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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLean v. University St Andrews [2004] ScotCS 45 (25 February 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/45.html Cite as: [2004] ScotCS 45 |
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OUTER HOUSE, COURT OF SESSION |
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A1143/01
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OPINION OF R. G. CRAIK, Q.C Sitting as a Temporary Judge in the cause ERIN LEIGH McLEAN (A.P) Pursuer; against THE UNIVERSITY OF ST ANDREWS Defenders:
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Pursuer: Stewart, Q.C., Lindhorst, Advocate, Campbell Smith, W.S.
Defenders: Stacey, Q.C. HBM Sayers
25 February 2004
[1] This action came before me for debate in procedure roll on the basis of the defenders' first plea in law seeking dismissal. Counsel for the pursuer opposed this motion and moved that the case be sent to proof before answer.The background
[2] The pursuer avers that, in the early part of 1996, she was a student with the defenders. As part of her Russian language course, she avers that she was required to spend six months participating in a full time course in the Ukrainian city of Odessa. The trip was arranged under the auspices of an exchange agreement involving St Andrews, Edinburgh, Glasgow and Odessa Universities. As part of the arrangement, Odessa University was to provide hostel accommodation for the Scottish students. The pursuer and her fellow students arrived in Odessa on 6 February 1996. There was initial concern about the state and security of the hostel accommodation made available by Odessa University for the students' accommodation. Despite this, the pursuer continued with her course for five months until she returned home after the incident aftermentioned. [3] In Condescendence 5, the pursuer avers that:"On the evening of 11 June 1996, the pursuer visited a friend in a nearby hostel to watch television. There was no television in hostel number 8 - This being her hostel. A fight broke out. In order to avoid the disturbance a group of students including the pursuer went for a walk in the neighbourhood. The group included the pursuer's boyfriend Iain Chishom. The group walked to the neighbouring Sobachni beach a few hundred metres from hostel number 8. The group returned to hostel number 8 at about 2.00am on 12 June. On the way back to hostel number 8 from the beach, the pursuer and Chishom were attacked by a group of three Russian sailors. Chishom was beaten and then forced to watch as two of the other sailors raped the pursuer. As a result the pursuer sustained the loss, injury and damage hereinafter condescended upon."
It is on the basis of the injury averred, that the pursuer seeks to have the defenders found liable to her in the sum of damages concluded for.
[4] The defenders' position in this regard is that:"The circumstances of any alleged incident involving the pursuer are not known and not admitted"
Various calls are made seeking further specification in relation to the incident and the positive averment is made (answer 5 between C and D) "The beach area was isolated and was closed to the public from 11pm. It was an area which the pursuer had been warned not to visit during the hours of darkness". The defenders continue (at letter F):
"The beach in question is approximately three quarters of a mile from hostel 8 and there would be no good reason for the pursuer to walk to the beach as a result of a disturbance in the hostel."
The pursuer denies these averments and, in turn, at condescendence 5, page 16F, calls upon the defenders to specify when, by whom, and in what circumstances, the pursuer had been warned that the beach where the rape occurred was an area which she should not visit in darkness.
[5] On a more general basis, the pursuer avers in her condescendence 3 that the defenders and their representatives were aware that the Ukraine area was dangerous and she proceeds to elaborate her reasons in that condescendence. At letter F, she avers: "By the end of 1995 Ukraine was in political, economic and social crisis. Ukraine had the highest unemployment, the lowest minimum wage and the greatest poverty in Eastern Europe. Over 90% of the population was below the poverty line. There was pervasive lawlessness. A black economy (not including drug trafficking and prostitution) accounted for 45% of national output. All public institutions including the armed services, security services, police forces, universities and medical services were infested with bribery, corruption and criminality. Street crime went substantially unpoliced. Western foreigners were particularly targeted by criminals. There was a crime explosion and the rate of detection was falling. Odessa had one of the highest crime rates in Ukraine. There was pervasive lawlessness in the city. According to Dr Keys'" (the defenders' representative) "briefing note for the exchange, the Odessa region was dangerous particularly because of the influence of the former KGB and the 'Mafia'. There was a known problem for personal safety for foreign visitors. All of this was known or should have been known to the defenders. In reply, the defenders point out that the briefing paper referred to by the pursuer included a paragraph: "The law and order situation in the Capitals, if not in Odessa itself, may leave something to be desired. In particular you should not wander the streets by yourself at night or attend nightclubs which are infested by members of the Mafia" [6] Against this factual background, senior counsel for both parties made lengthy submissions.The defenders' submissions
[7] Senior counsel for the defenders pointed out that this was a case where the pursuer was claiming that the defenders were liable to her in damages for an injury caused by third parties (the alleged Russian seamen), unrelated in any way to the parties to the action. The basis upon which she sought to do this was not particularly clear. She pointed to the averments of fault in condescendence 6:"It was the defenders' duty to take reasonable care for the welfare and safety of their students such as the pursuer in the course of their studies. It was their duty to take reasonable care not to expose their students including the pursuer unnecessarily to the risk of assault, rape included, in the course of their studies. It was their duty to take reasonable care to ensure that there was no unreasonable risk of assault before assigning the students, including the pursuer, to off-campus locations for study purposes. It was their duty in the exercise of reasonable care, not to assign students to off-campus locations for study purposes unless they had cause to be satisfied that there was no such risk. Separatim it was their duty not to assign students to off-campus locations for study purposes where they knew of such a risk. There was an unreasonable risk of assault, rape included, in Odessa given the pervasive lawlessness. The defenders had no cause to be satisfied that there was no such risk."
The pursuer's submissions
[13] Senior counsel for the pursuer started off with a biblical citation from 2 Samuel, Chapter 11, where it is related that King David deliberately sent Uriah into battle and to the inevitability of death. This was to illustrate the proposition that, from earliest times, it had been recognised that a person could be responsible for wrongdoing or injury caused by others. [14] Senior counsel for the pursuer developed his argument as follows: Firstly, the defenders have not satisfied the necessary test which would enable the Court to dismiss the pursuer's action without any inquiry. He cited the well known cases of Jamieson v Jamieson 1952 S.C. (H.L.) 44 and Miller v SSEB 1958 S.C. (H.L.) 20, in this connection. The Court should be particularly reluctant to dismiss a claim for personal injury without inquiry. [15] Secondly, he contended, the authorities founded on by the defenders do not support their contention that the action should be dismissed. Clearly the relationship between the parties involved is material. Here we have a University which has required one of its students to be transferred to an off-campus location (in Odessa). Their admitted duty to care for her safety and welfare is transferred to the location where she has been sent. Adequate averments have been tabled which (if proved) would establish that she had thereby been subjected to a particularly dangerous environment. This was exactly the kind of "additional characteristic" of the situation referred to by Lord Keith in Hill's case, so as to extend the liability of the defenders to cover the situation in which the pursuer alleged she was attacked. The cases cited illustrated a growing responsibility for persons who owed a duty of care to someone under their control. In his submission, none of the cases cited by the defenders ruled out the present basis of claim. The pursuer was clearly entitled into an inquiry into her allegations. [16] Finally, senior counsel for the pursuer cited various foreign authorities which should be persuasive in having the Court endorse his submission. These were Q v Minto Management Limited (already cited); J S v Clement, a decision of the General Division of the Ontario Court (1995) 22 O.R. (3d) 495; Jane Doe v Metropolitan Toronto Commissioners of Police 1998 160 D.L.R. (4th) 697 and Delta Tau Delta v Johnson (Indiana Supreme Court, 12 July 1999). Principally, however, in this regard, he relied on the approach taken by the Supreme Court of Florida in the case of Nova Southeastern University Inc. v Gross, 30 March 2000: 758 So. 2D 86 (Fla. 2000). [17] That case, senior counsel submitted, was very close to the present in its circumstances. It appears that the university in that case had assigned the respondent, a 23 year old graduate student, to an off-campus location where she was required to complete an eleven month internship. The location was said to be about fifteen minutes away from the University. One evening when leaving the location, the respondent was accosted by a man in the parking lot, abducted, robbed and sexually assaulted. In that case there had been evidence that, prior to the attack in question, the University had been made aware of a number of other criminal incidents which had occurred at or near the off-campus location. In those circumstances the Supreme Court held that the student could certainly be said to have been within the foreseeable zone of known risks engendered by the University when assigning such student to one of its mandatory and approved internship programmes. The Court concluded:"As the University had control over the students' conduct by requiring them to do the course and by assigning them to a specific location, it also assumed the ... correlative duty of acting reasonably in making these assignments. In a case such as this one, where the University had knowledge that the internship location was unreasonably dangerous, it should be up to the jury to determine whether the University acted reasonably in assigning students to do internships at that location."
The defenders' reply
[19] In a short supplementary submission, senior counsel for the defenders contended that the pursuer's counsel was attempting to extend and innovate upon the scope of the Scots law of delictual liability by principally praying in aid, the book of Daniel and an inapposite decision of the Florida Supreme Court. The latter should not be persuasive. It was materially different from the present case on its facts. The University in that case apparently had prior knowledge that the precise location to which the respondent was assigned was dangerous and that crimes had been committed there. The Court in that case was not saying that the University would have had responsibility for the respondent had she been held up at a location some distance away and outwith the control of either the University or those responsible for regulating the internship location. In short, that case could not assist the pursuer and she renewed her motion for dismissal.The decision
[20] I am persuaded by the arguments advanced on the part of the defenders that the pursuer's action is basically irrelevant and that, even taking all her averments at face value, proof of them would not entitle her to the remedy that she seeks. [21] The factual situation is as set out above. The pursuer claims that she was attacked in the early hours of the morning at a location some distance away from her hostel, being a location over which neither the defenders or the Odessa University authorities apparently had any control. The pursuer herself had chosen to go to that location at that time of the morning. She was not constrained to do so by the defenders or the Odessa University authorities. In those circumstances, I fail to see how it can be successfully contended that the incident falls within the scope of the admitted duty of care which the defenders had towards the pursuer, to ensure that she was adequately and safely accommodated at the foreign University placement. [22] What is being contended for here, is that, by sending the pursuer to a foreign country where the law and order situation is said to be materially worse than that in Scotland, the defenders thereby placed themselves in a position of responsibility for any crime committed against her. In my view, this cannot be right. No doubt, as senior counsel for the defenders conceded, if the University had required her to go to a battle zone (say Baghdad or the Gaza strip) they might render themselves responsible for her becoming the victim of foreseeable acts of violence. No doubt too, if the alleged crime had happened within one of the hostels controlled by the Odessa University Authorities, the defenders might (depending on the exact circumstances) also be liable to the pursuer. In that circumstance at least an inquiry would be warranted. Not so, in my view, in the circumstances presently founded on.Disposal
[23] For these reasons then, I uphold the first plea-in-law for the defenders and grant decree of dismissal. Expenses were not discussed at the procedure roll hearing and the case will have to be put out By Order so that that question can be dealt with.