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Scotland: Damages claim dismissed

17 May 2022

Read our case review in relation to a damages claim against a care home that allowed a high-risk resident unsupervised leave.

A v B & C [2022] CSOH 34 

Facts

  • The defenders were responsible for providing residential care to a 16-year-old male, X.
  • X's records noted a history of sexualised behaviour.  In 2018 he was assessed as "high risk".  In May 2018 the defenders agreed to allow X unsupervised leave of two hours' per day after he turned 16.  
  • On 14 June 2018, during his two hours of leave, X went to an area around a primary school around 10 minutes from the care home.  X lured a young boy to a graveyard while pretending to be a police officer and raped him. He subsequently pled guilty to a charge of rape in the High Court and was sentenced to 28 months’ detention.
  • An action was raised by the child’s grandmother, A, against care home B Ltd and local authority C. The pursuer sought to establish that the defenders were liable in negligence for the criminal actions of X.
  • DWF argued that no duty of care existed as there was no relationship of proximity between victim and defender.

Decision

Lord Ericht dismissed the action after finding that B and C did not owe a duty of care to the victim.  He said:

“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.  [The pursuer’s] averments say little more than 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… [but] being a member of the public is not enough to constitute a distinct and specific class... giving rise to a duty of care."

Lord Ericht concluded:

“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.”

Comment

This is a helpful restatement of the law as set down in previous cases including Thomson v the Scottish Ministers.  A defender is not liable for the criminal actions of another unless the pursuer can establish a special relationship of "proximity" between the pursuer and defender: in other words, the pursuer must be able to establish that he was at a special and distinct risk as a consequence of the defender's actions.  Merely being a member of the public is not enough to constitute a special relationship.  

It is useful for insurers to remember that the merits of the insured's actions are irrelevant if no duty of care exists between the pursuer and the insured.  

Further Reading