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
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Ampersand Advocates welcomes 2 new members: Sarah McWhirter and Tony Convery
Ampersand is delighted to welcome Sarah McWhirter and Tony Convery to the stable, following their call to the Bar on Friday, 27th June 2025.
On the new members’ arrival, Stable Director Isla Davie KC, said: “We are delighted that Sarah and Tony are joining Ampersand. They are already highly regarded as lawyers, and this is the start of incredibly promising careers for both at the Bar. Not only does their considerable experience lend itself well to our existing practice areas, but they are also lovely people and we look forward to welcoming them into the stable.”
Ampersand’s Practice Manager, Alan Moffat added “I am delighted to welcome our newest members of Ampersand. Their addition to our set brings the membership to 61 and the experience which each of them brings is a fantastic fit for Ampersand’s core areas of practice. They will be a real asset to those looking to instruct counsel. I am sure that joining Ampersand will offer them rewarding opportunities and collaborative support”.
Sarah and Tony featured in Ampersand’s “& the Devils in the Detail” Hey Legal Live chat in May. You can watch clips of Sarah and Tony discussing their practice areas here.
Sarah McWhirter
Sarah specialises in clinical negligence and personal injury actions. She has extensive experience in complex and high-value claims. She has particular expertise in birth injury, spinal injury, amputation and fatal claims.
Prior to calling to the Bar, Sarah specialised in clinical negligence and personal injury work for over 10 years. Latterly, Sarah was Head of Clinical Negligence (Scotland) and a Principal Lawyer (partner) at a large UK-wide firm. She was ranked ‘Band 1’ in Chambers and Partners for Clinical Negligence: Mainly Claimant (2025). Sarah has experience of representing both pursuers and defenders.
As a solicitor Sarah, appeared in the All-Scotland Sheriff Personal Injury Court and regularly dealt with cases raised in the Court of Session.
During devilling, Sarah enhanced her existing experience in clinical negligence and personal injury work. She expanded her knowledge of specialist personal injury claims, including industrial disease and historical child abuse. She also gained experience in other areas of law, most notably mental health, professional regulation and public law.
Sarah is the Course Organiser for the Personal Injury elective course on the Diploma in Professional Legal Practice at the University of Edinburgh.
Tony Convery
Tony specialises in commercial litigation and public law. He calls to the Bar as the Lord Reid Scholar. That Scholarship is awarded annually to the outstanding candidate. He previously worked at a leading commercial law firm.
Tony has considerable commercial litigation experience, including in professional negligence, company and property law disputes. He also has experience of group proceedings, procurement litigation and proceedings before the Competition Appeal Tribunal.
Tony has a broad public law practice. As well as core constitutional and administrative law, Tony has experience in: (i) equality and human rights, (ii) planning and (iii) information law (including data protection and freedom of information). He has a wealth of experience in advising on legislative competence challenges.
Tony also has experience of acting in environmental, regulatory, education and media law disputes, as well as inquiries. He provides advice on trade/financial sanctions and related regulatory schemes.
Tony was a research assistant to Professor Jim Murdoch CBE in relation to the fourth edition of the leading textbook, Human Rights Law in Scotland. He has also published in his own right. He is a tutor at the University of Glasgow.
For further information about their practices view their profiles on the Ampersand Advocates website: Our People – Ampersand Advocates
To instruct either of them, please contact the Ampersand Clerking Team: ampersandclerks@advocates.org.uk.
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Sarah McWhirter
Sarah McWhirter specialises in clinical negligence and personal injury actions. She has extensive experience in complex and high-value claims. She has particular expertise in birth injury, spinal injury, amputation and fatal claims.
Prior to calling to the Bar in 2025, Sarah specialised in clinical negligence and personal injury work for over 10 years. Latterly, Sarah was Head of Clinical Negligence (Scotland) and a Principal Lawyer (partner) at a large UK-wide firm. She was ranked ‘Band 1’ in Chambers and Partners for Clinical Negligence: Mainly Claimant (2025). Sarah has experience of representing both pursuers and defenders.
As a solicitor Sarah, appeared in the All-Scotland Sheriff Personal Injury Court and regularly dealt with cases raised in the Court of Session.
During devilling, Sarah enhanced her existing experience in clinical negligence and personal injury work. She expanded her knowledge of specialist personal injury claims, including industrial disease and historical child abuse. She also gained experience in other areas of law, most notably mental health, professional regulation and public law.
Sarah is the Course Organiser for the Personal Injury elective course on the Diploma in Professional Legal Practice at the University of Edinburgh.
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Personal Injury Conference 2025
*** Law Society of Scotland event ***
Updates and varied insights on personal injury law and practice, brought to you by legal practitioners and experts in the medical field.
Speakers will update you in the latest legislative and case law developments and provide you with guidance and practical updates on specific areas of personal injury work in addition to perspectives from medical professionals.
Time for discussion is not just provided, it’s actively encouraged, and we’ll ensure you have time to engage with our expert speakers.
Learning outcomes:
- Hear about the latest in Personal Injury case law
- Gain insight from an expert General Practitioner in terms of PI cases and also hear from an expert Consultant in Emergency Medicine.
- Learn about the most recent recommendations and anticipated changes by the Scottish Law Commission
- Hear from two Senior Counsel about civil rape claims and recent historic abuse cases.
- Receive helpful tips from an experienced solicitor about to become Junior Counsel
- Understand new and upcoming legislative changes that may impact you as a PI practitioner
Speakers include Ampersand’s Fiona Drysdale KC with a session on recent civil rape cases, and current devil Sarah McWhirter, who calls on 27th June 2025, with a session on Instructing Counsel and becoming counsel.
Full details and how to sign up can be found on the Law Society of Scotland’s website here.
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K v P [2025] SC HAM 26
Fiona Drysdale KC was successful in this civil rape case in which she acted for the pursuer. The case was before Sheriff Speir in the Sheriff Court at Hamilton. This was a single complainer rape case which had not been taken forward by the authorities so there had been no prior criminal case. This case post dates the determination by the full bench in Lord Advocate’s Reference No 1 of 2023, 2024 JC 140 and PG and JM [2024] HCJAC 43 on de recenti statements. There was a delay in disclosure of the rape by the pursuer due to a medical condition so the statements were relied on as supporting evidence of lack of consent showing a consistency of approach rather than as classic de recenti statements. There was also an admission on WhatsApp.
The case has just been published on the Scot Courts website and the decision can be viewed here: https://scotcourts.gov.uk/media/yzdhf5gl/2025scham26-k-against-p.pdf.
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K v P [2025] SC HAM 26
Civil rape case before Sheriff Speir in the Sheriff Court at Hamilton. This was a single complainer rape case which had not been taken forward by the authorities so there had been no prior criminal case. This case post dates the determination by the full bench in Lord Advocate’s Reference No 1 of 2023, 2024 JC 140 and PG and JM [2024] HCJAC 43 on de recenti statements. There was a delay in disclosure of the rape by the pursuer due to a medical condition so the statements were relied on as supporting evidence of lack of consent showing a consistency of approach rather than as classic de recenti statements. There was also an admission on WhatsApp.
The case has just been published on the Scot Courts website and the decision can be viewed here.
Fiona Drysdale KC acted for the successful pursuer, instructed by Thompson Family Law.
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