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Cite as: [1998] ScotCS 81
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OPINION OF LORD REED in the cause JANICE WARD Pursuer; against SCOTRAIL RAILWAYS LIMITED Defenders:
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27 November 1998
This action came before me for debate on 6 November 1998 on both parties' preliminary pleas. After hearing argument, in which both parties referred to the decision of the Court of Appeal in Khorasandjian v Bush [1993] Q.B.727, I took the case to avizandum. Having then discovered that the Court of Appeal's decision had subsequently been overruled by the House of Lords in Hunter v Canary Wharf Ltd [1997] A.C.655, I had the case put out By Order for further argument on 19 November 1998 after which I again made avizandum.
The background to the pursuer's claim, as narrated in her pleadings, can be summarised as follows. She has been employed by the defenders since 1990. She worked as a ticket inspector on trains, and was based at Dalmuir Station in Glasgow. Another employee of the defenders, a Mr Kelly, worked in the office at Dalmuir Station as a clerk. On about 11 October 1995 the pursuer received a letter from Mr Kelly. According to her averments:
"The letter had a sexual content and, in particular, contained the following passage:
'To the flower the bee is a messenger of love and to both bee and flower the giving and the receiving of love is a need and an ecstasy.'".
Counsel identified this passage as a quotation from a poem entitled "The Prophet". The pursuer was offended by the tone of the letter and showed it to a supervisor. She later met the defenders' Customer Services Manager, a Mr Thomas, to discuss her concerns. She complained to Mr Thomas about the letter, and was told that she had three options: she could make a formal complaint; or Mr Thomas could have an informal chat with Mr Kelly; or she could speak to Mr Kelly herself. She chose the third of these options, and spoke to Mr Kelly a few days after receiving the letter. She told him that he should leave her alone. In November 1995 she received a note from Mr Kelly which included a diagram showing her route (i.e. where she would be travelling on board trains) throughout the day. According to the pursuer, it was not one of his duties to prepare such a diagram for her. She felt intimidated and complained to her supervisors for a second time. She was reassured and told that Mr Kelly would be warned about his conduct. According to her averments:
"At about this time, Kelly regularly stared at the pursuer when she worked alongside him. Kelly was swapping shifts to be in the booking office with her. Kelly was making efforts to show the pursuer that he knew where she was working throughout her shift".
The next incident, according to the pursuer's pleadings, was on about 2 May 1996, when Mr Kelly left a letter for the pursuer's attention in which he wrote:
"It took me twice as long to finish my work last night. I'm not saying it's your fault but .... you were there!".
As a result of this letter and the other matters already described, the pursuer wrote to Mr Thomas stating that she wanted to make a claim in respect of sexual harassment. Mr Thomas undertook an investigation in response to that complaint. In the middle of May the pursuer found herself working alongside Mr Kelly and was unable to cope with this situation. She told Mr Thomas of her feelings, and was offered counselling and the presence of a supervisor when she booked on and off at the beginning and end of a shift. She received counselling, but no supervisor appeared. On about 17 May Mr Kelly left a note indicating that he knew where the pursuer would be throughout her shift. A few days later the pursuer found herself on a shift with Mr Kelly. On about 25 May Mr Thomas told the pursuer that he had interviewed Mr Kelly and that Kelly had admitted authorship of the two letters but denied the other allegations. During the investigation the defenders transferred Mr Kelly to another station. After about a week and a half Mr Thomas had a discussion with the pursuer during which she agreed to try working with Mr Kelly back at Dalmuir Station, on the condition that a supervisor was present when she booked on and off. About two weeks later the pursuer told Mr Thomas that the return of Mr Kelly to Dalmuir was not working out. One of the problems was the defenders' failure to organise the presence of a supervisor as agreed. The other problem was that the pursuer felt insecure because Mr Kelly sat behind a glass window through which he could speak to her, and there was a side door through which Mr Kelly could walk.
According to the pursuer's pleadings, she went off sick on 30 June 1996 as a result of her emotional state caused by Mr Kelly's conduct and the defenders' failure to resolve the situation. She then suffered prolonged illness with a number of absences from work. In November 1996 she returned to work. She saw Mr Kelly on a number of occasions, and became ill as a result of her fear of him. She received medical treatment and went off work as a result of nervous illness. In December 1996 she met Mr Thomas and a Mr Gray to discuss her return to work. They suggested that she should move to Helensburgh Station. The pursuer agreed to this, because of her financial position and because Mr Kelly still worked at Dalmuir, and in January 1997 she began to work from Helensburgh. This caused her additional travelling expenses and general inconvenience. She asked the defenders to reimburse her additional travelling expenses, but they refused. She had to go through the defenders' grievance procedure before they agreed to reimburse her. This dispute over travelling expenses, and the difficulties of working so far from her home in Dalmuir, contributed to her psychological difficulties. While Mr Kelly continued to work at Dalmuir, the pursuer felt that she was being punished for his conduct. In about July 1997 the pursuer's trade union intervened. As a result of their involvement the pursuer was reinstated at Dalmuir and Mr Kelly was transferred elsewhere.
In the present action the pursuer seeks damages from the defenders on the grounds of (1) their own fault, (2) vicarious responsibility for Mr Kelly's fault and (3) breach of contract. The damages are sought in respect of loss, injury and damage which is pled as follows:
"Following upon and as a result of the harassment, the pursuer developed an anxiety disorder. The pursuer became weepy. On or about 10 July 1996 the pursuer attended her G.P. practice as a result of her anxious state and sleeplessness. Since said date the pursuer has consulted Dr David Houston, Clydebank Health Centre, Kilbowie Road, Clydebank. The pursuer had poor appetite, palpitations, a feeling of faintness, emotional lability, nausea and was phobic about going outside. The pursuer was prescribed Beta blockers. The pursuer received counselling. The pursuer has suffered from depression. The pursuer has suffered and continues to suffer from sleeplessness with occasional nightmares. The pursuer has suffered and continues to suffer from fluctuating weight. The pursuer has been prescribed Prozac. The pursuer has developed a fear of male passengers with whom she has to work in the course of her work. As a result of her condition, the pursuer required to be absent from work. She has lost wages, details of which will be produced".
Mr Grant Hutchison, appearing on behalf of the defenders, invited me in the first place to sustain the defenders' general plea to the relevancy of the action and to dismiss the action. Alternatively, he invited me to sustain the defenders' plea to the relevancy of the averments as to vicarious liability and breach of contract, and to exclude those aspects of the case from the scope of any proof. Finally, he invited me in any event to exclude certain particular passages in the pursuer's pleadings from proof. Mr Davidson, appearing on behalf of the pursuer, invited me on the other hand to allow the pursuer a proof before answer, to allow certain amendments of her pleadings, and to exclude certain passages in the defenders' pleadings from proof.
Addressing me first in relation to the pursuer's delictual case, Mr Grant-Hutchison accepted that harassment could in principle constitute a civil wrong, and referred to the Court of Appeal's decision in Khorasandjian v Bush [1993] Q.B.727. He sought to distinguish the present case on the basis that the conduct alleged against Mr Kelly was much less serious than in the Court of Appeal's case. In reply, Mr Davidson submitted that the Scottish concept of injuria was sufficiently flexible to encompass the conduct complained of, whatever difficulties there might be under the English law of tort, and cited in support passages in Walker, Delict (2nd ed.) and an article by Mr Sam Middlemiss ("Civil Remedies for Victims of Sexual Harassment", 1997 J.R.241). In relation to the case based on the defenders' own fault as employers, Mr Davidson submitted that the situation was analogous to that considered in Hudson v Ridge Manufacturing Co Ltd [1957] 2 Q.B.348. He also founded on Walker v Northumberland County Council [1995] 1 All.E.R.737.
It appears to me that the question whether, and under what circumstances, conduct of the kind alleged in the present case is actionable under the law of delict raises potentially far-reaching issues which require a fuller consideration of the law than they received in argument before me. It would be inappropriate for me to embark on any detailed discussion without having heard a full argument, but it might be helpful if I were to indicate some points which merit consideration.
"Molestation" as a legal concept can be found in the institutional writers, but appears to have been confined to interferences with the possession of land (see e.g. Stair's Institutions, I.9.28; Erskine's Institute, IV.I.48). In modern practice, Scottish courts have dealt with "molestation" in a wider sense for many years in the context of the law of interdict. As is pointed out in Burn-Murdoch, Interdict, molestation may constitute an assault, or nuisance, or trespass, or some other identifiable wrong:
"Great personal annoyance might no doubt be caused without the commission of any of these definable wrongs ... How far such conduct is legally wrongful and restrainable by interdict may present questions of difficulty". (Para.371).
In practice the courts have most frequently granted interdicts against molestation in the context of matrimonial disputes. Such interdicts are "designed to afford protection against an anticipated violation of the legal rights of the pursuer" (Murdoch v Murdoch, 1973 S.L.T.(Notes) 13). In the leading case, it was said that the Court would have to be satisfied that the pursuer was likely to be exposed to "conduct on the part of the defender which will put her at risk or in fear, alarm or distress" (ibid). The Court cannot however have meant that any conduct which causes a pursuer to feel fear, alarm or distress is unlawful, since some forms of conduct may foreseeably have these consequences but nonetheless can hardly be considered unlawful. For example, a woman who tells her boyfriend that she is breaking off their relationship may foreseeably cause him distress, and yet it can hardly be unlawful for her to end the relationship. In "molestation" cases, however, the conduct interdicted is conduct which is calculated to cause fear, alarm or distress. In Murdoch v Murdoch itself, for example, it was alleged that the defender had created disturbances at the house where the pursuer lived with the children, had threatened, abused and frightened her in the course of many telephone calls, and had terrified her and the children. The Court was in no doubt that these alleged actings violated the pursuer's legal rights. No authorities were referred to, but it is not difficult to find precedents in point concerned with threatening behaviour causing alarm. The Court accordingly interdicted the defender "from molesting the pursuer by abusing her verbally, by threatening her, by putting her into a state of fear and alarm or distress, and by using violence towards her". The Court was not however willing to interdict the defender from telephoning the pursuer or calling at her house, because such acts would not of themselves violate the pursuer's rights.
Cases such as Murdoch v Murdoch are concerned with interdict rather than with damages. Mr Davidson however submitted that damages are recoverable for conduct which deliberately causes fear and alarm, even in the absence of personal injury: damages are recoverable in respect of the affront. This submission appears to be supported by authorities concerned with assaults and threatening behaviour (see Walker, Law of Damages in Scotland, p.555). It may not however be apt to the present case if (as discussed below) the case has to be regarded as being pleaded on a basis of negligence rather than deliberate wrongdoing. In the context of personal injury actions founded on negligence, on the other hand (and leaving to one side cases concerned with the imposition of physical discomfort falling short of injury, such as R v Deputy Governor of Parkhurst Prison, ex parte Hague; Weldon v Home Office [1992] 1 A.C.58 and Moffat v Secretary of State for Scotland 1995 S.L.T.729), it appears to be clear that emotional distress is not enough to found an action: the pursuer must have suffered physical injury. This may take the form of a recognisable psychiatric illness (or "nervous shock", as it used to be called) or, as Lord Wilberforce put it in McLoughlin v O'Brian [1983] 1 A.C.410, 418, recognisable and severe physical damage to the human body and system caused by the impact, through the senses, of external events on the mind. Where such an injury is suffered, it may of course found an action even although it was not caused deliberately (as, for example, by a campaign of persecution), if it was caused by the breach of a duty of care (as, for example, in McLoughlin v O'Brian itself). In the present case, the averments of injury appear to me to go beyond emotional distress, and include psychiatric illness.
English cases concerned with "molestation" have also, for the most part, concerned domestic violence and the availability of injunctive relief. Mr Grant-Hutchison referred to the case of Khorasandjian v Bush [1993] Q.B.727. As I indicated at the hearing, I do not regard this decision as being of any direct relevance to the present case, where no question of nuisance (in the legal sense) arises. The judgments are however of interest (notwithstanding that the decision was subsequently overruled by the House of Lords). All the members of the Court accepted that an injunction could be granted against acts of molestation and interference which were calculated to impair the plaintiff's health, on the basis of the line of authority deriving from Wilkinson v Downton [1897] 2 Q.B.57 and Janvier v Sweeney [1919] 2 K.B.316. That much had already been established by the earlier decision of the Court of Appeal in Burnett v George [1992] 1 F.L.R.525. The novel feature of Khorasandjian was the decision of the majority of the Court of Appeal to grant an injunction against telephone harassment under the law of nuisance, as an interference with the plaintiff's reasonable use and enjoyment of property where she was lawfully present (but in which she had no proprietary interest).
The decision of the majority of the Court of Appeal in Khorasandjian was overruled by the House of Lords in Hunter v Canary Wharf Ltd [1997] A.C.655, on the basis that the plaintiff in an action of nuisance must have an interest in the land in question. That case again was concerned with the law of nuisance, but the speeches contain a number of observations which are pertinent to the issues raised by the present case. Lord Lloyd of Berwick and Lord Cooke of Thornton indicated their sympathy with the view that harassment by telephone calls or other means should be actionable, wherever it occurs (at 698B and 714F respectively). Lord Hope of Craighead (at 725) said of Khorasandjian:
"[T]he case was concerned with the invasion of the privacy of the plaintiff's person, not the invasion of any interest which she might have had in any land. I would be uneasy if it were not possible by some other means to provide such a plaintiff with a remedy. But the solution to her case ought not to have been found in the tort of nuisance, as her complaint of the effects on her privacy of the defendant's conduct was of a kind which fell outside the scope of the tort".
Lord Hoffmann suggested (at 707) how, in England, the common law might have developed to provide an appropriate remedy, had Parliament not already provided a statutory remedy:
"The perceived gap in Khorasandjian v Bush was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v Downton [1897] 2 Q.B.57 and Janvier v Sweeney [1919] 2 K.B.316. The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All.E.R.65. The policy considerations are quite different. I do not therefore say that Khorasandjian v Bush was wrongly decided. But it must be seen as a case on intentional harassment, not nuisance".
Both Lord Goff (at 691-692) and Lord Hoffman referred to the Protection from Harassment Act 1997. Section 8 of the Act provides a remedy in Scotland, but only in respect of a breach of section 8(1). As section 8 did not come into force until 16 June 1997 (S.I.1997 No.1418) it cannot provide a remedy in the present case, which concerns alleged conduct prior to that date. The introduction of the statutory remedy can however be regarded as relevant in two respects. First, as Lord Goff and Lord Hoffman made clear, the common law should not be developed in a way which distorts its principles merely as an expedient to fill a gap. Secondly, the Act reflects Parliament's assessment of the public interest and of the balance which it has considered appropriate between the freedom of one individual to act and the right of another not to be affected by such action. As the Lord Justice-General (Lord Rodger of Earlsferry) observed in McGlennan v McKinnon, 1998 S.C.C.R.285, 290:
"The provisions of the 1997 Act can be seen as recognising an actionable right to be free from unwelcome pursuit, which in some legal systems forms part of a wider right of privacy. Hitherto, under our law, a young man who pestered a young lady by serenading her or a young lady who annoyed the object of her affection with unwanted protestations of love were more likely to be of interest to playwrights or authors of romantic fiction than to the courts or the prosecution authorities. If that has now changed, the courts should pay careful attention to limits within which Parliament has ventured into these areas of behaviour".
The final general observation I would make is that, as Lord Hope and Lord Rodger recognised in the passages quoted above, cases of the present kind involve issues of privacy. This is a controversial area of the law, as is reflected in reports on law reform (e.g. the reports of the Younger Committee on Privacy, Cmnd.5012, 1972, and of the Calcutt Committee on Privacy and Related Matters, Cm.1102, 1990) and in the debate over the Human Rights Act. As reference to that Act suggests, this is an area where the development of the common law should have regard to the European Convention on Human Rights. The relevance of Article 8, in particular, is apparent from the decision of the European Commission of Human Rights in Whiteside v United Kingdom App.No.20357/92, 76-A D.R.80(1994). There, on facts similar to those in Khorasandjian v Bush, the Commission found that Article 8 imposed upon the State an obligation to provide adequate protection against that type of deliberate persecution, but held that English law (as stated in Khorasandjian) could have provided an effective remedy.
As I have said, Mr Grant-Hutchison argued that the conduct alleged in the present case was insufficiently serious to be actionable, either as a wrong committed by Mr Kelly or as a wrong committed by the defenders. The sending of the first letter (of 11 October 1995) could not be a delictual act in itself. The sending of the diagram (in November 1995) would not foreseeably harm any reasonable individual. None of the incidents complained of approached the seriousness of those with which such cases as Khorasandjian were concerned, or were such as would foreseeably cause harm. Mr Grant-Hutchison did not, in this part of his argument, distinguish between the case of vicarious liability based on Mr Kelly's alleged fault, and the case brought against the defenders in respect of their own fault; nor did he examine the nature of the fault alleged in each case. The direct case against the defenders is clearly based on the breach of a duty of reasonable care, i.e.negligence rather than intentional wrongdoing. The fault averred against Mr Kelly on the other hand is pleaded in terms which might appear to conflate negligence and intentional wrongdoing (e.g. "It was his duty to take reasonable care to desist from sexual harassment") but nothing was made of that. When asked by me for clarification Mr Davidson explained that his case was one alleging the breach of a duty of reasonable care, the expression "sexual harassment" being used as a form of shorthand to describe Mr Kelly's conduct.
It appears to me that the approach advocated by Mr Grant-Hutchison over-simplifies the issues involved in this case. In the first place, to look at each individual incident in isolation and ask what were its foreseeable and actual consequences appears to me to be inappropriate in a case where the pursuer's averments are of a course of conduct having a cumulative effect. As Dillon L.J. said in Khorasandjian v Bush (at 739):
"[T]he campaign of harassment has to be regarded as a whole without consideration of each ingredient in isolation".
Secondly, reference to the characteristics of the normal person may not be appropriate where, to the knowledge of the person being blamed, the pursuer was unusually sensitive and was being placed under severe stress by matters which a more robust individual might have shrugged off. In general, no doubt, what is reasonably foreseeable will be assessed by the standards of what, in Bourhill v Young, Lord Porter described as "the ordinary frequenter of the streets"; and accordingly in the absence of special knowledge, a defender "is not to be considered negligent towards one who does not possess the customary phlegm" (1942 S.C.(H.L.)78, 98; cited by Lord Bridge of Harwich in McLoughlin v O'Brian at 436). The position may be different, however, where the defender is aware of the pursuer's peculiar susceptibility (cf. Fleming, The Law of Torts, 8th ed. p.33).
Considering in this light, first, the case based on fault on the part of Mr Kelly, I note that it is alleged that the initial letter in October 1995 had a sexual content and that, following its receipt, the pursuer told Mr Kelly to leave her alone. It is alleged that Mr Kelly nevertheless sent a further note in November 1995; that he stared at the pursuer regularly; that he swapped shifts to be with her; that he made efforts to show her that he knew where she was working; that he sent a further letter in May 1996; and that he left her a note later that month indicating that he knew where she would be throughout her shift. This is not, on its face, a campaign of persecution such as was alleged in such cases as Murdoch or Khorasandjian; but I do not feel able to say, on the basis of the pleadings, that the case of fault on the part of Mr Kelly cannot conceivably succeed (cf. Miller v South of Scotland Electricity Board, 1958 S.C.(H.L.) 20,33).
It is equally impossible to say that the pursuer has no case based on the defenders' own fault. She offers to prove that she complained to Mr Thomas about the letter in May 1995, so that the defenders were aware that she had been offended by Mr Kelly's behaviour. She complained again in November 1995 and was told that Mr Kelly would be warned. She made a third complaint in May 1996, at which point the defenders undertook an investigation. According to her, she told Mr Thomas that she was unable to continue working with Mr Kelly, and the defenders' response was to provide her with counselling. Mr Kelly was moved away for a short period but then returned, with her agreement, on a trial basis. She then told Mr Thomas that matters were not working out (partly because the defenders had not provided a supervisor as agreed), but nothing was done in response until she went off sick. When she returned to work in November 1996 she was again required to come into contact with Mr Kelly and became ill in consequence. Mr Kelly was not transferred until after the pursuer's trade union became involved in July 1997. I am unable to say, on these averments, that the pursuer's allegations of negligence against the defenders cannot possibly be established.
Mr Grant-Hutchison's alternative submission was that the case of vicarious liability should be withheld from probation, as Mr Kelly's alleged conduct was plainly outwith the course of his employment. In support of this submission, Mr Grant-Hutchison founded on the nature of the conduct alleged, and Lord President Clyde's dictum in Kirby v National Coal Board 1958 S.C.514, 533 that "if the servant uses his master's time or his master's place or his master's tools for his own purposes, the master is not responsible". I was also referred to the decision of the Court of Appeal in Jones v Tower Book Co Ltd [1997] I.C.R.254, to which I shall return. In reply, Mr Davidson accepted that the case of vicarious liability was "very vulnerable", and that as the law stands the defenders would not be vicariously liable for conduct of this kind by one employee towards another employee at a similar level in their organisation. Mr Davidson however invited me to allow this branch of the case to go to proof before answer as there was room for development of the law. He referred me to Bracebridge Engineering Ltd v Darby [1990] I.R.L.R.3. He submitted that the defenders might be regarded as having impliedly authorised Mr Kelly's conduct, by reason of their failure to act promptly to prevent its continuation. I accept that there may be circumstances in which inactivity may lead to an inference of acquiescence, and even implied authorisation. The defenders are however entitled to fair notice of the case being made against them. There is no suggestion in the pleadings to the effect that the defenders impliedly authorised Mr Kelly's conduct, and to my mind there is a material distinction between dilatoriness in taking disciplinary action (which the pursuer avers) and implied authorisation (which she does not). Mr Davidson also founded on an averment by the defenders that Mr Kelly had on one occasion obtained the pursuer's work diagram and left it out for her in order to be of assistance, as he had done in the past for other ticket inspectors. This does not however appear to me to assist in determining the relevancy of the pursuer's pleadings.
I have already summarised the conduct alleged against Mr Kelly. For the reasons explained above, I accept that the pursuer has an arguable case that that conduct constituted fault on the part of Mr Kelly. The defenders are however liable for the consequences of his conduct only if he was acting in the course of his employment. Mr Davidson effectively conceded that Mr Kelly's conduct was not such as to create vicarious liability under the present law and that concession appears to me to be correct. Bracebridge and Jones are not particularly helpful authorities, being concerned with the expression "course of employment" in a statutory context rather than with its meaning in a common law context (as Jones makes clear). A better analogy to my mind is Keppel Bus Co Ltd v Ahmad [1974] 1 W.L.R.1082, which I drew to counsel's attention, and which Mr Grant-Hutchison founded upon. It resembles the present case in that it concerns conduct which fell outwith the employee's authorised functions and was motivated by purely personal emotions. The common law doctrine is explained in Salmond and Heuston on the Law of Torts, 21st. ed. (1996), p.443, in a passage cited in Jones:
"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master .... On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside it".
A further passage on the following page appears to me to be particularly apposite to the present case:
"A master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business, or because it is committed while using the tools or equipment provided by the master. It must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it".
Whether Mr Kelly's conduct be regarded as deliberate persecution or as an innocent but upsetting campaign of courtship, on either view it was not committed in the course of his employer's business so as to form a part of it. He must in my opinion be regarded as indulging in an unrelated and independent venture of his own: a personal matter, rather than a matter connected to his authorised duties. I have nevertheless hesitated over excluding this part of the case from proof, given my allowance of proof on the direct case against the defenders. The factual issues in the two cases are however significantly different: one focuses on the pursuer's complaints to the defenders, their responses and their state of knowledge, whereas the other focuses on the pursuer's complaints to Mr Kelly, his responses and his state of knowledge. In these circumstances, and in light of my conclusion that the vicarious case is without merit, I shall exclude those averments (in Article 7) from probation.
Mr Grant-Hutchison's next submission was that the case based on contract should be withheld from probation. That case (so far as specific contractual duties are averred) is pleaded on the basis that a document produced by the defenders entitled "Harassment Policy and Code of Practice" formed part of the pursuer's contract of employment. According to the pursuer's pleadings, the document was introduced by the defenders at some point during the course of her employment. On her pleadings, she denies that she was aware of its existence, but Mr Davidson offered to amend the pleadings so as to convert that denial into an admission (by inserting at page 8D, "Admitted that the pursuer was aware of the defenders' Harassment Policy").
Mr Grant-Hutchison's primary submission, on this part of his argument, was that the pursuer was not offering to prove any circumstances from which it could be inferred that the document had been incorporated into the pursuer's contract of employment. Mr Grant-Hutchison's secondary submission was that damages for injury of the kind averred in the present case could not be recovered in an action for breach of contract. The latter submission, for which Addis v Gramophone Co Ltd [1909] A.C.488 was said to provide support, appears to me to be unfounded. Whatever room for argument there may be in cases where only mental distress is averred, the present case is one in which actual injury (in the form of a psychiatric illness) is alleged; and there is no rule that damages for such injury are irrecoverable in contract (see e.g. McGregor on Damages 16th ed.paras.96-97).
In reply Mr Davidson submitted that as the pursuer was aware of the document, and continued working for the defenders after its introduction, she must be taken to have agreed to its being incorporated into her contract. Mr Davidson also sought leave to amend the pursuer's pleadings by inserting after "procedure" at page 20C-D the following:
"In any event, it was an express term of the contract that the defenders would provide a supervisor on her return to work as hereinbefore condescended upon".
Mr Grant-Hutchison however opposed this amendment being allowed, as he would wish an opportunity to answer after taking instructions as to whether the defenders, when agreeing that a supervisor would be present, had intended to undertake a legally binding commitment. I agree that it would be inappropriate to allow the amendment proposed without allowing the defenders an opportunity to answer it.
The terms of the document are incorporated into the pursuer's pleadings. I note that it is of a fairly formal character and purports to impose obligations. For example, under the heading "The Purpose of this Document", it states:
"This document sets out the standards of behaviour expected from all employees. It :
....
- makes explicit those behaviours which will not be tolerated".
Elsewhere, the document lists types of behaviour which "will not be tolerated and may result in disciplinary action". The disciplinary implications, including summary dismissal, are described. The document also purports to impose obligations upon the defenders' management: for example, the manager "must" respond in various ways to complaints of harassment. In these circumstances (and on the basis that the pursuer's pleadings are amended to admit her awareness of the document), I am not prepared to say, without hearing evidence, that the document had no contractual status. There is a separate question in my mind whether, even if the document had a contractual status, it imposed the particular obligations averred (i.e. to relocate or dismiss Kelly within six weeks of the pursuer's initial complaint), but I was not addressed on that issue.
Finally, both parties invited me to exclude certain specific averments from proof. For the defenders, Mr Grant-Hutchison objected to the averment at page 16B that "the accident was caused by the fault of the defenders". I agree that the word "accident" is inappropriate in a case of this kind, and that a more apt expression could readily be devised, but I am not prepared to delete the averment: the pursuer's meaning is reasonably clear, albeit it is not very well expressed. Mr Grant-Hutchison also objected to the averments at pages 16C-D and 20A referring to a duty to employ "safe and competent fellow employees". Again, I agree that this is not very well expressed, but the pursuer's meaning is reasonably clear: that the defenders should have taken care to ensure that the pursuer was not required to work with members of staff who were liable to subject her to sexual harassment. For the pursuer, Mr Davidson objected first to the defenders' averment that Mr Kelly's alleged conduct was not in the course of his employment. This merely reflected Mr Davidson's argument as to the pursuer's case of vicarious liability which, for reasons already explained, I consider to be irrelevant. Secondly, Mr Davidson objected to the defenders' averment at page 9D that "the pursuer would frequently receive Valentine cards from members of staff". While the course of conduct alleged against Mr Kelly is different from the sending of a Valentine card, I am not prepared to say at this stage that no question can relevantly arise in relation to the pursuer's reaction to Valentine cards. That issue can best be dealt with, if and when it arises, at the proof.
In the whole circumstances, I shall allow the pursuer's pleadings at page 8D to be amended as proposed (i.e. to admit her awareness of the Harassment Policy document); and I shall sustain the defenders' second plea-in-law, so far as relating to Article 7 (i.e. the averments of vicarious liability) and exclude the averments in Article 7 from probation. The pursuer's first and fifth pleas-in-law fall to be repelled, as does the defenders' second plea-in-law (except insofar as already sustained). Quoad ultra I shall allow parties a proof before answer.
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OPINION OF LORD REED in the cause JANICE WARD Pursuer; against SCOTRAIL RAILWAYS LIMITED Defenders:
________________ |
Act: Davidson
Drummond Miller, W.S. (for
MacPhail & Co., Solicitors,
Glasgow)
Alt: Grant-Hutchison
Biggart Baillie
27 November 1998