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Cite as: [1999] ScotCS 177, 2000 SCLR 245

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OUTER HOUSE, COURT OF SESSION

01166/5/95

OPINION OF LORD REED

in the cause

ANGELA RORRISON

Pursuer;

against

WEST LOTHIAN COLLEGE and LOTHIAN REGIONAL COUNCIL

Defenders:

________________

Pursuer: Drummond-Young, Q.C., Jandoo; Allan McDougall & Co, S.S.C

Defenders: Mackay, Q.C., Sheldon; Simpson & Marwick, W.S. for first defenders

R J Macleod, G F G Welsh, Regional Solicitor, for second defenders

21 July 1999

This action came before me for a debate on Procedure Roll, at which the defenders sought to have the action dismissed.

It is difficult to summarise the pursuer's case. The main features, as averred, are however as follows.

On 17 August 1992 the pursuer, who is a qualified nurse aged 42, started work at West Lothian College, an education college in Bathgate which was at that time under the control of the second defenders. She was employed as a welfare auxiliary. Her duties related principally to welfare and first aid, and she was placed in charge of the first aid room and its cabinet. She understood that she might be expected to assist in areas other than welfare, but she was told that her welfare duties would take priority. She reported to a Mr Smith, who was the college registrar, or to Margaret Henning. She enjoyed the work and experienced no difficulties.

In November 1992 Marie-Christine Andrews began work at the college as personnel officer. Personnel matters had previously been dealt with at the second defenders' offices in Edinburgh. Later that month Andrews told the pursuer that the pursuer was to report to her. It appears from a letter incorporated into the pleadings that Andrews was the pursuer's line manager.

In late December 1992 Andrews summoned the pursuer to her office. In the office were a Mr Crawford, who was the safety officer, and Miss Muir, who was the trade union health and safety representative. The pursuer was marched to the first aid room by Andrews, Crawford and Muir, and felt humiliated as she walked past other staff. She was ordered to open the first aid cabinet and to justify its contents. She was criticised and humiliated by Andrews and Muir for keeping asthma inhalers in the cabinet (something which had previously been authorised by Mr Smith). Crawford stood by the door. Muir was shouting and pacing. Andrews repeated Muir's words in a patronising manner. The pursuer felt trapped, threatened and embarrassed. Andrews then ordered the pursuer to clear out the cabinet. As a result of this criticism and humiliation the pursuer was upset, had a severe headache and was unable to sleep.

For some weeks thereafter Andrews (who had no experience of first aid) took charge of what was to be kept in the cabinet, and told the pursuer that the cabinet was not to contain certain items including tweezers. The pursuer was confused, as no explanation was given. A member of staff subsequently complained about the absence of tweezers. Andrews was asked by a senior member of staff why there were no tweezers, and Andrews responded that she thought tweezers were a good idea and asked the pursuer why there were none.

As welfare auxiliary the pursuer had from time to time to arrange transport home for students who became unwell. She was told that the arrangement had changed. She had not been consulted, and she again became confused as to how to carry out her tasks. She sought an explanation from Andrews but was not given one.

During the period following the cabinet incident, the pursuer began to have headaches with feelings of dizziness. She was signed off work by her general practitioner, who diagnosed her as having anxiety/depression for a period of six weeks between February and April 1993. She was referred to a community psychiatric nurse.

On 1 March 1993 the pursuer wrote to Andrews expressing concern about the location of the first aid room, and stating that the pursuer was anxious, upset and angry and that she was feeling pressure and frustration at her work situation. The pursuer received a reply dated 7 April 1993 stating that no alternative location was available for the first aid room, and that the pursuer on her return was to work in personnel when she was not carrying out her welfare duties. The pursuer was led to believe that her accommodation in the personnel office was a temporary measure.

On 1 April 1993 the college became a self-governing institution under the control of the first defenders. Statutory provisions made arrangements for the transfer of contracts and liabilities.

On 10 April 1993 the pursuer returned to work. In addition to her welfare duties, she was required to carry out clerical and secretarial tasks which included filing, photocopying and answering the telephone. She had no training in clerical or administrative work, as the defenders knew. In May 1993 Andrews notified staff that the pursuer was working in the personnel department and that anyone needing first aid should report to reception and ask for the pursuer to be paged. A number of lecturers complained to the pursuer that it was inappropriate for sick students to wait at reception before receiving attention. Whenever the pursuer was contacted she required to justify to Andrews where she was going. As a result of Andrews's treatment of her, the pursuer was made to doubt her capabilities in relation to her welfare and first aid duties.

As time went on the pursuer was given increasing clerical and menial work in the personnel department. She was treated by Andrews as an office junior. She was humiliated by Andrews when she was told how to answer a telephone. Andrews would place dirty mugs on the pursuer's desk and instruct her to wash them. Andrews would make gestures and innuendoes suggesting the pursuer was stupid. Members of staff assumed the pursuer was no longer employed as a welfare auxiliary. At times when the pursuer was carrying out her welfare duties, Andrews told the pursuer that she was needed in personnel. Andrews interfered with arrangements which the pursuer had made in connection with her welfare duties. Andrews introduced new rules regarding welfare duties without informing the pursuer. The pursuer's professional integrity was undermined by Andrews. The pursuer was pressurised and criticised by the defenders' staff in relation to her clerical and administrative skills.

Other problems concerned the pursuer's use of her time. On one occasion when the pursuer wanted to take a student to a doctor she was told that the college could not spare her unless it was an emergency. Andrews refused to allow the pursuer to continue with flexible time for her tea and lunch breaks. The pursuer would be paged during her tea and lunch breaks, and Andrews did not provide "cover" for the pursuer during her breaks. The pursuer mentioned this to Henning, who was Andrews's line manager, and Henning made excuses for Andrews on the basis that she was new. Andrews was critical of the pursuer if she arrived late after completing her welfare duties.

The pursuer was placed at the desk nearest the door in the personnel office, and consequently was the first person seen by members of staff who came to the office with personal problems. In addition, because she answered the telephone, members of staff telephoned her with personal problems. The pursuer was unable to help, as she was not qualified to deal with personal problems, and found that frustrating.

The pursuer was frequently paged while she was engaged in tasks instructed by Andrews, and often while she had been left by Andrews in charge of confidential papers. She would be anxious about the confidential papers while carrying out her welfare duties. She was not able to carry out her welfare duties in a relaxed manner because she was so busy doing work for Andrews. She explained these problems to Andrews, but Andrews did nothing to help. Andrews became obsessed with how long it took the pursuer to carry out her welfare or first aid duties. She questioned whether the pursuer was taking too long. She insisted that the pursuer telephone her to inform her that she was with a student or attending to someone. The pursuer was made to feel incompetent and that she could not be trusted. This heightened her self-doubt and lack of confidence. She began to have overwhelming feelings of agitation and panic.

As welfare auxiliary, the pursuer was a member of the college's health and safety committee. She was not informed of the dates and times of meetings, and was given no information about health and safety matters. She raised this with Andrews, who said that she did not know why the pursuer was not being informed of meetings but would try to find out. Some time later Andrews told the pursuer that she had made the decision not to allow the pursuer to attend the meetings.

Andrews changed the pursuer's tasks frequently, and on a number of occasions changed matters affecting the pursuer without informing or consulting the pursuer. One of these changes concerned the lock to the first aid room, which was changed. The pursuer was not provided with a key. She discovered the change when she required to treat a student. She asked Andrews and Henning for a key, but was not provided with one, and had to ask the janitor to give her access to the first aid room. Another change concerned paging. The pursuer noticed that she was not being paged as often as she used to be. She discovered that Andrews had instructed the reception staff to assess the medical care required by students before deciding to page the pursuer. Andrews had not informed the pursuer about this. The reception staff were not qualified to perform such a task, which fell within the pursuer's responsibilities. The pursuer became anxious that students who needed to see her were being denied access to her. She was concerned that she would be blamed, as the person responsible for the welfare of students, if anything went wrong. A third change was that Andrews instructed the pursuer that if a student required more than an elastoplast then the pursuer should do nothing about the problem but pass it on to a doctor or send the student home. The result was that students were sent home unnecessarily. This practice was queried by lecturers. These and other changes seriously undermined the pursuer's confidence. The pursuer raised these changes with Andrews, and the question of access to the first aid room with Henning, but did not receive any satisfactory response.

Andrews began a campaign of criticising the pursuer. She required the pursuer to report to her before responding to being paged, and to tell her where the pursuer was going and how long she would be away. Andrews told the pursuer that welfare work should not take more than one or two hours per week, whereas much more time was in fact required. She began checking up on the pursuer's activities. She subjected the pursuer to interrogation, and regularly harassed the pursuer in the course of her work. The pursuer found her unsympathetic, unreasonable and impossible to work with. The pursuer felt that Andrews was deliberately bullying her. She raised the matter with Andrews, but Andrews pretended not to know what the pursuer was talking about. The pursuer asked Andrews if she had any complaints regarding the pursuer's work. Andrews replied that she did not, but she still continually criticised the pursuer.

In March 1994 the pursuer was shown a new job description with the title "clerical assistant/welfare auxiliary". The duties specified were mostly clerical. The pursuer was given 30 minutes in which to accept or reject the new job description, and it was implied by Andrews that there would be no job for her if she did not accept it. This placed the pursuer under further stress, anxiety and pressure.

As a result of Andrew's treatment of her, the pursuer began during the latter part of 1993 to experience further psychological distress. She experienced palpitations, sweating, over-breathing and feelings of panic. Her doctor prescribed a betablocker. These symptoms continued with increasing severity during 1994. On 29 March 1994 the pursuer felt dizzy and unwell at work. She was taken to her health centre where she was diagnosed as having stress and anxiety. It is pleaded that:

"As a result of the foregoing actings of the said Andrews towards the pursuer and the failure of the said Andrews and Margaret Henning to show any concern for her welfare, the pursuer has suffered psychological injuries hereinafter condescended upon".

I have set out the pursuer's complaints at length, but they can I think be summarised as concerning three issues:

(1) Unjustified criticism by Andrews, resulting in self-doubt, loss of confidence and anxiety.

(2) Pressure on time, imposed by Andrews, resulting in stress and anxiety.

(3) A conflict between her understanding of her role and Andrews's understanding, resulting in self-doubt, loss of confidence, stress and anxiety.

The pursuer's case of fault is based on the vicarious liability of the defenders for Andrews and Henning. It is said that Andrews knew or ought to have known that if the pursuer was treated in the way that she was (summarised as "constant harassment, criticism and humiliation") there was a serious risk that her mental and psychological health would be affected and that she would sustain "psychological injury". It is said that both employees knew or ought to have known that "after the pursuer's first mental breakdown" there was a real risk of repetition of mental breakdown if she was again exposed to the circumstances complained of. It is further said that they should, in view of the pursuer's queries and complaints, have realised that the pursuer was suffering serious psychological distress and that there was a real risk of repetition of mental breakdown.

In relation to damages the pursuer avers:

"She suffered psychological damage in the form of severe anxiety and depression. She has not worked since suffering a nervous breakdown on 29 March 1994 ... She was examined by a clinical psychologist who diagnosed her as having 'understandable and justifiable psychological distress'. ... She suffered severe anxiety, panic attacks and loss of confidence and self-esteem. She had acute psychological distress. She suffered depression. She continues to become visibly distressed and tearful when thinking about her experiences with the defenders. .... The pursuer's emotional symptoms ... constituted psychological damage. Said psychological damage continues to persist and the pursuer will require further psychological treatment".

Junior counsel for the defenders addressed me on the footing that the pursuer's case was based on liability for negligence. Junior counsel for the pursuer, on the other hand, began his submissions by telling me that the defenders had misunderstood the case, which was not based on negligence at all, but on a deliberate course of conduct intended to cause harm. In this regard he emphasised the use of the words "harassment" and "humiliation" in the pleadings, which implied deliberate and calculated wrongdoing. When I suggested that the averments of fault were more consistent with a case based on negligence ("knew or ought to have known .... It was reasonably foreseeable ..."), as also was the relevant plea-in-law ("The pursuer having suffered loss and damage through fault and negligence ...."), he eventually conceded that the relevancy of the pursuer's averments had to be tested on the basis that the case was based on negligence. This concession was repeated by the pursuer's senior counsel. He explained that the case was based on a course of conduct involving a large number of separate acts. It was impossible to say, in advance of the evidence, whether particular acts were intended to cause harm or were acts which a reasonable person ought to have foreseen as being liable to cause harm. The relevancy of the pursuer's averments must therefore be assessed on the footing that the case was based on negligence, and terms such as "harassment" and "humiliation" must be treated merely as a general description of the specific acts described elsewhere in the pleadings.

The concession made appears to me to be appropriate, in view of the absence of specific averments of acts of deliberate wrongdoing, and in view also of the averments and plea regarding fault, which do not give notice of a case based on intentional wrongdoing. In my view such a serious allegation should be the subject of unequivocal averment, both as a matter of fairness and because a case presented on that footing raises distinct legal issues (e.g. as to the type of damage recoverable, and as to the vicarious liability of the wrongdoer's employer). Given that the present case is to be regarded as one based on negligence, it is unfortunate to find language used in which an intention to harm is implicit (something on which I remarked also in Ward v Scotrail Railways Ltd 1999 S.C.255, 262). I say that particularly in view of the publicity which has been given to the pleadings in this case.

The action being based on negligence, the pursuer can recover only if she has sustained psychiatric injury in the form of a recognised psychiatric illness. For this proposition it is sufficient to cite White v Chief Constable of South Yorkshire [1998] 3 WLR 1509 at 1518 per Lord Goff of Chieveley; at 1539 per Lord Steyn; and at 1548 per Lord Hoffmann. In the present case, junior counsel for the pursuer conceded that there was no suggestion of a psychiatric illness. He submitted that a psychiatric illness was unnecessary, on the authority of Morrison v Laidlaw 1994 S.L.T.359 and Graham v Hall 1996 S.L.T.596. Those cases are not to the point. They are straightforward examples of the recovery of damages for pain and suffering consequent upon physical injury. In such a case, the award of damages can of course compensate for psychological consequences falling short of a psychiatric illness. That has nothing to do with the principle laid down in White (as the speeches in that case make clear, e.g. per Lord Steyn at 1539D). Senior counsel's submission was different. He accepted that there must be a recognised psychiatric illness, not mere depression or anxiety. He submitted however that the averment of a "nervous breakdown" was sufficient, as that was a concept accepted by psychiatric opinion. He suggested that a nervous breakdown had been treated as sufficient in Walker v Northumberland County Council [1995] I.C.R.702.

The pursuer's pleadings in the present case do not appear to me, fairly read, to give notice of any intention to prove that she has suffered from a recognised psychiatric illness. I have already quoted the averment that as a result of the conduct complained of the pursuer suffered "psychological injuries"; and the averments that Andrews ought to have foreseen the risk of "psychological injury". I have also quoted the averments of damage, which are of "emotional symptoms [which] constituted psychological damage" and "psychological distress" requiring "psychological treatment". There is an averment that she suffered depression, but in its context (unlike in Ward v Scotrail Railways Ltd) that does not appear to mean clinical depression as distinct from low mood; nor did the pursuer's counsel suggest otherwise. This is the context in which the averment that the pursuer suffered a nervous breakdown on 29 March 1994 has to be understood. I also have to bear in mind the earlier averment about what happened on that date:

"She felt dizzy and unwell. She experienced stress and anxiety. She was taken to her Health Centre. She was diagnosed as having stress and anxiety".

In these circumstances, I do not consider that the reference to a "nervous breakdown" gives fair notice of an intention to lead evidence that the pursuer suffered from a recognised psychiatric illness. There is no reference anywhere in her pleadings to her having suffered a psychiatric illness or to her having ever required to be treated by a psychiatrist. I am not sure what senior counsel meant by saying that the concept of a "nervous breakdown" has been accepted by psychiatric opinion. The decision in Walker v Northumberland County Council is of no assistance in the present context, partly because it contains no discussion of the point now in issue, and partly because in that case there was evidence from psychiatrists to the effect that the plaintiff was suffering from a psychiatric illness: see e.g. at pp.705B-D and 707A-B. The question raised in the present case is whether the pursuer's pleadings provide a proper basis for the leading of such evidence, bearing in mind the need for fair notice.

In practice, it is common for pleadings to aver that a pursuer was diagnosed by a psychiatrist as suffering from a specified condition, or to aver more shortly that the pursuer was suffering from a specified condition which is recognised in DSM-IV (the American Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, 1994) or in ICD-10 (the World Health Organisation's International Classification of Diseases and Related Health Problems, Tenth Revision, Vol.1, 1993). Reference to these classifications is helpful as a matter of fair notice, since they "represent the two main diagnostic classifactory systems used by the psychiatric profession": Law Commission Report on Liability for Psychiatric Illness (1998) (Law Comm No.249), para.3.2, note 7. In the present case, I was told by the defenders' counsel, without contradiction, that the pursuer had not pleaded any disorder which was recognised in DSM-IV; and there was no suggestion that the position was any different in relation to ICD-10. I appreciate that what constitutes a recognised disorder is a matter for expert evidence, and I am prepared to proceed on the basis that the classifications given in ICD-10 and DSM-IV are not necessarily conclusive (cf. paras. 3.27-3.29 of the Law Commission's Report). Nevertheless, the pursuer's pleadings must give fair notice that it is her intention to lead evidence that she has suffered a recognised psychiatric disorder, and they should specify what disorder that is. In my view that has not been done in the present case. There is no suggestion that she has ever been diagnosed by a psychiatrist as suffering from a recognised psychiatric disorder, and there is no suggestion that her condition is recognised by any psychiatrist or body of psychiatric opinion as constituting a psychiatric disorder. It follows that an action based on negligence cannot succeed. The action accordingly falls to be dismissed.

That is sufficient to dispose of the case. But in case my conclusion on that point is in error, and the pursuer's averments are regarded as a sufficient basis to establish psychiatric injury, I shall also consider the other submissions presented to me. These focused primarily on the question whether the pursuer could possibly establish that any relevant duty of care was owed to her by either Andrews or Henning.

In his speech in Alcock v Chief Constable of South Yorkshire [1992] A.C.310, Lord Ackner observed (at 400):

"Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illness caused in other ways .... attracts no damages".

The same principle was stated by Brennan J in Jaensch v Coffey (1984) 155 CLR 549, a decision of the High Court of Australia:

"A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by 'shock'. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness": p 565.

The requirement that there be "shock" does not appear to have been referred to in earlier cases in England and Wales or in Scotland, although it was in practice a feature of such cases. The point arose in Alcock because certain of the plaintiffs had not directly witnessed the plight of their relatives involved in the Hillsborough disaster, and had suffered not "immediately created nervous shock" but a "more elongated, and, to some extent, retrospective process" (at 417 per Lord Oliver of Aylmerton). It was held that, in those circumstances, there was not sufficient proximity between the plaintiffs and the defendant to create a duty of care.

In Alcock the court was only concerned with plaintiffs who had suffered psychiatric illness as a result of the death, injury or impairment of another: "secondary victims", as they have come to be known. Since Alcock, liability for purely psychiatric injury has expanded beyond the area of accidents involving physical injury (to the pursuer or to others) or the risk of such injury. One of the areas of expansion has been claims concerning the careless communication of traumatic information (e.g. Allen v City & Hackney Health Authority [1996] 7 Med L.R.167 and AB v Tameside & Glossop Health Authority [1997] 8 Med L.R.91), where (in the English cases) the existence of a duty of care has been conceded. The other growth area has been claims concerning psychiatric illness induced through stress at work. Three cases in particular were discussed before me: Johnstone v Bloomsbury Health Authority [1992] 1 Q.B.333; Walker v Northumberland County Council [1995] I.C.R. 702; and my own decision in Ward v Scotrail Railways Ltd 1999 S.C.255.

Johnstone v Bloomsbury Health Authority concerned the hours of work of a junior doctor and focused on the relationship between the express contractual provisions in that case and the employer's duty to take reasonable care for the safety of his employee which is normally implied in a contract of employment. The allegation was that the plaintiff was being required to work excessive hours and was being deprived of sleep, and that this was liable to cause stress, depression and anxiety in the plaintiff himself with consequence risk of mistakes or inefficient treatment of patients. The existence in general of an implied duty of care to protect an employee from such consequences was taken for granted in the argument (which concerned an application to strike out the claim): the issue was whether such a duty was qualified by the express terms of the particular contract in question. The decision is however relevant in so far as the Court of Appeal appear to have accepted (the contrary not being argued) that the employer's general duty to take reasonable care not to injure his employee's health extended to an injury to mental health which was the foreseeable result of excessive working hours.

Walker v Northumberland County Council concerned a social services manager who suffered two nervous breakdowns as a result of over-work. After the first breakdown he returned to work on the understanding that he would receive assistance with his duties. That assistance was however withdrawn after a short time, and the plaintiff suffered a second breakdown, which left him permanently unfit to return to work. He succeeded in recovering damages on the basis that the second breakdown (unlike the first) was the result of his employer's breach of a duty of care. The judgment (like those in Johnstone) did not address the case-law on liability for psychiatric injury: the issues were analysed within the framework set by authorities concerning (physical) health and safety at work.

Colman J took as his starting point the employer's duty to take reasonable care for the safety of his employees. He acknowledged that the decided cases had almost all concerned physical injury as distinct from psychiatric injury, but observed that "there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care" (at 710). Colman J therefore focused on the question whether there had been a breach of the general duty to take reasonable care for the employee's safety.

Although the present case is concerned with the employer's vicarious liability for one employee's negligence towards another employee, rather than with the employer's own duty of care, the judgment of Colman J in Walker is plainly relevant and I have found it of considerable assistance. I am however inclined to approach matters in a different way, and to focus on the question whether any relevant duty of care existed, rather than to assume the existence of a relevant duty and to ask whether it was breached. Indeed, I would approach matters in that way even if, as in Walker, the case had been based on the employer's duty of care for the safety of his employees. As Lord Steyn pointed out in White v Chief Constable of South Yorkshire [1998] 3 W.L.R.1509, 1545:

"It is a non sequitur to say that because an employer is under a duty to an employee not to cause him physical injury, the employer should as a necessary consequence of that duty (of which there is no breach) be under a duty not to cause the employee psychiatric injury".

Lord Hoffman's speech is to the same effect (at 1552).

In their discussion of Walker, counsel for the defenders took as their starting point Lord Steyn's description in White of a primary victim as a person "within the range of foreseeable injury", which they treated as including foreseeable psychiatric injury. No argument was presented to me to the effect that White (or Alcock) might support a more restrictive approach. Counsel then drew my attention to certain of the factual circumstances which were treated in Walker as being relevant to foreseeability. In that regard, it appears that in Walker, even prior to the first breakdown, the plaintiff's immediate superior was aware in general terms that social work could be extremely stressful; he knew that excessive work stress could cause mental illness; and he knew that the plaintiff was under considerable work pressure and therefore stress (see at 708H-710B). Accordingly, it was reasonably foreseeable to the superior that by reason of stress at work there was in general some risk that the plaintiff might sustain a mental breakdown (at 713D). On the other hand there was no evidence that the employers had hitherto encountered mental illness in other employees in similar positions. Colman J concluded that, unless the employers ought to have known that the risk to the plaintiff was materially higher than the ordinary level of risk, their duty of care did not require them, as a matter of reasonable conduct, to take any special steps in respect of the plaintiff (at p 713F). Colman J considered relevant correspondence and meetings between the plaintiff and the employer's staff, and concluded that it was not such as should have alerted the employer to a higher risk than normal - a "material" risk, as Colman J put the matter at p716H. The position was however different when the plaintiff returned to work after his first breakdown, as the employer was by then aware that the plaintiff was unusually vulnerable to psychiatric damage, and that there was therefore a material risk of such damage if steps were not taken to protect the plaintiff. I find that approach of assistance in the present case, where the question of foreseeability of psychiatric injury is critical to the existence of any duty of care by the pursuer's colleagues.

Ward v Scotrail Railways Ltd is of more limited assistance, as it decided merely that the pursuer's allegations of negligence on the part of her employers should go to proof before their relevance was determined. It resembles Walker however insofar as I regarded as important the averments that the employers had been made aware of the problem (of offensive behaviour of a sexual nature, causing severe stress), and had been reminded of it repeatedly, some considerable time before they took any action (the action taken being, according to the pursuer, inadequate and inappropriate).

In the present case, counsel for the pursuer accepted that it was essential for the pursuer to establish that Andrews and Henning ought to have foreseen that the pursuer would suffer not merely emotional upset but psychiatric illness. In that regard, they relied on the following:-

(1) That in her letter to Andrews of 1 March 1993 the pursuer had expressed concern about the location of the first aid room and had stated that she was anxious, upset and angry, and was feeling pressure and frustration at her work situation.

(2) That the pursuer had mentioned to Henning the fact that she was unable to leave the college during her breaks due to an absence of "cover".

(3) That the pursuer had explained to Andrews certain of her problems (it is not clear which) concerning conflicts between her welfare duties and her other duties.

(4) That the pursuer had raised with Andrews her concern about not being informed of health and safety meetings.

(5) That the pursuer had asked Andrews and Henning for a key to the first aid room.

(6) That the pursuer had raised with Andrews certain changes affecting first aid procedures.

(7) That the pursuer had felt that Andrews was bullying her and had raised "the matter" with her.

I can find nothing in these matters (or elsewhere in the pursuer's pleadings) which, if proved, could establish that Andrews and Henning ought to have foreseen that the pursuer was under a material risk of sustaining a psychiatric disorder in consequence of their behaviour towards her. They might have foreseen that she would at times be unsatisfied, frustrated, embarrassed and upset, but that is a far cry from suffering a psychiatric disorder. Many if not all employees are liable to suffer those emotions, and others mentioned in the present case such as stress, anxiety, loss of confidence and low mood. To suffer such emotions from time to time, not least because of problems at work, is a normal part of human experience. It is only if they are liable to be suffered to such a pathological degree as to constitute a psychiatric disorder that a duty of care to protect against them can arise; and that is not a reasonably foreseeable occurrence (reasonably foreseeable, that is to say, by an ordinary bystander rather than by a psychiatrist) unless there is some specific reason to foresee it in a particular case. I can see no such reason in the present case.

Accordingly, even if I had not decided to dismiss the action because of the absence of a relevant claim of psychiatric injury, I would in any event have dismissed the action because there are no relevant averments to support the existence of a duty of care.

Finally, counsel for the defenders also argued that the action was irrelevant in respect that it was brought against both defenders on the basis that they were jointly and severally liable in damages; whereas, it was argued, the statutory provisions under which the first defenders took over the management of the college from the second defenders were inconsistent with joint and several liability.

The relevant statutory provisions are contained in the Further and Higher Education (Scotland) Act 1992 (c.37). Section 11(1) of the Act provides that, with effect from 1 April 1993 or such other date as the Secretary of State may appoint ("the first transfer date"), each college of further education as may be prescribed shall cease to be under the management of the education authority which immediately before that date was responsible for its management. It was common ground between the parties that the college where the pursuer worked had, in accordance with section 11(1), ceased to be under the management of the second defenders with effect from 1 April 1993. Section 11(2) provides that with effect from the first transfer date there shall be established for each college prescribed by an order made under section 11(1) a body corporate to be known as "the Board of Management" of that college. It was common ground that the first defenders were the Board of Management established for the college where the pursuer worked, with effect from 1 April 1993.

The transfer of liabilities and obligations generally is addressed by section 16 of the Act. The critical provisions of section 16 are as follows:

"(1) Except as the Secretary of State otherwise directs, on the first transfer date there shall be transferred to and vest in the Board of Management of each college of further education specified in an order made under section 11 of this Act all property, rights, liabilities and obligations mentioned in subsection (2) below.

(2) The property, rights, liabilities and obligations referred to in subsection (1) above are -

...

(c) all rights, liabilities and obligations of the authority which, immediately before the first transfer date, subsisted in respect of the college;

...

but excluding such property, rights. liabilities and obligations as are mentioned in subsection (5) below.

...

(5) Subsection (1) above shall not apply to -

...

(d) any liability of such an authority arising under -

(i) delict;

...

arising out of an act or omission where the cause of action accrued before the first transfer date;

...".

I heard a relatively brief argument on the interpretation of these provisions, which focused on the question whether the pursuer's cause of action against the second defenders (if any) had accrued before 1 April 1993 and therefore fell within the ambit of section 16(5)(d). I was not referred to any authorities. Nor was there any discussion of the possibility that the second defenders' liability (assuming that there was a liability) might not have subsisted on 1 April 1993 but might have come into existence at a later date (e.g. because actionable damage, in consequence of Andrews's continuing wrongful conduct both before and after 1 April 1993, was first suffered after 1 April 1993).

In the circumstances, I do not propose to deal with the argument in detail. If I had considered that the pursuer had a case that Andrews and Henning had acted wrongfully towards her, and that she had suffered actionable damage in consequence,. then I would have allowed a proof before answer.

In the whole circumstances, however, I shall sustain the first and seventh pleas-in-law for the first defenders, and the first plea-in-law for the second defenders, and shall dismiss the action.