Scottish Court of Session Decisions

In this action the pursuer seeks damages in respect of a depressive illness which he avers was caused by the stress to which he was subjected while "in effect" employed by the defenders.

The pursuer's factual averments are prolix in the extreme and far removed from the concise summary to be expected of Scottish pleadings. However, in essence the pursuer complains of an overloaded and disorganised system of work exacerbated by an overbearing and bullying management style adopted by his immediate supervisor, one David Williamson. Although separate cases of fault are pled against the defenders personally and on the basis of their vicarious responsibility for the acts of their supervisor, there are many passages in the pleadings which clearly result in the two sets of complaints being inextricably linked. This, in the end, Mr Davidson accepted on behalf of the pursuer.

What I consider to be the principal argument directed against the relevancy of the pursuer's pleadings finds its focus in a single sentence which appears after no less than some eight or nine pages of factual averments in Article 2 of the Condescendence. I refer to the sentence at p.14B-C of the Closed Record which, in its unamended form, read, "The pursuer was not able to refuse work given to him." As Miss Shand pointed out, this assertion is fundamental to the relevancy of the pursuer's case since the pursuer's averments anent an excessive workload presuppose that the pursuer was somehow obliged to do anything and everything asked of him, regardless of its practicability and the hours involved. As Miss Shand also pointed out, however, the difficulty for the pursuer is that he offers absolutely no explanation as to how this extraordinary state of affairs came about. No mention whatever is made of the terms of his contract with the defenders, whether express or implied, and there is, for instance, absolutely no suggestion that the pursuer - a man of 50 years or more - was in some way disadvantaged or vulnerable to exploitation. Even more remarkable, the pursuer, himself, avers that he paid his own tax, "latterly under a 741 Certificate" (although counsel was unable to tell me what that was) and that his remuneration depended upon the number of service calls which he made as a double-glazing engineer. Quite contrary to the import of the crucial averment to which I have referred this strongly suggests that the pursuer's workload was in large measure within his own control.

Mr Davidson, for the pursuer, sought to persuade me that enough had been averred to go to proof before answer and referred me to the authority of Johnstone v Bloomsberry Health Authority [1992] 1 Q.B. 333. However that authority simply reinforces my view that in a case of this sort one would normally expect the context to be set by reference to the contractual terms which govern the underlying relationship between the parties. As indicated above there might, of course, be circumstances independent of contract which could provide an adequate context but, in that connection, I do not regard as sufficient the bare assertion embodied in the words which I allowed to be added by amendment to the sentence above quoted, viz, "because if he had disobeyed the defenders' instructions he would have been dismissed." Apart from anything else the reference to "dismissal" emphasises the need for clarity of pleading as to whether the pursuer was actually employed or only "in effect" employed by the defenders and, if the former, on what sort of terms.

In the result I am of opinion that, in the absence of further explanation, the pursuer's averments of what, to all intents and purposes, is presented as a servile existence are patently and fundamentally irrelevant.

That is enough for a decision in case but I should mention, for the record, that, if I had been against her so far, Miss Shand did make a number of subsidiary submissions regarding the detail of the two cases of fault pled. In the circumstances I do not find it necessary or helpful to go through these but it is, I think, right that I should deal briefly with three submissions made by Miss Shand which were quite independent of the matters so far dealt with. These were, firstly, that the pursuer had failed to aver a "recognised psychiatric illness", secondly, that he had in any event failed to aver facts and circumstances from which it could be inferred that such an illness was reasonably foreseeable by the defenders and, thirdly, that he had in any event failed to aver what precautions should have been taken to avoid such injury.

I would have been against Miss Shand on all these matters. Unlike the recent case of Rorrison v West Lothian College and Lothian Regional Council, 21 July 1999 (Unreported) the pursuer here avers that he suffered from a "mental" or "depressive" "illness" which is said in terms to be "a recognised psychological illness" and which, according to the averments, had in any event a number of physical symptoms and was from time to time treated by different forms of medication. All this is far removed from mere emotional reaction or distress and, in my opinion, it is impossible to say at this stage that the present case must necessarily fall on the wrong side of the line discussed by the House of Lords in White v Chief Constable of South Yorkshire [1998] 3 W.L.R. 1509; c.f. Ward v Scotrail Railways Ltd 1999 S.C. 255. Likewise, bearing in mind the averments that the pursuer twice broke down in tears in the presence of his immediate supervisor, I would not have been prepared to say that the case must necessarily fail on the issue of foreseeability. And, lastly, as regards the matter of precautions, I note that there are averments to the effect that the pursuer's workload should have been reduced. While for the reasons indicated earlier in this opinion these averments may seem somewhat imprecise, on the hypothesis that the case is otherwise relevantly stated, I am of opinion that they also would have sufficed for proof before answer. As it is, however, because of the irrelevancy of the case in other and more fundamental respects I shall uphold the defenders' first plea-in-law and dismiss the action.