JWE alleged that when he was a vulnerable 15‑year‑old, he attended a youth group run by LGBT Youth Scotland (LGBTYS). He claimed that during his attendance he was groomed by staff members who gave him cigarettes, alcohol, and false ID, introduced him to adult venues, and later met older men who sexually abused him.
JWE raised an action against LGBTYS . The action for damages was based on the alleged failure of LGBTYS to safeguard him; that they were vicariously liable for the acts of their employee SG, who took him to adult venues and introduced him to older men who sexually abused him.
The case called for debate on preliminary issues (strike out) before Lord Braid. The defendant initially sought dismissal of the case, however, at the hearing the issues at debate were limited to:-
The claimant claimed that he was “groomed” by staff who supplied cigarettes, alcohol, and introduced him to adult venues. As a result of this grooming, he was ultimately subjected to assaults.
The claimant accepted that there was no authority which demonstrated the existence of a duty not to groom another person, or a duty not to introduce another person to exploitative environments. However, SG’s grooming of the claimant and his introduction of him to adult venues amounted to a breach of duty. SG’s conduct actively created the circumstances in which third‑party males were able to assault the claimant. This is not a case of mere omission; rather, SG actively encouraged the claimant into situations of obvious risk.
Grooming is a criminal offence; however, Scots law does not currently recognise grooming as a tort. However, nonconsensual sexual activity is an actionable civil wrong, and so if sexual activity arose from grooming, there would be an issue relating to consent. Accordingly, the court ought to hold that a sexual assault had happened.
If the court did accept that a tort of grooming ought to or indeed does exist, the extent to which it arose in the present case and whether there had been any fraud or deceit amounting to a breach of duty, was a matter for evidence.
Lord Braid accepted that this matter required evidence to be heard before it could be determined and so this aspect should be allowed to proceed to trial.
The two-stage test for vicarious liability was most recently considered in the case of Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB. The first stage looks at the relationship between the parties, and the second stage looks at the close connection between the wrongful act and what the wrongdoer had been employed to do.
It was accepted by the defendant that the first stage of the test was satisfied (proximity of relationship e.g. employment), however, there were issues in relation to stage two (close connection). Were SG’s alleged actions (grooming, supplying alcohol, giving fake ID, introducing the claimant to bars) sufficiently connected to his role?
The defendant accepted that this is a fact sensitive issue. However, there was clearly an insufficiently close connection between the work that the employees were employed to do, and the acts of abuse complained of. None of the acts of abuse were said to have occurred whilst SG was acting in the course of his employment.
The court held that when assessing stage two, the issues are fact sensitive, and the court is required to have regard to “all the circumstances”.
The question of whether LGBTYS are held to be vicariously liable for the acts of their employees can be determined only after the court has heard evidence. This aspect was allowed to proceed to trial.
The claimant sought to impose liability on LGBTYS in respect of the abuse by older men as it was fair and reasonable to impose upon the defendant a duty to have prevented the claimant from being harmed by third party abusers. In addition, the harm arose because of the deliberate introduction by SG to environment and abusers.
The defendant’s argued that there was no duty on the defendant to guard against deliberate wrongdoings of a stranger. Generally, the law is reluctant to impose duties on person A to prevent harm by third party C. However, it was accepted that there were certain exceptions to this general rule.
(1) where there was vicarious liability.
(2) where there was an obligation to supervise the third party.
(3) where the defendant created the risk of danger; and
(4) where there was an assumption of responsibility.
However, none of the exceptions were applicable in this case.
Lord Braid noted that mere foreseeability of harm alone does not create a duty to protect a person from harm caused by another. However, the House of Lords recognised that the law could impose such duties may arise in certain situations (Mitchell v Glasgow City Council). The court must assess whether the circumstances are sufficient to impose a legal duty having regard to the facts and circumstances of each case.
In the matter at hand there was an existing relationship between the claimant and defendant through the youth group.
It follows that, in light of the authorities, it cannot be said that, at this stage, the claimant’s case is bound to fail. A decision as to whether any liability on the part of the defendant extends to the acts of third parties can only be made after evidence has been led.
The matter will now proceed trial.
The courts are reluctant to dismiss sensitive claims at a preliminary stage without giving the claimant the opportunity to lead evidence in support of their case.
In JWE, the court has not yet determined whether grooming constitutes a separate actionable wrong (delict/tort). Grooming is often a multistage process which occurs when person builds a relationship with a child, young person or vulnerable adult to abuse or manipulate them. The process of grooming occurs over time and is non-physical harm. Whether that constitutes a specific tort in the absence of a physical assault will be determined by evidence in court.
Georgia Wilkie – Paralegal
Heather Morrison - Solicitor
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