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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 34
PD206/19
OPINION OF LORD ERICHT
In the cause
A
Pursuer
Against
B LIMITED
First Defenders
C COUNCIL
Second Defenders
Pursuer: McKenzie QC, Gardner; Digby Brown LLP
First Defenders Pugh; DWF LLP
Second Defenders: Springham QC, Rolfe; Morton Fraser LLP
27 April 2022
[1]
The first defenders operate a residential care home. The second defenders are the
local authority. Notwithstanding a report which assessed him as high risk, the first
defenders allowed a 16 year old resident, X, unsupervised leave. During that unsupervised
leave, X raped and sexually assaulted a child. The issue in this case is whether the defenders
2
are liable in negligence for the criminal acts of X. The victim's grandmother raised this
action against the defenders on the victim's behalf for damages for personal injury at
common law. The cause called before me for debate on the issue of whether the defenders
owed a duty of care to the pursuer.
Factual circumstances
[2]
The factual circumstances averred by the pursuer, and consequently taken as pro
veritate for the purposes of the debate, were as follows.
[3]
In April 2011, the children's hearing made a supervision requirement in respect of X
in terms of Section 70 of the Children (Scotland) Act 1995. The second defenders were
responsible for implementing the supervision requirement.
[4]
X had resided in the first defender's residential care home since 25 May 2017. He
had a history of sexualised behaviour. Records note inter alia allegations that when he
was nine he had full sex with a girl aged 11 and in March 2016, he was alleged to have
touched a young boy in the school toilet.
[5]
In April 2016 there was an allegation that in a forest he had touched a boy's genitals
and he was accused on at least four occasions over the course of 2016 of touching other
young children inappropriately. A risk assessment dated 9 May 2017 noted he was at a high
risk of sexualised behaviour: there had been reports of him filming himself masturbating in
the local community and in placement and of him inappropriately touching younger boys at
school, a younger girl in a youth club and a boy in a lane near the youth club. In June 2017
he was excluded from school following sexualised behaviours with another child. He
indecently assaulted a vulnerable teenager with a mental age of 12 on 4 November 2017 at
the home as a result it was decided that he would be made subject to the second defenders'
3
Vulnerable and Young Person ("VYP") procedures. The defenders' records noted that he
had accessed pornography and child pornography on the internet in December 2017. On
9 February 2018 the defenders were advised about incidents at the college he attended in
which he had touched another young person on the hand and leg before askin g them to go
to the bathroom with him. On 19 February 2018 he was assessed as a high level of risk
management. At a VYP meeting on 23 February 2018 it was noted that he appeared to be
targeting vulnerable young people and exposing them to sexual risk and the pattern
appeared to be escalating and there was real concern about the risk he posed to others. Due
to more allegations of sexually inappropriate behaviour at college he was no longer allowed
to attend college. A risk assessment dated 10 March 2018 noted that he had stolen a tablet
device and sent explicit pictures to other young people and had recently begun to display
violent behaviour. In a risk assessment dated 22 April 2018 the defenders assessed his risk
of sexualised behaviour and of offending behaviour as high and advised that carers were to
be within eyesight of him at all times when out in the community or with other young
people, and that he was not to be allowed any independent activity. In a personal action
plan dated 18 May 2018 the defenders assessed his risk of violence and of absconding as
medium. He absconded again on 21 May 2018, during which incident he threw a brick at
the windscreen of a car containing his carers, shattering it, kicked in an office door and
threatened his carers with a knife. The record of the further absconding on 23 May 2018
noted that he was a high risk due to his risk assessment and to displaying sexual behaviour.
A report dated 24 May 2018 recommended that he remained subject to VYP due to there
being no reduction in risks and even an escalation.
[6]
At a meeting on or about 24 or 25 May 2018, the defenders decided to allow him
unsupervised leave. The reason for their decision was that he had turned 16 and they
4
erroneously noted that he had not displayed any sexualised behaviour during the 3 months
leading up to the meeting.
[7]
Further to another incident on 5 June 2018, it was decided that his project worker
would wear an alarm during sessions, all sharp knives would be removed from the kitchen
and the team leader would sit immediately outside sessions.
[8]
On 14 June 2018, he attended a children's hearing. The children's hearing decided
that, despite turning 16, he should remain subject to a compulsory supervision order. He
was unhappy with the decision.
[9]
On the evening of 14 June, the defenders had allowed him two hours unsupervised
leave. He went to an area around a primary school which was approximately 10 minutes
from the residential care home. The victim, a boy, was playing with friends on and around
the school's grounds. X pretended to be a policeman and lured the victim to a graveyard
near the school. He orally raped the victim, and chocked him and ejaculated on him.
Subsequently X pled guilty in the High Court to rape, contrary to section 18 of the Sexual
Offences (Scotland) Act 2009 and to sexual assault, contrary to section 2 of the 2009 Act and
was sentenced to 28 months detention.
The pursuer's averments on duty of care
[10]
The pursuers averred as follows:
"The defenders had a duty to compile care plans, support plans and risk assessments
in relation to [X]. The defenders knew or ought to have known that [X] had a history
of sexualised and violent behaviour. The defenders knew or ought to have known
about the allegations and incidents of violent and sexualised behaviour involving [X]
as hereinbefore condescended upon. All of these allegations and incidents were
contained within the defenders' records. The defenders knew or ought to have
known that he posed a real and immediate risk to young boys whom he would
encounter while on unsupervised leave. Until the defenders' decision on or about
24 or 25 May 2018 [X] had no unsupervised leave. By deciding to allow him
5
unsupervised leave et separatim by failing to impose an adequate control
mechanism, the defenders breached their duty of care to [the victim]. They failed to
have adequate regard to [X's] history of sexualised behaviour. They failed to have
adequate regard to the risk posed by him to young boys. They failed to have
adequate regard to the evidence that [X] would take advantage of even very short
periods without supervision to assault young boys. They failed to have adequate
regard to the (correct) conclusion of [the] report dated 24 May 2018 that there had
been `no reduction in risks and even an escalation'. They failed to undertake an
updated risk assessment after the incidents on 21 and 23 May 2018 hereinbefore
condescended upon. There is no record of the defenders having sought advice from
the HALT project on the proposed amendments to [X's] risk management plan
discussed at the meeting on 24 or 25 May 2018. It is believed and averred that they
did not do so. They failed to seek the advice of a psychiatric expert in the
management and treatment of sex offenders on the risks he posed to children and
whether it was safe to allow him unsupervised leave in the community. It would
have been usual practice to have done so. Had they undertaken an updated risk
assessment or had they obtained the advice of such an expert the only reasonable
conclusion that could have been reached was that (a) [X] remained a high risk to
young children in the local community, and (b) continued control mechanisms were
required. Even without undertaking an updated risk assessment or obtaining such
expert advice, such conclusions were or ought to have been obvious to the defenders
given the serious and very concerning conduct of [X] as hereinbefore condescended
upon. Such control mechanisms (which were or ought to have been obvious to the
defenders) ought to have included that (i) he should not have unsupervised leave in
the community, (ii) he should remain in sight of his carers at all times, and (iii) he
should not enter play parks or play grounds or otherwise interact with young
children. As a young boy residing in the vicinity of [the residential care home], [the
victim] belonged to a class of persons who were at a distinct or special risk of harm
as a result of the defenders' acts and omissions in allowing [X] unsupervised leave.
The defenders failed to take steps to minimise the risk posed by [X]. They failed in
their duty to take reasonable care to avoid causing unnecessary risk of harm to
children in the community from the actions of [X]." (Statement 6)
Submissions for the first defenders
[11]
Counsel for the first defenders submitted that the first defenders owned no duty of
care to the victim. The existence of a duty of care was a matter of principle and could be
decided at procedure roll (Mitchell v Glasgow City Council 2009 SC(HL) 21 at paras [10]-[12]).
The first defenders provided residential care support and supervision for X. The victim's
only connection to the first defenders was that he was the victim of X's wrongdoing. No
duty was owed to the victim because he was a young child who lived in the vicinity of the
6
residential home in which X resided. Such a duty of care would fall foul of established
principle and alternatively would be a novel contention and not a permissible extension of
law of negligence (Robinson v Chief Constable of West Yorkshire [2018] AC 736 at para 27). The
pursuer's case was closely analogous to Thomson v The Scottish Ministers 2013 SC 628. The
pursuer's pleadings disclosed no special relationship of the sort required by Thomson. In
respect of its alternative argument, counsel submitted that a duty of care could not be
established purely on foreseeability, and a relationship of proximity is required and the
imposition of a duty of care must be fair, just and reasonable. The age, sex and geographical
location of the victim would not create a relationship of proximity by reason of the victim
being special risk (Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at page 62, Thomson
at para [51]). The offence did not occur in the course of escaping but as an incident of the
general risk posed by X when unsupervised (Dorset Yacht Co v The Home Office
Submissions for the second defenders
[12]
Senior counsel for the second defenders submitted that an offer to prove that the
victim was a child at school in the vicinity of the residential care home at the material time
was insufficient to ground proximity between the pursuer and the second defenders in the
absence of an averred "special risk" (Mitchell v Glasgow City Council, Thomson v Scottish
Ministers, Hill v Chief Constable of West Yorkshire). If the court did not consider that the
pursuer's case fell within the established principles of the laws of negligence as set out in
Thomson, it would fall to be decided on the basis that it was a novel case (Robinson v Chief
Constable of West Yorkshire [2018] AC 736), which case there was no basis in the pleadings
from which a relevant relationship of proximity between the victim and the second
7
defenders could be established, nor any averments from which a court would find that it
would be fair, just and reasonable for the second defenders to owe a duty of care to the
victim. To impose such a duty would entail the second defenders owing a duty of care to all
those who might be harmed by any child in respect of whom the second defenders have
statutory duties or responsibilities: such a duty would be novel, too wide and too onerous.
Submissions for the pursuer
[13]
Senior counsel for the pursuer's primary submission was that a proof before answer
should be allowed with legal issues being resolved after the facts had been established.
[14]
His secondary submission was that if the legal issues could be resolved at debate, the
pursuer had pled a relevant case. On the facts of the case there was both foreseeability of
harm and proximity such that a duty arose on the part of the defenders to take reasonable
care for the safety of the victim and to avoid causing him unnecessary risk harm. The
foreseeability of harm arose from X's history of sexualised behaviour, violence and
absconding. Proximity arose because the victim was (i) physically or geographically
proximate to X and (ii) in a special class or category of persons (ie young boys) who were at
particular risk from X's actions: X posed a distinct risk to the victim due to both physical
proximity and class of victim, with the result that the requirement for proximity was
satisfied. The present case was not lawful and was in the category of case exemplified by
Home Office v Dorset Yacht concerning the liability of negligent public custodians for the
criminal acts of third parties in their care. It was fair, just and reasonable for a duty of care
to be imposed. The action should not be dismissed unless it must necessarily fail (Jamieson v
Jamieson 1952 SCHL 44). In claims of damages for alleged negligence it could only be in rare
8
and exceptional cases that an action could be disposed of on relevancy (Miller v South of
Scotland Electricity Board 1958 SC (HL) 20).
Analysis and decision
[15]
In this case a child member of the public was raped and sexually assaulted by a
person who was subject to a supervision order but had been granted unsupervised leave.
These factual circumstances are very similar to those in Thomson v Scottish Ministers, where
an adult member of the public was murdered by a prisoner who had been released on short
leave.
[16]
In Thomson the Inner House held that there was no proximity between the victim and
the Scottish Prison Service, and dismissed as irrelevant an action for damages brought by
the victim's mother in respect of her daughter's death. The history of the development of
this area of the law authorities were considered in detail in Thomson, and there is no need to
repeat that task here. The court held that in order to succeed, the pursuer must establish a
special relationship which exposed the victim to a particular risk of damage as a result of
negligence by the defenders in the context of that relationship or, put in another way, that
the victim was subject of a special or distinct risk as a consequence of the defender's actions
(para [56]). The court was not satisfied that that high test was met (para [57]).
[17]
In my opinion the current case cannot be distinguished from Thomson and the action
falls to be dismissed for the reasons set out in Thomson.
[18]
Thomson falls within the category of the liability of public custodians for the criminal
actions of those in their care (Thomson para [49]). The current case also falls within that
category, as X had been granted unsupervised leave.
9
[19]
In Thomson the court held that the pursuer did not set out a relevant case that the
deceased and the Scottish Prison Service were in a "special relationship" with each other
such that the SPS's actions in relation to the prisoner place her at a greater risk than that to
which the general public were exposed. She did not aver any facts from which it could be
said that the deceased, or a class of persons of which she was a member, was at any special
or distinctive risk as a result of the SPSs actions relative to the prisoner's leave (para [57]).
There was no basis on the factual averments upon which it could have been inferred that
SPS should have considered that (a) any person was at immediate risk of harm beyond the
risk which as a habitual and occasionally violent criminal, he posed to the general public
during his periods at liberty or (b) the deceased or a class of person would be a particular
target of his violence (para [58]). The averment that he posed a danger to persons with
whom he would have dealings during his leave said nothing more than that any person
with whom he came into contact could potentially be at risk from him because of his
underlying recidivism (para [58]).
[20]
The current pursuer, too, fails to set a relevant case on these matters. The pursuer
avers that the defender knew or ought to have known that X posed a real and immediate
risk to young boys whom he would encounter while on unsupervised leave, and that by
deciding to allow him unsupervised leave the defenders breached their duty of care to the
victim. She further avers that as a young boy residing in the vicinity of the residential home,
the victim belonged to a class of persons who were at a special risk of harm as a result of the
defenders' acts and omission in allowing X unsupervised leave, and that the defenders
failed in their duty to take reasonable care to avoid causing unnecessary risk of harm to
children in the community from the actions of X. These averments say little more than that
any child member of the public with whom X came into contact during his unsupervised
10
leave could potentially be at risk from him because of the potential for him to commit
criminal acts. As is set out in Thomson, being a member of the public is not enough to
constitute a distinct and specific class. In my view excluding adult members of the public
makes no difference. The pursuer in Thomson could not have turned her irrelevant case into
a relevant case by narrowing down the class by excluding child members of the public and
only including adult members of the public: merely being members of the public (whether
the adult public or the child public) does not found a special relationship between the
defender and the victim. It makes no difference that the victim attended a primary school
close to the residential home and the offence took place near the school. There are no
averments of a specific duty to pupils of that school, and in any event the offence took place
out of school hours. There is a lack of clarity in the pleadings as to whom the pursuer is
saying are members of the class. The averment that the defenders "failed in their duty to
take reasonable care to avoid causing unnecessary risk of harm to children in the community
from the actions of X" would appear to be defining the class as child members of the public,
and is irrelevant for the foregoing reasons. However the class is defined differently in the
averment that "as a young boy residing in the vicinity of the [residential home], [the victim]
belonged to a class of persons who were at a distinct or special risk of harm." It is difficult
to see why the class is defined as boys when X's behaviour shows a pattern of offending
against girls as well as boys. However even if there were amendmen t to enlarge the class to
young boys or girls living in the vicinity of the home, that would not make it a relevant
distinct and specific class. The location of where the victim resides is not a logical criterion
for defining the class. On that criterion, the class would include a child who lived beside the
residential home who was attacked 10 miles away, but would not include a child who lived
10 miles away but was attacked just outside the residential home. The logical class is ch ild
11
members of the public whom X might come across during leave, and that is not a specific
and distinct class giving rise to a duty of care.
[21]
As this case falls within an existing category, it is not necessary for me to consider the
fairness, justice and reasonableness of the situation, but if it were I would have found that
there was no liability for reasons similar to those in para [58] of Thomson: to leave the
owners of a home and the local authority open to claims from any person who became a
victim of someone released on unsupervised leave would have potentially serious
consequences for the care and rehabilitation of young person's subject to supervision orders
and to society as a whole.
[22]
In my view it is appropriate, as was done in Thomson, to decide this case at procedure
roll rather than allowing it to go to proof before answer. The pursuer has failed to set out a
relevant case and is bound to fail. The defenders are not responsible for the criminal acts of
X. I shall dismiss the action.
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