[1] Mrs McLatchie is a support worker who was employed in a Respite Centre for autistic children. One evening in 1998 one of the children, a boy, whom I shall call R., attacked her, pulled her hair, pulled her to the floor then bit and kicked her. She was injured and now sues her employers for what happened. The defenders' complaint about the pleadings is that they have no fair notice of the case they have to meet, and that for lack of this specification, the case should be dismissed as irrelevant. Counsel founded some fifteen points of detail to criticise and by the time she made her reply, also wanted the case dismissed as irrelevant per se. The pursuer, on the other hand was content to have a proof before answer.

[2] Let me begin by looking briefly at the record. The account of the accident is simple. That evening, there had been trouble between R. and two other residents. The pursuer was working with a Caroline Knox with the two others and later the pursuer and Knox went to R.'s room. R. came out. There was a struggle and Knox barricaded herself in R.'s room. The pursuer went alone to phone for help when she was attacked as I have described.

[3] In Condescendence 3 the pursuer makes a complaint of lack of training in how to restrain and deal with violent children. She had received no detailed advice about the boy R, and in spite of requests made at staff meetings for training there were no procedures in place. She goes on to name and describe two service providers of training in this area (SCIP and Team Teach). At page 10 she goes further and describes what those organisations provide, being a range of reactions and responses to different types of violence and all related to the use of reasonable force. She makes mention of various published circulars and reports.

[4] The Answer made by the defenders to this is lengthy, discursive and detailed. It covers some thirteen pages of the Record.

[5] Article 4 of the Condescendence deals next in some detail with the known violent propensities of the boy R, his records, reports from previous schools and what restraint techniques had been used on him in other places. The duties said to be incumbent on the defenders are found in Article 5. Miss Shand in her argument covering the Record pages 34/7 identified some fifteen duties of care. She looked at these individually and criticised them. The result of all that, she said, was that the pursuer's case was irrelevant through lack of specification. I now summarise what she said.

[6] She began by referring to recent legislation in Scotland and England making the use of physical restraint on children now to be unlawful. Apart from noticing that this is a controversial subject now, none of these statutes are in issue here and in the end no point was made by her about it. It is not necessary to deal further with it. Her further argument was a litany of detailed complaint about the duties of care which, she said, were in vague and general terms and without any content.

[7] She attacked the case made at the foot of page 35 where the "Separatim" case begins. It was not said what were the "suitable techniques". Were they what was said at 36E to 37A. Was it "restraint" and if so what type. Staff support procedures (36B) was next criticised. Further on she said there was no basis for a case of needing three people to approach R and it was not said clearly how many would be "adequate numbers". To issue "warnings" 36C would not have prevented what occurred. Miss Shand then criticised what was said at 36C/D about "how to respond" to the violent teenager. It was unclear what was meant, and in the following lines she made the same point over the words "how to deal with". The pursuer had to say what a provider would have instructed about this, and select and name a responsible provider (36D/E). She criticised the use of the word "curriculum" at the foot of page 36 and the use of "techniques" and "clear techniques" on the next page. She said these were vague expressions.

[8] Counsel then returned to what the pursuer says on page 35C to E. Was "assessment" the written form referred to on page 27 or something else. It would not have reduced the risk of an attack. Not to have allowed R to live in the house was unrelated to any other duty pled, and the pursuer would still have been hurt even if the risk were reduced.

[9] In her opening argument counsel finished by asking me to delete certain averments and exclude them from probation. (These were numbers 2, 4, 5, 6, 9, 10, 14 and 15 of the duties she had identified and highlighted by these numbers on an excerpt from the record produced by her out of pages 35 to 37). When she came to reply she renewed her motion to make the deletions but also asked me to dismiss the case as irrelevant as the pursuer had not offered to prove which restraint technique would have prevented the accident or to select a particular service provider who had a training programme which would have prevented the accident.

[10] To this argument Mr Ellis made the following response. The case was not irrelevant for lack of specification. The pursuer did not need to aver or prove any particular detailed technique. The proper question was whether fair notice of the essential facts had been given, and this had been done. The lengthy response made in the defences showed that the defenders had not been taken by surprise.

[11] The pursuer had been subjected to a prolonged and frightening event. The importance of pages 8B to 9B were in the lack of training and advice about the boy coupled with requests for training never given. These were essentially important negatives. Thereafter there was considerable detail of what advice was available and service providers were named. Clear averments were made that there was a market for this. From 10B to 11A the techniques within the curriculum were specified in detail. Training in these would have made the difference.

[12] Such training was recognised as important by various agencies. The boy's records and known propensities were clearly averred and the causative link was clearly averred at 28B. Proper individual and group training would not have left the pursuer alone. There was, of course, no training at all and so the pursuer does not need to rely on any one technique. Also the duty not to let her work with him without training was clearly relevantly averred, against a general duty to train.

[13] The pursuer need not pick one technique over another as there was a range of techniques. This was also an area where there was no universal standard with set guidelines. In this area where violence was the risk there were many differing responses. Counsel again stressed that on pages 13/26 the defenders seemed to know a great deal about the pursuer's case.

[14] Mr Ellis then replied in detail to all the points of criticism made of the alleged fifteen duties concluding in each case that fair notice had been given and that it was a suitable subject for proof. The pursuer had offered to prove causation and any measure to reduce the risk was relevant. The defenders simply had not thought about the problem.

[15] In the course of the argument I was referred to a number of authorities and I now turn to these.

[16] Three cases were referred to as laying down certain principles when the Court is looking at relevancy before proof. The first is the well known case of Jamieson v Jamieson 1952 SLT 257. Lord Reid pointed out that a case should only be dismissed as irrelevant if it can be shown that it would still fail even if all that is averred is proved (264). The case was one of divorce and proof before answer was allowed. Lord Normand (257) formulated the test in these words ".... the true proposition is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved ....". As I read the case and the account of the detailed averments, it was not a case concerning specification. Miller v South of Scotland Electricity Board 1958 SC (H.L.) 20 was referred to since Lord Keith at p.33 onwards gave further guidance how to regard cases where the averments were made "...with commendable succinctness and absence of word painting ....". It was a case of alleged negligence and his Lordship pointed out that it could only be in rare and exceptional cases that such an action could be disposed of on relevancy. Duties of care vary infinitely and usually require proof. The present case is, of course, the same type of case.

[17] McDonald v Glasgow Western Hospitals 1954 SC 451 was an action of reparation at the instance of a widow for the death of her husband. It was said there had been a failure by a surgeon to make a correct diagnosis in time. A question arose about whether the pursuer had properly averred the terms of his contract. That was a matter known to the defenders and in acidly dismissing the point Lord Cooper said (465) "....I pause to deal with a point of pleading taken by the Board, viz, that the pursuer's averments are lacking in specification in respect that full particulars are not stated as to the precise terms of the house surgeon's contract and the extent of the control and authority enjoyed by the Board over him. This objection seems to me to come with an ill grace from a state authority to the representatives of a patient under the state scheme. The plea of lack of specification finds its proper application in a case where a defender does not know the case to be made against him and objects to being taken by surprise at the proof. In this instance the Board and the house surgeon know perfectly well what their contract was and how it operated, and the pursuer cannot know these things except by obtaining information from the defenders. I am unimpressed by this objection and am surprised that it was taken .....".

[18] The case principally relied on by Miss Shand was Argyll & Clyde Health Board v Strathclyde Regional Council 1988 SLT 381 an Outer House decision. A water pipe owned by the defenders and running under a field had burst, flooding the pursuers' premises. The pursuers who did not know what had caused the burst alleged a duty of proper maintenance. It was not said what kind of maintenance was appropriate or even possible. It was held that the averments were so lacking in specification as to be irrelevant. It is clear (385) that the decision is special to the facts of the case and was on the basis that no fair notice had been given to the defenders of what the pursuers were offering to prove against them. Porter v Strathclyde Regional Council 1991 SLT 446 were referred to, although it was a case about causation and foreseeability. The pursuer was a nursing assistant. She had slipped on food which had fallen on to a floor. The case was decided in her favour after proof. The case is rather unusual in that a strict finding made by the Lord Ordinary (447L to 448B) was not challenged in the Second Division. Although the wrong test of causation was applied, application of the correct test of reducing the danger still allowed the pursuer to succeed. Mention was made before me of certain remarks in the speech of Lord Bridge in Wilsher v Essex Area Health Authority [1988] AC 1074 which are quoted in Porter at 448F. It should be noted that these comments have not survived the scrutiny of Fairchild v Glenavon Funeral Services [2003] 1 AC 32 and now have to be disregarded.

[19] Finally, I was referred to two other cases, both decided after proof. In Brown v East & Midlothian NHS Trust (unreported) (3 December 1999 Lord Nimmo Smith) the pursuer was a nurse who was injured when she tried to prevent a patient from falling. The pursuer raised an issue of training techniques for supporting falling patients who were being escorted. Such a duty did not apply to the facts of the case as the patient was not being escorted at the time he fell. Thus the very precaution sought would not have prevented the accident and the action failed.

[20 Finally there is Cross v Highlands & Islands Enterprise 2002 SLT 1060. The case, again after proof, concerned foreseeability where an employee had committed suicide said to have been caused by stress at work. To some degree the case concerned the duty to obtain a properly qualified expert to give stress advice and not to use the named individual who did try to counsel the deceased (see paragraph 93/95). It was said that in this particular respect the case was similar to the present facts of assessing a risk and choosing a suitable service provider to train the staff.

[21] What then is the effect of the argument and these authorities. In the first place I do not think the present law in very recent legislation has anything to do with this case. It may be that now in Scotland no form of physical restraint can be used on children but that is nothing to the point in circumstances which arose in 1998.

[22] It is clear to me on the general authority of Jamieson and the particular authority Miller that in reparation at least it would only be in an exceptional case that an action would be dismissed for lack of specification. I do not regard this as such a case and indeed it seems to me one where the pursuer has set forth a structured general, and then a detailed case. The defenders have, I think fallen into the trap of isolating details in the case and criticising them without regard to the larger picture disclosed in the pleadings. Divide and conquer may sometimes work but not in this case. I reject the complaint that the pursuer has not identified any service providers when she has in fact named two. This argument is also unsound when one has regard to the facts of the very lengthy answer made by the defenders demonstrating their full awareness of this area. They plainly know about it in the same way as the hospital authority knew of the surgeon's contract in McDonald. This argument merits the same strictures as were given by Lord Cooper in that case. Further, in a situation where there is unpredictable violence and there may be a range of techniques for dealing with it, it is not necessary for the pursuer to select one. The point is well made that it is relevant to aver how training would have prevented the accident. Here, of course, there was none. It seems very clear to me that the whole case concerning service providers, training and techniques is a proper subject of proof. The point was well made by Mr Ellis that the defenders did not think about these things and make an assessment although it is obvious they were well aware of them.

[23] This all has to be reviewed further against the clearest of averments that the defenders knew of the boy's dangerous propensities in reports from another school where he had been previously. That fact is also an important subject for proof. It was never seriously suggested that in the context of what is averred the defenders did not owe any duties of care to the pursuer. In my view where one is dealing with potentially difficult and dangerous children a high degree of care is required and the pursuer has set forth with clarity a prima facie case for inquiry. I cannot accede to the suggestion made, somewhat half heartedly, at the end that the whole case was irrelevant per se because of no one technique or provider being selected. That is simply the specification argument in another guise. I have already held it to be unsound.

[24] I also reject the argument that I should delete certain random averments. I do not think these or any other of the detailed duties are irrelevant or fail to give proper notice. Looking at the pursuer's case as a whole they are a proper subject of proof.

[25] None of the cases cited compels me to any other opinion. Brown and Cross were quite different on their facts and were decided after proof. In Cross it is clear (paras 73/76) that the assessment of risk was quite different to anything in the present case and is in no way analogous. Indeed, close scrutiny of para 75I to J shows passages favourable to the pursuer and the need, in another context, to make a proper risk assessment. Further, the specialist counsellor was not in fact a specialist; and was selected by the defenders to help the pursuer not to treat or diagnose his illness. Her role could in no sense be equated to the duties said to be incumbent on the defenders here concerning service providers. Porter was not in point. It was a case about causation and again after proof. That leaves Argyll and Clyde Health Board. In the first place the case is an Outer House decision and is not binding on me. The facts were wholly different and, crucially, what could not be specified there were certain essential facts about the water pipe. Plainly without that no proper or specific case of fault could be made. Here the situation is quite different. The facts are clearly and fully averred and in my opinion the defenders cannot be heard to say they do not know what case they have to meet.

I will allow, before answer, a proof leaving all pleas standing. That permits the pursuer to argue her third plea later, if so advised.