Scottish judge allows £1.5m damages action by former pupil alleging teacher raped her during school camping trip
The woman, referred to as “A” in the written opinion of Lord Woolman, was just 13 at the time of the alleged incident in 1987 and later prepared for a sexual assault trial which did not go ahead when another witness felt unable to testify.
The junior school concerned has not been named in the report by Lord Woolman, a judge in the Outer House of the Court of Session, to protect the former pupil’s identity.
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Hide AdThe defender, XY Ltd, which owned and managed the school as both a junior and senior school at the time, raised a preliminary issue in respect of whether the historic abuse action should proceed. It argued it would be “substantially prejudiced” as it could be potentially liable to pay a large sum in damages, having owed no liability to the former pupil for many years. A change in the law in 2001 meant employers became vicariously liable for criminal acts of employees and in 2017 a limitation was removed for those who claim historic child abuse.
The defender argued that the claim should be directed solely against the teacher, and also that it would have difficulties investigating the alleged incident due to unavailability of documents and witnesses.
But the legal team representing the former pupil argues the defender was vicariously liable as the teacher’s employer given his alleged conduct on the trip, that a portfolio of sufficient evidence involving key witnesses has been assembled to back her claim and that her interest should prevail.
Lord Woolman said: “The pursuer plainly has a financial interest in favour of the action proceeding. But she also has a vital interest in securing justice. On her account she was the victim of a detestable crime. Rape lies at the top end of the calendar of offences. The teacher’s conduct, if proved, had aggravating elements. It involved premeditation and breach of trust. He took advantage of a child in a vulnerable situation. The consequences of his behaviour have been lifelong.
“In the circumstances of this case I conclude that the scales tip decisively in favour of the pursuer. Accordingly I shall allow the action to continue.”
Hot drinks ‘laced with alcohol’
The pursuer alleges that in advance of a camping trip with other female pupils in 1987, the male teacher told the girls not to pack their swimming costumes as they would be “skinny-dipping” and that three girls would share each tent. But she claims when the group arrived at the campsite, he told them they were a tent short and the girls would have to take turns to share with him.
It is also alleged that on the second night of the trip, the teacher “laced the pupils’ hot drinks with alcohol.”
She says when she entered the tent to go to sleep with two other girls, he was already there. She claims she got into a sleeping bag between him and the tent wall and at some point the other girls left the tent and he raped her.
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Hide AdThe defender does not know or admit that the alleged rape took place.
The report says that the former pupil first disclosed what had happened a few years later when she went to the senior school. Her father, to whom she was close, died in an accident and she subsequently tried to take her own life.
During her stay in hospital she told a psychiatrist about the teacher’s alleged conduct on the trip and the details were related to a GP and to the doctor at the senior school.
The former pupil said she blanked out the memory of the alleged incident until she reached her early 20s and felt able to tell her mother what happened. The pursuer later came across an online forum for former pupils who alleged they had been bullied at the senior school.
Trial never started
In 2013, the woman reported the alleged incident to police.
Police took witness statements from several former pupils during their investigation and one alleged the teacher had also sexually abused her. A report was sent to the Crown office, which decided to prosecute the teacher on several charges involving both complainers, including the alleged rape.
A trial was scheduled for 2014 but it did not take place.
The judge’s written statement says: “As I understand matters, the Crown case depended on mutual corroboration.
“Shortly before the trial was due to commence, the other complainer felt unable to give evidence. Without her testimony there was insufficient evidence in law to ask a jury to return a conviction.”
Attention turned to civil proceedings and the pursuer’s legal team intimated the present claim to the defender’s insurers in 2016 and raised an action in 2019. The legal team has assembled a portfolio of documents to support the claim, including report cards, medical records and police witness statements from fellow former pupils.
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Hide AdThe judge’s report says: “The pursuer maintains that the alleged rape has had corrosive and pervasive consequences that have affected her whole life, including her mental health and relationships. She has significantly under-achieved in her academic life and career.”
The defender contends that not all of the pursuer’s problems are attributable to the alleged incident and points to other adverse life events - and argues that the sum sought is excessive.
The defender says the claims should be directed solely against the teacher, but the pursuer alludes to the defender’s insurers settling a similar action in 2019 involving another pupil’s claim of sexual abuse in 1990 by another teacher at the secondary school.
The judge’s report also highlights that the teacher may be unable to satisfy any official order made against him should the pursuer receive an award of damages.