A young adult resided in a care home. He had a known history of committing sexual offences against minors. The care home was run by the First Defenders. The Second Defender was the local authority. When the young adult was on unsupervised leave from the care home, he raped and sexually assaulted a child. The child had been playing in the grounds of a primary school around 10 minutes away from the care home where the young adult was resident.
Who was liable for the physical and psychiatric injuries suffered by the child as a result of the rape and sexual assault? Was the care home liable? Was the local authority, who were responsible for the young adult's accommodation liable? Did either the care home or the local authority owe a duty of care to the child? Morton Fraser successfully defended the action for the Second Defender. Given the subject matter of the case, an Anonymity Order is in place.
Comment
The decision in this case is a useful re-iteration of the law in Scotland about the test for when a duty of care is owed to a victim of a criminal act.
The tripartite test for whether a duty of care exists was established by the well-known case of Caparo Industries v Dickman (1990) 2 AC 60: for a duty of care to exist there must be a foreseeable risk of damage, a proximate relationship between the parties, and it should be fair, just and reasonable to impose a duty of care in the circumstances. This Caparo Test is a high bar for pursuers to overcome.
The Defenders successfully argued in A v B Limited and C Council that the circumstances of this case were similar to the case of Thomson v Scottish Ministers.
In Thomson, the pursuer's mother was killed by a prisoner when he was on a short period of leave from prison. Thomson unsuccessfully sued the Scottish Ministers (as representing the Scottish Prison Service) alleging that decisions taken by the prison service leading to the prisoner being allowed prison leave were negligent. It was held in Thomson that there was no special relationship between the victim's family and the Defender. The circumstances did not give rise to an additional degree of risk over and above the risk faced by the general public by prisoners on leave from prison. To succeed, a Pursuer must establish that there was a special relationship between the victim and the Defender as the victim was the subject of a special or distinct risk as a consequence of the Defender's actions.
The fact that a criminal act is carried out by a perpetrator therefore does not mean that a duty of care exists upon which a victim can base a civil claim for damages.
It is anticipated that further claims where the existence of a duty of care between parties is disputed will come before the Scottish Courts in the future, particularly given the recent rise in historic abuse claims.
Arguments
In A -v- B Limited and C Council, the Court considered whether the Defenders owed a duty of care to the child victim. The Pursuer, First Defender and Second Defender all put forward arguments about the extent of the duty of care.
The Pursuer argued that the Defenders owed a duty of care to the victim for the young adult's criminal acts under common law. The Defenders failed in their duty to have adequate regard to the risk posed by him. The victim was at special risk of harm as the victim lived near the care home. Proximity arose as the victim was geographically proximate, and in a special class/category of persons (young boys) at particular risk given the young adult's history of previous sexual offences against minors. The Defenders were therefore negligent in allowing the unsupervised leave. It was fair, just and reasonable for a duty of care to be imposed.
The First Defender argued that the care home did not owe a duty of care to the victim. There was no relationship between the First Defender and the victim to establish a duty of care. The fact that the victim lived in the vicinity of the care home was insufficient to establish a duty of care. No special relationship/risk existed between the victim and the First Defender in this case. The age, sex and geographical location of the victim cannot create a relationship of proximity to put the victim in the category of "special risk" to give rise to a duty of care.
The Second Defender also argued that they did not owe a duty of care to the victim. There was no special relationship between the victim and the Second Defender giving rise to a such a duty of care. The fact that the victim attended a school near the care home did not in itself give rise to a relationship of sufficient proximity between the victim and the Second Defender. To impose a duty of care in these circumstances would not be fair, just and reasonable. It would mean the Second Defenders owing a duty of care to everyone who might be harmed by anyone for whom the Second Defenders had statutory duties or responsibilities. Such a duty would be novel, too wide and too onerous.
The Decision
In his decision, Lord Ericht observed that the factual circumstances of this case were "very similar" to the circumstances of Thomson v Scottish Ministers in which a member of the public was murdered by a prisoner who had been released on short leave. In Thomson, it was held that to succeed in their claim, a 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".
Lord Ericht said of the present case that “[The pursuer’s] averments say little more than that any child member of the public with whom X came into contact during his unsupervised 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.”
He went on to say: “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.”
Lord Ericht concluded that the Defenders were not responsible for the criminal acts of X. No duty of care was owed by the Defenders to the victim.
The action was therefore dismissed by Lord Ericht.
