AM v Reverend Joseph Hendron and others: OHCS 13 Sep 2005

Serious abuse was said to have been inflicted by monks of the De La Salle order on those in their charge at an approved school in Scotland. The former pupil claimant contended that the SED owed him a non-delegable duty which entitled him to financial redress for his suffering.
Held: The case could not be dismissed for irrelevancy.
Lady Paton said: ‘In the present case, I have ultimately concluded that the reasoning of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215, the developing jurisprudence relating to the concept of a non-delegable duty of care in certain contexts, and underlying policy reasons, make it necessary for the courts to recognise the existence of a common law non-delegable duty of care on the part of a government body such as that represented by the eighteenth defender in respect of children allocated by the government to government-created residential schools such as St. Ninian’s. Such a non-delegable duty of care may be particularly relevant where it is not possible to establish more traditional liability such as direct or vicarious liability. In the context of a non-delegable duty of care, liability may arise even where there has been no fault on the part of the government body.
In reaching that conclusion, I have not overlooked the concerns expressed by Gleeson C.J., Callinan J., and Gummow and Hayne J.J. in Lepore, when they point out that an unrestricted development of the concept of a non-delegable duty of care could result in an unacceptable extension of liability. I also accept the force of Lord Bridge’s observations in D and F Estates Ltd v Church Commissioners for England [1989] 1 A.C. 177, at pages 210D-E. However it seems to me that, in the context of abuse by staff of inmates of residential establishments, those concerns and observations are met and answered by the guidelines laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] A.C.215′ and
‘the underlying policy reasons referred to in paragraph [113] above include a perception that it is unacceptable for a government body responsible for a system of residential schools to have no liability for abuse inflicted on pupils by staff whose task it is to care for, supervise, or instruct those pupils, on the technical ground that certain functions (such as entering into contracts of employment with members of staff) have been delegated to others such as unpaid members of the community performing what might be seen as civic duties. If the obvious link of employer-employee is not clearly available in relation to the government body, then the pupil is left to attempt to recover damages in respect of injuries suffered at the hands of those placed in authority over him, from others fulfilling certain functions within the system. There is no reason in principle or precedent why a government body should in such circumstances be free of liability for abuse in a situation such as is envisaged in Lister – that is, where there is a close connection between the work which the staff were engaged to perform and the type of abuse inflicted. In such circumstances, the concept of a non-delegable duty of care at common law is in my view appropriate, and would be fair, just and reasonable to impose. The medical context offers a useful parallel, in particular the dicta of Lord Denning in Cassidy v Ministry of Health [1951] 2 K.B. 343; the observations of Lord Phillips M.R. at paragraph 63 of A v Ministry of Defence [2004] EWCA Civ 641; and the views of Mason J. in Introvigne, referred to in paragraphs [23] and [25] of New South Wales v Lepore.’
Lady Paton
[2005] ScotCS CSOH – 121
Bailii, ScotC
Cited by:
CitedWoodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
See AlsoMcE v Hendron and de La Salle Brothers SCS 11-Apr-2007
(Opinion of Lord Osborne) The claimant sought damages saying that he had suffered abuse while a pupil at the approved school managed by the respondents. The claim was a test case as there were pending some 150 additional cases where abuse was . .
CitedWoodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .

These lists may be incomplete.
Updated: 25 January 2021; Ref: scu.230233