Recent Cases
8 August, 2025
NM v (FIRST) GRAEME HENDERSON and (SECOND) SCOTTISH AMBULANCE SERVICE [2025] CSIH 22
Ampersand’s Isla Davie KC recently acted for a claimant (NM) against the Scottish Ambulance Service (SAS) with her junior Carla Fraser in a successful appeal against part of the case being struck out at debate. The appeal court allowed the whole claim to proceed to proof against SAS as vicariously liable for the unlawful actions of their employee and also allowed a direct common law case against SAS for failing to properly investigate a previous complaint against him. Ampersand’s Alan Dewar KC acted for the First Defender and Respondent.
In a significant decision handed down by the Inner House of the Court of Session in NM v Graeme Henderson and Scottish Ambulance Service ([2025] CSIH 22), the court has reaffirmed the potential scope of vicarious liability in the context of abuse perpetrated by an employee. It has also underlined the important distinction between a case being novel on its facts as opposed to novel in legal principle.
The pursuer (NM) advanced claims arising from serious allegations of sexual and physical abuse by a former ambulance technician, Graeme Henderson. Although the abuse occurred outside the workplace and while Henderson was off duty, the pursuer argued that his employment with SAS was a key factor in enabling and legitimising the trust he exploited. She also claimed directly against SAS for failing to properly investigate a previous serious complaint against the employee.
The Lord Ordinary at debate struck out the claim of direct negligence against SAS relating to the alleged failure to investigate Henderson’s conduct prior to the abuse taking place on the basis that it formed a novel case in law and not one which should be allowed. , However, he allowed the vicarious liability claim to proceed to proof on the basis that evidence was required to establish the facts. The pursuer appealed the decision not to allow the direct case and SAS cross appealed the decision to allow the case based on vicarious liability to proceed.
On appeal the Inner House overturned the decision that the direct case was novel and held that it fell within well-established delictual principles. Further, the court agreed with the Lord Ordinary that the factual matrix pled for the pursuer raised a realistic prospect that Henderson’s employment created the opportunity for abuse and a “close connection” sufficient to engage vicarious liability principles and evidence should be allowed on that aspect. The pursuer was entirely successful on appeal and her case has been allowed to proceed to proof in its entirety.
Opinion of the court, delivered by Lady Wise, can be viewed here.
Isla Davie KC and Carla Fraser were instructed by Drummond Miller LLP
Alan Dewar KC was instructed by Urquharts (for Livingston Brown, Glasgow