Erin Leigh Mclean (ap) V. The University Of St Andrews
| Jurisdiction | Scotland |
| Judge | Sheriff R.G. Craig, Q.C. |
| Date | 25 February 2004 |
| Docket Number | A1143/01 |
| Court | Court of Session |
| Published date | 25 February 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| A1143/01
| OPINION OF R. G. CRAIK, Q.C Sitting as a Temporary Judge in the cause ERIN LEIGH McLEAN (A.P) Pursuer; against THE UNIVERSITY OF ST ANDREWS Defenders: ________________ |
Pursuer: Stewart, Q.C., Lindhorst, Advocate, Campbell Smith, W.S.
Defenders: Stacey, Q.C. HBM Sayers
25 February 2004
[1]This action came before me for debate in procedure roll on the basis of the defenders' first plea in law seeking dismissal. Counsel for the pursuer opposed this motion and moved that the case be sent to proof before answer.
The background
[2]The pursuer avers that, in the early part of 1996, she was a student with the defenders. As part of her Russian language course, she avers that she was required to spend six months participating in a full time course in the Ukrainian city of Odessa. The trip was arranged under the auspices of an exchange agreement involving St Andrews, Edinburgh, Glasgow and Odessa Universities. As part of the arrangement, Odessa University was to provide hostel accommodation for the Scottish students. The pursuer and her fellow students arrived in Odessa on 6 February 1996. There was initial concern about the state and security of the hostel accommodation made available by Odessa University for the students' accommodation. Despite this, the pursuer continued with her course for five months until she returned home after the incident aftermentioned.
[3]In Condescendence 5, the pursuer avers that:
"On the evening of 11 June 1996, the pursuer visited a friend in a nearby hostel to watch television. There was no television in hostel number 8 - This being her hostel. A fight broke out. In order to avoid the disturbance a group of students including the pursuer went for a walk in the neighbourhood. The group included the pursuer's boyfriend Iain Chishom. The group walked to the neighbouring Sobachni beach a few hundred metres from hostel number 8. The group returned to hostel number 8 at about 2.00am on 12 June. On the way back to hostel number 8 from the beach, the pursuer and Chishom were attacked by a group of three Russian sailors. Chishom was beaten and then forced to watch as two of the other sailors raped the pursuer. As a result the pursuer sustained the loss, injury and damage hereinafter condescended upon."
It is on the basis of the injury averred, that the pursuer seeks to have the defenders found liable to her in the sum of damages concluded for.
[4]The defenders' position in this regard is that:
"The circumstances of any alleged incident involving the pursuer are not known and not admitted"
Various calls are made seeking further specification in relation to the incident and the positive averment is made (answer 5 between C and D) "The beach area was isolated and was closed to the public from 11pm. It was an area which the pursuer had been warned not to visit during the hours of darkness". The defenders continue (at letter F):
"The beach in question is approximately three quarters of a mile from hostel 8 and there would be no good reason for the pursuer to walk to the beach as a result of a disturbance in the hostel."
The pursuer denies these averments and, in turn, at condescendence 5, page 16F, calls upon the defenders to specify when, by whom, and in what circumstances, the pursuer had been warned that the beach where the rape occurred was an area which she should not visit in darkness.
[5]On a more general basis, the pursuer avers in her condescendence 3 that the defenders and their representatives were aware that the Ukraine area was dangerous and she proceeds to elaborate her reasons in that condescendence. At letter F, she avers: "By the end of 1995 Ukraine was in political, economic and social crisis. Ukraine had the highest unemployment, the lowest minimum wage and the greatest poverty in Eastern Europe. Over 90% of the population was below the poverty line. There was pervasive lawlessness. A black economy (not including drug trafficking and prostitution) accounted for 45% of national output. All public institutions including the armed services, security services, police forces, universities and medical services were infested with bribery, corruption and criminality. Street crime went substantially unpoliced. Western foreigners were particularly targeted by criminals. There was a crime explosion and the rate of detection was falling. Odessa had one of the highest crime rates in Ukraine. There was pervasive lawlessness in the city. According to Dr Keys'" (the defenders' representative) "briefing note for the exchange, the Odessa region was dangerous particularly because of the influence of the former KGB and the 'Mafia'. There was a known problem for personal safety for foreign visitors. All of this was known or should have been known to the defenders. In reply, the defenders point out that the briefing paper referred to by the pursuer included a paragraph: "The law and order situation in the Capitals, if not in Odessa itself, may leave something to be desired. In particular you should not wander the streets by yourself at night or attend nightclubs which are infested by members of the Mafia"
[6]Against this factual background, senior counsel for both parties made lengthy submissions.
The defenders' submissions
[7]Senior counsel for the defenders pointed out that this was a case where the pursuer was claiming that the defenders were liable to her in damages for an injury caused by third parties (the alleged Russian seamen), unrelated in any way to the parties to the action. The basis upon which she sought to do this was not particularly clear. She pointed to the averments of fault in condescendence 6:
"It was the defenders' duty to take reasonable care for the welfare and safety of their students such as the pursuer in the course of their studies. It was their duty to take reasonable care not to expose their students including the pursuer unnecessarily to the risk of assault, rape included, in the course of their studies. It was their duty to take reasonable care to ensure that there was no unreasonable risk of assault before assigning the students, including the pursuer, to off-campus locations for study purposes. It was their duty in the exercise of reasonable care, not to assign students to off-campus locations for study purposes unless they had cause to be satisfied that there was no such risk. Separatim it was their duty not to assign students to off-campus locations for study purposes where they knew of such a risk. There was an unreasonable risk of assault, rape included, in Odessa given the pervasive lawlessness. The defenders had no cause to be satisfied that there was no such risk."
[8]So, senior counsel continued, this was not a claim based on something that had happened to the pursuer on the Odessa campus or in the hostel to which she had been assigned. It was a claim based on an attack which had happened to her in a public place, some distance...
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