- 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.
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.”
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.