A.m. V. Reverend Joseph Hendron And Others
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Neutral Citation | [2005] CSOH 121 |
| Date | 13 September 2005 |
| Docket Number | A234/03 |
| Court | Court of Session |
| Published date | 13 September 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 121 | |
| A234/03 A1523/00
| OPINION OF LADY PATON in the cause A.M. (AP) Pursuer; against REVEREND JOSEPH HENDRON AND OTHERS Defenders: ________________ |
Pursuer: McEachran, Q.C., Stirling, Advocate; Drummond Miller, W.S.
First to Eighth Defenders: Clancy, Q.C., E.G. Mackenzie, Advocate; Burness W.S.
Tenth to Fifteenth Defenders: Hanretty, Q.C.; HBM Sayers
Sixteenth Defender: No appearance
Eighteenth Defender: Moynihan, Q.C., Mure, Advocate; Solicitor to the Scottish Executive
13 September 2005
Abuse in a residential school
[1]The pursuer was born on 15 September 1953. In June 1963 when aged 91/2 he was committed to an approved school - St. Ninian's, Gartmore, Stirling. St. Ninian's was a residential school staffed mainly by monks from the De La Salle order based in Oxford. The pursuer remained at that school until autumn 1966. The school ultimately closed in 1982.
[2]The pursuer is now an adult. He seeks damages in respect of sadistic, humiliating and degrading abuse suffered at St. Ninian's, beginning immediately on his arrival when he was "assaulted by Brother Thadius [the headmaster] in front of a social worker": Article 6 of Condescendence, at page 37E. The pursuer names the main perpetrators of the abuse as Brother Benedict (the sixteenth defender) and Brother Thadius, the headmaster (not formally convened as a defender). The pursuer avers at the end of Article 3 of Condescendence at page 25B-C:
"Said treatment was perpetrated by the brothers of the De La Salle order at the school and by carers employed by the defenders and for whom the defenders are responsible."
[3]In 2003 Brother Benedict was tried in the High Court of Justiciary. On 20 June 2003, he was convicted of assaulting the pursuer on various occasions between 7 June 1963 and 31 December 1964. He was sentenced to two years imprisonment.
[4]In this civil action for damages, the pursuer sues seven named monks "as representing the congregation or order of De La Salle Brothers" (the first to seventh defenders); an eighth defender described as "The Congregation of the De La Salle Brothers"; five named individuals "as representing the managers of St. Ninian's School" (the tenth to fourteenth defenders); a fifteenth defender described as "the Managers of St. Ninian's School"; Brother Benedict in person (the sixteenth defender); and an eighteenth defender, the Lord Advocate "as representing the statutory successors to the Social Work Services Group and the Scottish Education Department" (the SED). The former ninth and seventeenth defenders no longer appear as parties to the action.
[5]Counsel for the eighteenth defender advised that the Social Work Services Group was not involved during the pursuer's time at St. Ninian's. Furthermore, the original SED (established in 1872) had been abolished in 1939 as a result of the Reorganisation of Offices (Scotland) Act 1939. Its functions had been transferred to an administrative department of the Secretary of State for Scotland. Counsel for the eighteenth defender very properly did not take issue with the designation or identity of the eighteenth defender, and was content to proceed on the understanding that the pursuer's references to the SED were intended as references to the appropriate administrative department of the Secretary of State.
[6]During a debate, counsel for the pursuer sought decree in absence against Brother Benedict, and a proof before answer against the remaining defenders. There was no appearance for Brother Benedict. Counsel for the monks, counsel for the managers, and counsel for the SED each sought dismissal of the case so far as directed against those defenders on grounds of relevancy, specification and time bar. Failing dismissal, each sought a proof before answer, preferably a preliminary proof restricted to the question of time bar (with, in the managers' case, an additional preliminary proof restricted to the question of the existence of the managers either as individuals in post at the relevant time, or as some sort of unincorporated association). If no preliminary proofs were to be ordered, a proof before answer at large should be allowed, excluding certain averments relating to civil liability based on The Approved Schools (Scotland) Rules 1961 (S.I. 1961 No. 2243), and certain other averments added by amendment during the debate and relating to the managers' insurance arrangements.
Decree in absence against Brother Benedict
[7]Articles 3, 4, and 5 of Condescendence set out details of the abuse inflicted upon the pursuer mainly by Brother Benedict. Senior counsel for the pursuer referred to the relevant criminal conviction. He moved for decree in absence against Brother Benedict in the sum of £50,000, extract to be superseded for fourteen days. As indicated above, there was no appearance for Brother Benedict. There was no opposition by counsel acting for other defenders. Accordingly I granted the pursuer's motion.
The organisation and supervision of the school
[8]The pursuer offers to prove that the SED was responsible for approved schools such as St. Ninian's during the 1960s. Subsequently, in the late 1960s or early 1970s, the responsibility for approved schools was transferred from the SED to the Social Work Services Group.
[9]The SED's responsibility included the following functions:- In terms of section 83 of the Children and Young Persons (Scotland) Act 1937, the SED issued a Certificate of Approval to a chosen school. In terms of section 72(2), the SED had power, in certain circumstances, to select the approved school to which a child should be sent. In terms of section 90(3) the SED was involved in funding such schools. In terms of section 106 the Secretary of State and the SED could appoint inspectors to review the progress of pupils. In terms of section 107, sums could be paid from the exchequer on stated conditions towards the expenses of managers of an approved school. In terms of paragraphs 6(2) and 9 of the Second Schedule to the 1937 Act (effective until 1 November 1963), the Secretary of State could order that pupils be discharged, or transferred to another school, or placed in the community on licence. In terms of sections 18 and 21 of the Criminal Justice (Scotland) Act 1963 (effective from 1 November 1963 onwards), the Secretary of State could order the release of a pupil, or give the school managers directions about the running of the school, or (if necessary) withdraw the Certificate of Approval. In terms of section 22 of the 1963 Act, the Secretary of State could regulate the constitution and proceedings of the school managers, and appoint new managers.
[10]During the pursuer's time at St. Ninian's school, a Mr. Murphy held the post of inspector. School managers were also in post. They were unpaid members of the community, who visited the school from time to time, attending meetings at which they made management decisions. The managers had certain statutory powers in terms of The Approved Schools (Scotland) Rules 1961 (S.I. 1961 No.2243), which provided inter alia as follows:
MANAGEMENT
4. The Managers shall manage the school in the interests of the welfare, development and rehabilitation of the pupils and for this purpose they shall take into consideration any report which may be communicated to them by or on behalf of the Secretary of State ...
STAFF
10. (1) Subject to the approval of the Secretary of State, the Managers shall, in consultation with the Headmaster, determine the number, type and qualifications of staff to be employed by them.
(2) The Managers shall be responsible for the appointment and, subject to the provisions of section 81 of the Education (Scotland) Act 1946, suspension and dismissal of staff. In exceptional circumstances, the Headmaster may suspend a member of staff from duty: such suspension shall be notified to the Managers within 24 hours.
(3) Where the character or conduct of a member of staff leads directly or indirectly to his resignation or to the termination by the Managers of his employment or to his contract of employment not being renewed on its expiry, the Managers shall forthwith submit a full report of the circumstances to the Secretary of State ...
(6) Staff, other than minor domestic staff, shall be appointed under contract of service or, in the case of a school provided by an education authority, under the authority's normal arrangements for the engagement of staff ...
[11]In addition to the inspector and managers referred to above, there were teachers and carers at the school. The teachers were mainly drawn from the De La Salle Brothers. The implication in Article 1 of Condescendence is that the SED paid a subvention to the De La Salle mother house in Oxford in respect of monks supplied as teachers and carers. It is not clear whether any contracts of employment, written or verbal, were entered into, or with whom (although the 1961 Rules suggest that the school managers ought to have been parties to any such contract). The monks and carers lived in the school premises. They taught the pupils, and supervised them day and night. The monks were dependent on the bursar of the De La Salle order for any income (Article 1 of Condescendence).
Amendments in the course of the debate
[12]The debate took place in stages, on 8 to 11 June, 5 July, 30 and 31 August, 27 September, and 13 December 2004. During the debate, various amendments were made to the pleadings.
[13]On the second day of the debate (9 June 2004), following upon the opening speech by junior counsel for the first to eighth defenders, senior counsel for the pursuer amended the pursuer's second plea-in-law relating to vicarious liability by deleting the word "employees" and substituting the word "persons". He explained that the vicarious liability relied upon by the pursuer was not restricted to employment. There were other situations in which vicarious liability could arise, for example,...
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