We are currently acting for the family of the late Rosina Sutherland. 

This is a particularly tragic case.  Rosina, who was elderly, was raped and murdered by a man called Kevin Rooney.  He pled guilty and was sentenced to life imprisonment.

It transpired, however, that Rooney had 36 previous convictions, some of them for sexual offences.  The police described him as "psychotically disturbed".  Despite this, he was allowed to live in accommodation at Longston Road, Edinburgh with no monitoring or supervision on the part of Edinburgh City Council who was in charge of him.

I think most members of the public would assume that if we could prove negligence on the part of Edinburgh City Council, the family could make a claim for damages against the Council for the loss of Rosina.

However, as the law stands, this is not the case.  The current law insists that, in order to establish that there is a duty of care owed there has to be, what is called, "a degree of proximity" between the victim and the person or authority against whom the claim is made (in this case, Edinburgh City Council).  In layman's terms, this means there has to be some sort of close relationship between the two.

The absurdity of this law can be illustrated by a hypothetical example.  Let's suppose that the Scottish Prison Service was negligent in wrongly releasing a murderer from Barlinnie.  If that murderer then broke into a school and murdered a whole class of children, the families of those children would not be entitled to claim damages against the Scottish Prison Service.  This is because the law would deem that there is no "degree of proximity" between the children and the Scottish Prison Service. Accordingly, it imposes no duty of care on the Scottish Prison Service.

For many years, I have tried to have this law changed.  Some time ago, I was involved in a case calledMitchell -v- Glasgow City Council in which we almost succeeded.  Mr Mitchell was a tenant of Glasgow City Council.  His next door neighbour, also a tenant of Glasgow City Council, continually threatened him with violence and even to kill him.  Mr Mitchell asked Glasgow City Council to take action against the neighbour.  They intimated to the neighbour that it was their intention to evict him but failed to warn Mr Mitchell of this intimation and that the neighbour might react badly.  The neighbour then attacked and killed Mr Mitchell.  The family made a claim for damages against Glasgow City Council.  The case came before one judge in the Court of Session who confirmed there was no "degree of proximity" and the case was thrown out.  We appealed this decision and the appeal court in Edinburgh upheld our appeal and confirmed that the Council did indeed owe a duty of care to the late Mr. Mitchell.  However, the Council then appealed to what was then the House of Lords.  The House of Lords, unfortunately, agreed with the initial judge and threw out the case. 

I tried again, last year, on behalf of a client called Ann Thomson.  Ann's daughter was murdered by a violent prisoner who was wrongly released from Castle Huntly Prison on weekend leave.  Again, the judge who heard the case threw it out on the grounds there was no "degree of proximity" between the Scottish Prison Service and our client's daughter.  Once again, we appealed but, this time, the Appeal Court was against us. 

Will the case of Rosina Sutherland lead to a change in the law?  Rosina's family intends to take the matter up with their MSP in the hope that the Scottish Parliament might pass a law which would create a duty of care in these circumstances.  If they did, we could then proceed with a claim for damages on behalf of the family.

Scots law is renowned for its fairness and equity but these cases surely emphasise that there are some areas which require change.