the vicarious liability of the managers as employers of monks such as Brother Benedict in terms of Rule 10 of The Approved Schools (Scotland) Rules 1961 and Lister v Hesley Hall Ltd, cit. sup., I consider that counsel for the school managers may be correct in his submission that only those managers in post during the pursuer's period at St. Ninian's (1963 to 1966) could be held vicariously liable qua employer(s) for the acts of Brother Benedict or Brother Thadius.

[101] The currently-named tenth to fourteenth defenders aver that they were not managers at the time the pursuer was a pupil at St. Ninian's. In fact, the eleventh, thirteenth, and fourteenth defenders aver that they have "never been [managers] of the said school". The pursuer does not admit those averments. In the circumstances, I shall allow a preliminary proof restricted to exploring the status of the school managers (whether acting as individuals, or as an unincorporated association); the identity of those managers in post during 1963 to 1966; and whether the managers were employers of abusers such as to be vicariously liable for the abuse.

Liability: the SED

Direct liability
[102] The pursuer attended St. Ninian's school between 1963 and 1966. The pursuer's averments about the extent of the SED's knowledge of the state of affairs at St. Ninian's during that period are to be found at pages 35D to 36D, as follows:

"The Scottish Education Department visited the school without notice on about 5 September 1963 but in response to the absconding of 20 boys which attracted attention in the national press. At the time of that visit the Scottish Education Department was aware of staff shortage at the school. At that time the Scottish Education Department was aware that there were serious concerns at the school including concerns about verminous heads, blows and the physical care of the boys. On 2 December 1963 the Scottish Education Department noted that the concerns about verminous heads, blows and physical care of the boys ought to be kept under review. On 5 June 1964 the Scottish Education Department visited the school with notice. At that time the Scottish Education Department was advised that one monk was punishing the boys with a ruler or stick. Prior to that visit the Scottish Education Department were aware that a monk, believed to be the sixteenth defender, assaulted boys with a lace. The monk admitted to such punishments. At the visit in 1964 the Scottish Education Department witnessed Mr. McKenna having difficulties teaching, and becoming irascible with the class. The number of managers' meetings at Gartmore was noted to be inadequate. The Scottish Education Department was aware that there had been a complaint about punishment of boys on their posterior. The Scottish Education Department was aware that some of the Brothers were having to work long hours, and that this adversely affected the running of the school ..."

[103] The pursuer subsequently avers at pages 61C-D and 62B-C:

"[The SED] 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 the said boys were being regularly and routinely assaulted ... The Secretary of State had a duty to take reasonable care to remove boys such as the pursuer from said school once it came to the Secretary of State's notice that boys were being regularly and routinely assaulted".

[104] Counsel for the eighteenth defender submitted inter alia that the averments of fact did not justify the serious allegation that the Secretary of State knew that boys in the school were being regularly and routinely assaulted. There was nothing on record about what the SED did, or failed to do. However in my view the averments attribute to the SED knowledge about twenty boys absconding (which attracted the attention of the national press); serious concerns at the school concerning blows and the physical care of the boys; one monk adopting a practice of punishing boys with a ruler or a stick; assaults on boys with a lace; a complaint about punishment of boys on their posterior; and monks being overworked. In my opinion, there is sufficient on record to entitle the pursuer to an inquiry into the facts in that the SED 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. It is not necessary in my view that the precise form of harm was foreseeable: Hughes v Lord Advocate, 1961 S.C. 310, 1963 S.C.(H.L.) 31. Nor is it strictly necessary in the circumstances of this case for the pursuer specifically to aver that despite the knowledge detailed above, the SED did not remove the pursuer from St. Ninian's, and that removal from the school would have prevented the injuries caused by his presence at that school, as those matters are in my view obvious inferences arising from the existing averments.

[105] However, I am persuaded by counsel for the eighteenth defender that the references to statute contained in Article 10 of Condescendence are irrelevant, for the reasons advanced by counsel: see paragraph [37] above. Accordingly I shall exclude from probation the averments from page 61B (beginning "had a duty to inspect the school") to and including the words "placed out on licence as soon as possible. It" (page 61C-D). I shall also exclude from probation the averments from page 61D-E (beginning "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.

[106] I am also persuaded that the averment 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.") is unsupported by sufficient relevant averments showing why that knowledge should be attributed to the SED and the social workers. Accordingly I shall exclude that averment from probation, together with the related averment of duty at page 61C.

Vicarious liability
[107] The inference from the pursuer's pleadings in Article 1 of Condescendence is that the SED 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 terms of section 107 of the Children and Young Persons (Scotland) Act 1937, sums could be payable from the exchequer on stated conditions towards the expenses of managers of an approved school.

[108] In terms of paragraph 1(1) of the Second Schedule to the 1937 Act the SED had power to make rules for the management and discipline of approved schools. In terms of paragraph 1(2) of that Schedule, any supplementary rules created by the managers required the approval of the SED.

[109] In terms of Rule 10 of The Approved Schools (Scotland) Rules 1961, the Secretary of State's approval was required to determine the number, type and qualifications of staff to be employed at approved schools. In terms of Rule 10(3), when a member of staff's employment was terminated, a full report had to be made to the Secretary of State. Section 81 of the Education (Scotland) Act 1946 applied to the suspension and dismissal of staff.

[110] In terms of section 21 of the Criminal Justice (Scotland) Act 1963 (effective as from 1 November 1963), the Secretary of State could give the school managers directions about the running of the school, with the ultimate sanction of withdrawal of the Certificate of Approval in the event of failure to comply. In terms of section 22 of that Act, the Secretary of State could regulate the constitution and proceedings of the school managers, and could appoint new managers.

[111] 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 any 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.

Non-delegable duty of care
[112] The concept of a non-delegable duty of care has been recognised in both Scots and English law: cf. Cassidy v Ministry of Health [1951] 2 K.B. 343, Lord Denning at page 363; English v Wilsons and Clyde Coal Co, 1937 S.C.(H.L.) 46, at pages 56 to 57, 67; McDermid v Nash Dredging and Reclamation Co Ltd [1987] 1 A.C. 906, at page 919. Decisions in other jurisdictions, such as New South Wales v Lepore (2003) Vol. 195 A.L.R. 412 in Australia, and KLB v. British Columbia [2003] 2 S.C.R. 403, 2003 S.C.C. 51 in Canada, show that the concept of a non-delegable duty of care may be highly relevant in circumstances of abuse by staff of inmates at residential establishments, where traditional direct liability or vicarious liability cannot easily be established.

[113] In the present case, I have ultimately concluded that the reasoning of the House of Lords in Lister v Hesley Hall Ltd [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.

[114] In reaching that conclusion, I have not overlooked the concerns expressed by Gleeson C.J., Callinan J., and Gummow and Hayne J.J. in Lepore, when they point out that an unrestricted development of the concept of a non-delegable duty of care could result in an unacceptable extension of liability. I also accept the force of Lord Bridge's observations in D & F Estates Ltd v Church Commissioners for England [1989] 1 A.C. 177, at pages 210D-E. However it seems to me that, in the context of abuse by staff of inmates of residential establishments, those concerns and observations are met and answered by the guidelines laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] A.C.215.

[115] For example, in the present case, there might be concerns that the recognition of a non-delegable duty of care on the part of a body such as the SED would have the result that any education authority, despite lack of fault on their part, would be burdened with liability for damages in respect of any event occurring at a school which caused injury or harm to a pupil - in effect an absolute liability for harm. Thus for example it might be thought that the education authority would be found liable in respect of the injury or death of children caused by the criminal actions of a gun-man who broke into the school.

[116] However, it seems to me that the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215 laid down parameters which would address those concerns. The parameters would restrict any non-delegable duty of care at common law in the context of residential establishments such as an approved school. Each case would have to be determined on its facts. Liability would arise only where the requisite close connection between the work duties and the abuse was established, as envisaged in Lister. Applying the guidance contained in Lister, it would be unlikely that an education authority would be found liable in circumstances where a gun-man unexpectedly broke into a school and caused injury to pupils. Such an individual could not be said to be performing work duties which had a close connection with the sort of abuse inflicted.

[117]      From the above, it will be seen that it is my view that the concept of a non-delegable duty of care in a Lister-type context may be a common law duty of care, and not necessarily based on statute. I also take the view that a breach of such a duty of care may occur where the acts or omissions complained of amount to criminal behaviour for, as was pointed out in Lister at paragraphs [24] and [84], to do otherwise would result in the indefensible position that even although the close connection between work duties and abuse existed, behaviour which was deliberate and injurious would not result in liability: cf. the minority view of McHugh J. at paragraph [136] of New South Wales v Lepore, cit. sup.
[118]      I should add that the underlying policy reasons referred to in paragraph [113] above include a perception that it is unacceptable for a government body responsible for a system of residential schools to have no liability for abuse inflicted on pupils by staff whose task it is to care for, supervise, or instruct those pupils, on the technical ground that certain functions (such as entering into contracts of employment with members of staff) have been delegated to others such as unpaid members of the community performing what might be seen as civic duties. If the obvious link of employer-employee is not clearly available in relation to the government body, then the pupil is left to attempt to recover damages in respect of injuries suffered at the hands of those placed in authority over him, from others fulfilling certain functions within the system. There is no reason in principle or precedent why a government body should in such circumstances be free of liability for abuse in a situation such as is envisaged in Lister - that is, where there is a close connection between the work which the staff were engaged to perform and the type of abuse inflicted. In such circumstances, the concept of a non-delegable duty of care at common law is in my view appropriate, and would be fair, just and reasonable to impose. The medical context offers a useful parallel, in particular the dicta of Lord Denning in Cassidy v Ministry of Health [1951] 2 K.B. 343; the observations of Lord Phillips M.R. at paragraph 63 of A v Ministry of Defence [2004] EWCA Civ 641; and the views of Mason J. in Introvigne, referred to in paragraphs [23] and [25] of New South Wales v Lepore, cit. sup.
[119]      For those reasons, it is my view that the pursuer has pled sufficient to entitle him to lead evidence and make submissions on the basis of a non-delegable duty of care.

Liability: a joint enterprise
[120] On the averments, I am not satisfied that a joint enterprise existed. Quite apart from the fact that there are no clear averments of a joint enterprise on record, it seems to me that the system of approved schools was created under a statutory scheme, for which the SED had overall responsibility. The managers, monks and others agreed to fulfil certain roles within that system, but they were not partners or joint venturers of the sort identified in McGee v Anderson (1895) 22 R. 274. On the contrary, the SED/Secretary of State had the power to appoint new managers; to withhold approval in relation to the number, type, and qualifications of staff (Rule 10(1)); and to withdraw a Certificate of Approval (section 21 of the Criminal Justice (Scotland) Act 1963). The school managers for their part had the power to appoint and dismiss school staff (always subject to a degree of supervision and intervention from the SED). Such a hierarchical structure is not suggestive of a joint venture.

[121] However it is perhaps unnecessary to give a final ruling on the matter at this stage, as there are in my view other stateable grounds upon which the pursuer's case may proceed to proof before answer, all as set out above. In any event, the fact that I am not persuaded that a joint venture existed does not necessarily mean that the pursuer cannot sue the defenders jointly and severally. Many actions for reparation seek damages jointly and severally from different defenders on different grounds of fault, on the basis that they are joint wrongdoers, and that each individual breach of duty of care on the part of each individual wrongdoer contributed to the pursuer's loss, injury and damage: cf. Walker, Delict (2^nd ed.) page 118 et seq., and section 3(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940. An action seeking recovery of damages on a joint and several basis leaves many options open to the court, including finding various combinations of defenders jointly and severally liable, or finding only one defender liable, or dismissing the action so far as directed against any or all of the defenders, or granting absolvitor to one or more defenders.

Liability: conclusion
[122] For the reasons given above, I am not persuaded that any defender is entitled to decree of dismissal at this stage. However, I am persuaded that it will be necessary to have preliminary proofs before answer, as set out in paragraphs [101] above and [138] below. Thereafter, if the pursuer survives the time bar challenges, I would envisage a proof before answer taking place against such of the defenders as remain.

The Approved Schools (Scotland) Rules 1961
[123] It seems to me that, on a proper construction of the 1937 Act and the 1961 Rules, Parliament did not intend to impose statutory duties for the protection of a limited class of the public. Nor did Parliament intend to confer on a member of a particular class a private right of action for breach of a statutory duty: cf. Lord President Clyde at page 21 et seq. in Pullar v Window Clean Ltd, 1956 SC 13; X (Minors) v Bedfordshire County Council [1995] 2 AC 633. I have reached that conclusion for several reasons:

[124] First, Rule 51 provides that the Secretary of State has power to waive the application of the 1961 Rules in relation to particular schools. Such a power is in my view inconsistent with an intention on the part of Parliament that a breach of the 1961 Rules should give rise to a private right to recover damages. It would be an odd result if an inmate at one approved school could recover damages in respect of a breach of the 1961 Rules, but a pupil who had experienced precisely the same event in another school to which the 1961 Rules had been disapplied could not: cf. the circumstances in Todd v Adams and Chope [2002] 2 Lloyds Rep 293, Neuberger J. at page 299 paragraph 25.

[125] Secondly, the rules in my view provide a regulatory mechanism, a system of administrative checks and balances with appropriate enforcement procedures, including detailed record-keeping, notification of certain matters to the Secretary of State, approval of certain matters by the authorities, visits to schools by managers, inspections by inspectors acting on behalf of the Secretary of State, and ultimately the power to withdraw a Certificate of Approval from the school: cf. the circumstances and decision in R. v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 A.C. 58; Clunis v Camden and Islington Health Authority [1998] QB 978. In those circumstances, I am not persuaded that the purpose of the 1961 Rules was the protection of a limited class of persons. Rather, the rules emerged from social welfare legislation (the Children and Young Persons (Scotland) Act 1937) intended to benefit society as a whole rather than a particular class of society.

[126] Thirdly, the language used in the 1961 Rules does not in my view create any clear and certain individual rights. Many of the rules are expressed in wide discretionary language (see for example Rules 24 and 35). As Lord Browne-Wilkinson pointed out in X (Minors) cit. sup. at page 747C, exceptionally clear statutory language is required to show a parliamentary intention that those responsible for carrying out the relevant functions should be liable in damages.

[127] I shall therefore repel the pursuer's first and second pleas-in-law so far as relating to breach of statutory duty, and I shall exclude from probation the averments in Articles 8 and 9 of Condescendence.

The school managers' insurance arrangements
[128] A party's personal insurance arrangements are irrelevant in any action of reparation for personal injuries: cf. Bradburn v Great Western Railway Co. (1874) L.R. 10 Ex. 1; Parry v Cleaver [1970] A.C.1, at pages 13 to 14; Nabi v B.L. [1980] 1 W.L.R. 529, at page 532; Walker, Delict (2^nd ed.) pages 472-3.

[129] I shall therefore exclude from probation the pursuer's averments added by Answers number 61 of process on 30 August 2004, quoted in paragraph [15] above.

Time bar

Section 17(2)(b)
[130] The concept of awareness contained in section 17(2)(b) has been commented on in paragraph 10.27 of Johnston on Prescription and Limitation:

"... such authority as there is in Scotland is in favour of a test which includes a subjective element. In Carnegie v Lord Advocate, 1998 S.L.T. 872, it was held that 'the appropriate test to be applied is not an objective one defined by reference to the ordinary reasonable man, but one which takes into consideration the particular circumstances of the individual pursuer'".

[131] As for the constructive awareness test (i.e. whether it was reasonably practicable for the pursuer to become aware of the statutory facts in all the circumstances) the author notes at paragraph 10.32:

"On general principle ... it appears that a test which combines objective and subjective elements is likely to be fairest and this indeed appears to fit best with the statutory wording. The test appears to be subjective, inasmuch as it is directed at what was reasonably practicable 'for him', the pursuer, 'in all the circumstances'; but it appears to be objective inasmuch as it is directed at what is 'reasonably practicable'. This was, as it happens, the intention of the Scottish Law Commission in drafting this section: 'The words "reasonably practicable for him in all the circumstances" are designed to reflect that the test of knowledge is mainly objective, but not wholly so. This will allow the courts a certain degree of flexibility in order to take account of the different circumstances of individuals and the differing nature of their injuries' ..."

[132] In this particular case, the pursuer suffered physical and mental abuse between the ages of 91/2 and 13. As is emphasised in KR and others v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, that sort of abuse, during childhood, may affect an individual in such a way that he will be slow to disclose what has happened to him. Moreover, because of the context in which the abuse took place, the individual may not readily be "aware ... that the injuries in question were sufficiently serious to justify his bringing an action of damages." For example, there is now recognition that an individual who has suffered such abuse at a young age, in an institutional context, at the hands of someone in a position of power and authority, may suffer such a loss of self-respect, self-esteem, and confidence as to be unable properly to assess the nature, extent and consequences of the abuse inflicted on him so as to be "aware ... that the injuries in question were sufficiently serious to justify his bringing an action of damages": cf. dicta of Lord Hoffmann at paragraph 49 of Adams v Bracknell Forest Borough Council [2004] 3 WLR 89:

"If the injury itself would reasonably inhibit [a person] from seeking advice, then that is a factor which must be taken into account ..."

The observations of Auld L.J. at paragraph 45 of Bryn Alyn, cit. sup. are also relevant:

" To paraphrase Bingham L.J., whether a particular claimant would reasonably have not regarded a particular injury from such abuse when it occurred as significant for [the purpose of the English equivalent of section 17(2), namely section 14 of the Limitation Act 1980] is still likely to be a 'highly judgemental question'. It is a fact-sensitive question that needs to be considered on a case by case basis."

[133] I should add that, in my opinion, the peculiarly debilitating effect of abuse inflicted upon a child in an institution by a person with authority over that child makes it difficult to draw any parallel with a decision about a condition such as dyslexia (the subject of the court's decision in Adams v Bracknell Forest Borough Council, cit. sup.).

[134] 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)-(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.

[135] Accordingly despite what might be seen as confusions, deficiencies, and a lack of candour in the pursuer's averments relating to time bar, I consider that the court cannot properly reach a view without inquiry into the facts.

Section 19A
[136] In the event that the pursuer fails in his case based on section 17(2)(b), it is my view that he is entitled on his averments to seek to persuade the court to exercise its equitable power in terms of section 19A: cf. the approach taken in B. v Murray, 2004 SLT 967. While the pursuer in B. v Murray cit. sup. was ultimately unsuccessful (Lord Drummond-Young, 2 June 2005, unreported), the court has to investigate the circumstances of the present case before reaching a view in this case. The pursuer is in my opinion a fortiori entitled to a proof before answer on issues arising in terms of section 19A bearing in mind that he may be able to establish that the defenders (or one or some of them) are liable for the debilitating abuse which made it difficult for him to bring a claim earlier: cf. Hawkins v Clayton [1988] 164 C.L.R. 539.

Time bar: conclusion
[137] While I am satisfied that the court should hear evidence before reaching a view in relation to section 17(2)(b) and section 19A of the Prescription and Limitation (Scotland) Act 1973, I am not persuaded that a proof at large should be allowed. I accept that there may be overlapping evidence, but the scope and expense of a full proof would in my view significantly exceed that of a preliminary proof on time bar: cf. the observations of the Inner House in Clark v McLean, 1944 S.C. 410, at page 413F-G.

[138] For the reasons given above, I shall allow a preliminary proof on the issues raised in terms of both section 17(2)(b) and section 19A. The preliminary proof on time bar should be conducted on the same basis as that outlined in paragraph [18] of B v Murray, 2004 SLT 967. In other words, 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), failing which whether the court should exercise its discretion in terms of section 19A. The preliminary proof on time bar should take place after the preliminary proof on the issues concerning the school managers, outlined in paragraph [101] above.

Decision
[139] I shall repel the pursuer's first and second pleas-in-law only so far as relating to breach of statutory duty, and exclude from probation the averments in Articles 8 and 9 of Condescendence.

[140] I shall also exclude from probation the following averments as being irrelevant and/or lacking in specification.

At page 11B-C:

"Some of the staff who worked at the school were employed by the eighteenth defender's statutory predecessors."

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."

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."

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).

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).

[141] I shall allow 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 that they would be vicariously liable for the acts of the abusers referred to on record.

[142] I shall also allow a preliminary proof before answer on time bar issues in terms of both section 17(2)(b) and section 19A on the terms outlined in paragraph [138] above, to take place after the preliminary proof referred to in the foregoing paragraph. As indicated in paragraph [122] above, in the event of the pursuer surviving the time bar challenges, I would envisage a proof before answer taking place against such of the defenders as remain.

[143] I reserve all questions of expenses, so far as not already dealt with in the course of the debate, to enable counsel to address me on that matter.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> AM v. Hendron & Ors [2005] ScotCS CSOH_121 (13 September 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_121.html Cite as: [2005] ScotCS CSOH_121, [2005] CSOH 121