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Cite as: [2000] ScotCS 191

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OUTER HOUSE, COURT OF SESSION

OPINION OF LORD CARLOWAY

in the cause

DONALD FRASER

Pursuer;

against

THE STATE HOSPITALS BOARD FOR SCOTLAND

Defenders:

________________

Pursuer: J. R. Campbell, Q.C., R. J. MacLeod; Ketchen & Stevens, W.S.

Defenders: Macdonald, Q.C., Brodie; The Scottish Health Service Central Legal Office

11 July 2000

MERITS

EVENTS

(a) Background

[1] For many years the pursuer's life was intimately involved with the State Hospital, Carstairs. The Hospital holds persons convicted of criminal offences by the courts or otherwise ordered to be detained by legal process. Many of these persons are violent and the nurses have to cope with that aspect of their work. Because of the extreme danger to the public posed by an escape of a patient, the over-riding priority is one of security. That danger had been exposed in 1975 when two patients had escaped and murdered a nurse, a policeman and a member of the public.

[2] The pursuer's father had worked at the Hospital from 1951. The pursuer started work as a staff nurse in January 1974, having completed a period of training at Shotts. In January 1976 he was promoted at a very young age to charge nurse, grade G. He was the youngest person in Britain to have been promoted to that position at that time. For the next eighteen years he continued to work as a grade G charge nurse. His work spanned several management regimes. His personal file (Pro. 7/8) revealed no problems with his work.

[3] A glowing appraisal for 1989/90 noted:

"Mr. Fraser's combination of experience and clinical expertise enables him to fulfil the nursing requirements of his patients to a high standard.....Mr. Fraser develops and trains staff working with him very effectively. He provides an excellent role model in his own approach to updating his professional knowledge.....Mr. Fraser plans, organises and controls his staff ably and efficiently. He delegates appropriately and recognises the strengths and weaknesses of his staff. He analyses problems intelligently and this combined with his experience enables him to reach sound decisions.....His written reporting is of an extremely high standard and sets an example to all.....Mr. Fraser enjoys positive relationships with his patients. He is respected by senior and junior colleagues.....Mr. Fraser is clearly the leader of his team.....Mr. Fraser has made the difficult transition to multi-disciplinary working very well.....He undoubtedly has the abilities for a middle management post at senior nurse level. He may wish to pursue this direction in his career."

[4] He did not reach middle management level. Nevertheless, he continued to obtain good reports. The appraisal for 1993/94 recorded (Pro. 7/8 p.99):

"He maintains accurately all necessary staff and patient records, his work is characterised by methodical and meticulous attention to detail.....Donnie's experience and sound clinical knowledge enables him to form accurate assessments and judgments.....His reports are accurate and concise both in written and oral form".

This appraisal, completed by the ward manager in October 1994 continued (p. 100) :

".....He displays a firm but fair approach to all patients....Donnie's strength is his excellent organisational and communications skills. His administrative work is methodical and meticulous."

[5] Latterly the pursuer was the grade G team leader in charge of a shift on Tay Ward, which had re-opened at the turn of the year 1993-94. The pursuer's view of himself was as a bit of a dinosaur or one of the old guard in a environment changing from primarily containment to a more liberal regime.

[6] A report from Dr. Ian Tierney (Pro. 6/13) who saw the pursuer at the end of 1996 recorded accurately the pursuer's general views as follows:

"He remembers that when he started working at Carstairs it was a particularly grim place but for a number of years prior to the early nineties the regime had become more enlightened without placing the staff at risk. However, in the early 1990s there were management changes which Mr. Fraser felt were dangerously liberal in that the physical structure of the wards and management of wards in terms of reduced searches, greater unearned privileges etc. made the management of wards a far more risky and difficult procedure. He had had increasing difficulty running his ward as a safe place for staff and patients with the increasing demand from management for auditing of all aspects of ward management in an increasingly lax atmosphere. He felt that the criminals on the ward ran the place and that his hands were tied and he had no backing from management.

.....He maintains that his relationship with management was difficult anyway because he couldn't work with the management team that was in place. He had applied for the ward manager's job and then withdrawn his application when he realised that his management style was incompatible with theirs."

[7] During the course of 1995, the defenders had embarked upon a re-grading of the nursing staff. Only a limited number of grade G posts were to remain. Interviews with the pursuer in relation to re-grading were carried out in December 1995 and he seemed resigned to the fact that he would not be retaining his grade G status but would become a grade E albeit with a protected salary for five years. This is what happened eventually on 14^th January 1996 (Pro. 7/4).

[8] Although I am sure that the pursuer remained capable of performing adequately as a team leader during 1994, by the end of that year at the latest, he had become disillusioned with the management. In turn, given that attitude to management, he must have had serious concerns about his own future at the Hospital. Sooner or later these concerns were bound to have some effect on his work.

[9] In due course, the events about which this case is concerned occurred. In various reports (infra) these events were said to have left the pursuer with feelings of anger amounting to rage, vitriolic hatred of the management and frustration. I formed the impression that, at the time of these events and at the proof, the pursuer was of the view that he knew how to run a ward better than his management did. I do not think that he was correct in this. It was clear that during his evidence he still felt a great deal of anger and bitterness about the actions of the management. This did have a material effect on his evidence which was at times so exaggerated or biased as to be unacceptable. For that reason, as will become clear, I rejected his evidence on several points especially when it was either not supported or was contradicted by either documents or other testimony which I did find reliable. I seldom disbelieved the pursuer but often found his evidence unreliable.

(b) The Hierarchy, Tay Ward and the Christmas Party

[10] A shift in a ward comprised the team leader and four others. The others would include two qualified nurses of grade D or E. There were three shifts per twenty-four hours. The pursuer usually worked the first day shift from 7 a.m. to 2.30 p.m. whereas Alexander (Sandy) Jackson was the team leader on the following shift. Each ward had an overall manager who was the immediate superior of the team leaders. The ward manager usually worked from 9 a.m. to 5 p.m. His position was much more administrative than operational. The team leader was, in practical terms, in charge of what happened on the ward. Above the ward manager and supervising the nursing staff generally was the Nursing Services Manager. At the material time, acting in that post was Stephen Milloy. In charge of security generally was the Director of Security, Archibald Finlayson. In overall charge of the Hospital was the general manager, Dick Manson.

[11] There were a variety of different wards at Carstairs. Tay Ward was a mixed sex ward with perhaps twenty male and ten female patients. There were different types of patients on the ward ranging from those with learning difficulties through to those with psychopathic personalities. The ward was all on one level. Each patient was accommodated in a separate room leading off a corridor. Running at right angles to the corridor there was a hallway off which lay the ward office and sundry communal areas (Pro. 7/12). The communal areas could be sealed off and each bedroom could also be locked. There was a vestibule near the outside entrance to the ward. In the vestibule area were lockers where the patients could store personal items which were surplus to their daily requirements.

[12] In December 1994 there was a Christmas party in Tay Ward. The pursuer was not on duty at the time but had been earlier in the day. He was to learn of the incidents at the party when he returned to work on the next day. Sandy Jackson was on duty at the time of the party. At the party, which started at about 5 p.m., staff noticed after a while that three patients were behaving in a loud and uninhibited way. They were found to be under the influence of alcohol. The ward manager, Barbara Wilson, who had only taken over a few weeks before, decided that the three patients should be returned to their rooms. This was achieved with two but the third, a celebrated patient called Noel Ruddle, struck a member of staff and had to be restrained and kept in a "safe" room. Drink is not permitted in the wards and a breach of that rule is regarded as a serious matter.

(c) The Ward Search

[13] The day after the episode, a ward search was carried out together with intensive questioning of the patients. This commenced before the pursuer's return to duty. Certain items were found in Mr. Ruddle's room. He had been in Tay Ward only for four or five months. He was a particularly dangerous patient whose background as a dealer in illegal drugs had included homicide using a Kalashnikov rifle and aiming the gun at a policeman. This was in late 1991 and he had been in the hospital since about then. He had originally been diagnosed as schizophrenic but this was changed by one of the consultant psychiatrists, Dr. Tom White, to a psychopathic personality disorder due to alcohol and substance abuse. Mr. Ruddle could become particularly dangerous if he secured access to drugs or alcohol. These could cause a relapse into paranoid schizophrenia. He was intelligent and a smooth talker who had to be observed very carefully because of his charming and manipulative manner. Although wearing a mask of sanity, this concealed a remorseless individual with no concern for others.

[14] Prior to his move to Tay Ward, Mr. Ruddle had been in Tinto Ward. The pursuer had also been in that ward for some years. Mr. Milloy said that members of staff had informed him that it had been the pursuer who had secured favourable rooms for Mr. Ruddle in both of these wards. In Tay Ward it was certainly the case that Mr. Ruddle had managed to secure a room with private facilities. I found the pursuer's evidence on this aspect a little confusing. At one point he seemed to be saying that he had not been involved in the allocation of rooms since they all occurred before his arrival on the Ward. At another point he seemed be saying that the allocation was much to his dismay but it had occurred when he had been temporarily away from the Ward. Ultimately this issue became one element in the management's suspicion of the pursuer but I did not feel able to form any conclusion on whether there was any substance in the allegations. There was no evidence (other than the hearsay) to support them but, on the other hand, the confusion in the pursuer's evidence resulted in me being unable to accept his denial on the point.

[15] In Mr. Ruddle's room were found some legitimate medicines, alcohol in the form of at least two small lemonade bottles full of whisky, cans, glass bottles, batteries, tins, glue, bluetack and aerosols. Some of the items were on open view but others concealed. Because of the number of items, it was clear that they had been accumulated over a period of some time. For that to have occurred, collusion with a member or members of staff was necessary. This was the view of Mr. Finlayson and I accepted it given that staff had frequent opportunities to see what was in a room since they required to attend at the rooms to open them up in the mornings and close them at night quite apart from the regular and random searches which were carried out .

[16] Bluetack was a problem because of its potential to take an imprint of a key. Glass bottles could be used as weapons. The discovery of the alcohol was extremely serious especially when amphetamine sulphate (speed) was also found, this time in Mr. Ruddle's paint box in the education block. The pursuer was not directly responsible for security in the education department. It was to the education block that Mr. Ruddle had been regularly escorted and where he was taught by a member of staff, whom I will call Ms. S. Mr. Finlayson had organised a search of the whole hospital but it was only the items pertaining to Mr. Ruddle that were found. Coupled with the finding of the letters (infra), it was clear that serious breaches of security had occurred.

[17] Mr. Ruddle's room had been searched about three weeks prior to the party. The pursuer did not carry out searches personally. Others would do the searches and enter them as having been done in a search book. He would countersign the entry. Robert Matheson, a grade G registered mental nurse based in Solway Ward at the time, expressed the view that, if this had happened on his ward he would have felt that he had let himself down and had not been doing his job properly. In his view, if a charge nurse had been doing his job properly, the items would not have been found in Mr Ruddle's room.

[18] Stephen Milloy had been at the State Hospital for some eight years at the time, initially as a ward manager. He had previously worked with the pursuer and found him to be a fairly good charge nurse, very safety conscious but not the most innovative. Mr. Milloy was given the task of interviewing the senior Tay Ward staff after the items had been found. He discovered that certain policies about searches and the observation of patients had not been implemented on Tay Ward. He interviewed the pursuer two or three times during the early part of the investigation. He put it to him that things could not have been right in Tay Ward for the items to be found. The pursuer's response was that there had been nothing wrong in Tay Ward. He did not perceive any problem other than perhaps the Patients' Charter. Mr. Milloy was very concerned about this attitude. It contrasted with that of the other team leader, Sandy Jackson, who recognised that there had been a problem.

[19] In evidence, the pursuer regarded the proposition that he should check whether a search had been carried out properly as foolish since that would be doing the work twice. Although he recognised that the findings in the search were a problem and purported not to be seeking to avoid his responsibilities, the pursuer remained careful to avoid actually accepting any form of real responsibility for the findings in his ward. Despite his acceptance that the search which had taken place three weeks previously could not have been carried out properly, he did not accept responsibility, as a team leader, for that.

[20] I am of the view, accepting in particular Mr. Matheson's evidence on this, that the pursuer was responsible, as a team leader, for ensuring that his team carried out their work properly and part of that had to involve checking to see that searches were being done. It is difficult to see how that could be achieved without occasionally checking the work of his team. I reject the pursuer's notion that that would have been foolish and, on the contrary, find, in accordance also with Mr. Milloy, that it was a necessity. I can therefore well understand the management concerns (infra). I agree also with Mr. Matheson that it is surprising that a team leader would not accept responsibility in these circumstances.

(d) The remark to the Director of Security

[21] When the pursuer was first seen by Archibald Finlayson, the Director of Security, and asked about the recoveries made, the pursuer said something along the lines of :

"My God, Archie ! If I had been on you wouldnae have got half of that." (the pursuer's version) or

"You wouldn't have found half these items if I had been on duty."(Mr. Finlayson's version)

[22] The pursuer maintained that this was simply a jocular, glib, throwaway or "off the cuff" remark and indeed purported to laugh when recalling it in evidence. He had played football and golf with Mr. Finlayson and was making the remark to him as a friend rather than as Director of Security. At the time of the remark, the pursuer maintained, he had not realised the full seriousness of the situation. I found that surprising. By this time he knew of the violent episode and the finding of alcohol. These in themselves were serious and ought to have been recognised as such. Mr. Finlayson regarded his remark as serious. Indeed, Mr. Finlayson was concerned and surprised that such a remark had been made. He was so taken aback, given that the items related to a potentially homicidal patient, that he reported it to Mr. Manson.

[23] I accept that the remark to the Director of Security may well have been flippant and made without sufficient, or any, forethought. But even in that context, it was a serious matter. It certainly was not funny and the fact that it had been made was bound to reflect badly on a team leader who made it and, for that reason, bound to be regarded as worrying. It could legitimately be taken as a reflection on the pursuer's attitude to his work and suggest that his attitude was far too casual. I can well understand why the management would treat the remark in the way it did. Mr. Milloy considered the incident to have been the worst which had occurred in his eight years at the State Hospital and that he could not have confidence in a person with an attitude such as that reflected in the remark. Mr. Manson also viewed the remark as very worrying given the security breaches which had occurred in Tay Ward.

[24] I pause to observe that the pursuer was given some support on the issue of the remark by Ronald Deuchar, the ward manager of Grampian Ward, a registered mental nurse and a grade above the pursuer. He said that the remark was one which could have been made by any of the team leaders at the time. However, I reject that proposition. There was no evidence that anyone else made any remark of a similar nature at that or any other time. Mr. Jackson for example said he would not have made it and did not think it was funny.

[25] As a generality, I thought that Mr. Deuchar was doing his best to support the pursuer and undermine the defenders to the extent that his evidence was in parts exaggerated and unacceptable. It transpired that Mr. Deuchar had left the State Hospital in about May 1997 to become a police officer. However, before that, he had been in charge of Forth Ward when one patient had attempted to strangle another. Following upon a review in November 1996, Mr. Deuchar had been downgraded and transferred rather like the pursuer was in this case (infra). He seemed to be resentful of management at the Hospital and I was of the view that he would take any reasonable opportunity to cause the defenders damage in evidence. As will be seen, on the other hand, I did not reject all of his evidence for that reason.

[26] In January the pursuer was removed from active ward duties and put in the central nursing office. He went to his new general medical practitioner, Dr. Charles Anderson, shortly after this. Dr. Anderson had also worked at Carstairs and knew the pursuer as a co-employee. The entry for 19^th January 1995 (Pro. 6/12) reads:

" has just been dismissed from Tay Ward. No reasons given.....# r 5^th MC bone - punched a wall in frustration"

[27] The Pursuer was then off work until 23rd February. However, he declined the anti depressants offered by Dr. Anderson at that time.

[28] Mr. Jackson, who like the pursuer was a grade G, was also moved, this time to Kelvin Ward, the learning difficulties ward, some time in mid February. This move was to a less dangerous ward in order to re-assure management that he had learned a lesson. Unlike the pursuer, he does not seem to have considered himself under supervision and there were no specific restrictions placed on his activities. He was, however, to work closely with the ward manager in his new posting. Unlike the pursuer also, however, Mr. Jackson accepted fairly quickly the deficiencies which had occurred in Tay Ward and that he was to some extent responsible. This acceptance was the major difference between the reactions of the main Tay Ward team leaders after the finding of the items.

[29] No action was taken against the ward managers, either the recent appointee, Ms. Wilson, or the old manager, Mr. Teuk, who had been transferred elsewhere in the State Hospital before the incident. This was because Mr. Teuk had acknowledged responsibility and Ms. Wilson had only just started in the ward. Furthermore, Mr. Teuk was no longer in charge of a ward and there were therefore no security fears.

(e) The letters

[30] Letters were also found in the search, disguised as lawyers' correspondence and contained in a shoebox in Mr. Ruddle's locker. Access to these lockers could only be gained through a nurse who would have held the key. If the letters had been picked up by Mr. Ruddle in the educational department then he would have still required the assistance of a member of staff to conceal them. If the letters had come in through the mail then they would have been read and registered by a member of staff. The letters contained sexually explicit material and indicated that there was some form of intimate relationship formed between Mr. Ruddle and Ms. S. The existence of such a relationship between a patient and a member of staff was unheard of in the past and represented a considerable threat to security. The letters were from Ms. S. to Mr. Ruddle and, because of the volume involved (somewhere between 100 and 200), had accumulated over a period of between one year and eighteen months during which the relationship had been allowed to develop. The time period given by the witnesses varied but I accepted that of Mr. Matheson, who had been given the task of reading the letters. He spent some two days reading and I was of the view that he was the person in the best position to estimate the duration of the relationship. Although the relationship had probably not involved sexual intercourse, Mr. Matheson was of the view that the content of the letters was such that Ms. S. would have "done anything" for Mr. Ruddle.

[31] One problem was that the letters had since been destroyed, including the critical one to which I will shortly make reference. The letters remained Mr. Ruddle's property but the defenders had been concerned about leaks to the press and, in particular, quotations from the letters. Because of that, they were destroyed with Mr. Ruddle's consent. I did not find anything sinister in this and drew no inference adverse to the defenders from it.

[32] One of the letters from Ms. S. contained a phrase which stated, according to the pursuer, "I'll need to remember to give D a bung for allowing me to see your room." There were some variants on the phrase. Mr. Deuchar recalled it as "I'll have to remember to thank that nurse D for allowing us up to room 4 together". Mr. Finlayson thought the reference was to "charge nurse D". Mr. Matheson thought it said "We must remember to thank D for letting us up to your room on that occasion."

Mr. Matheson had actually flown down to Cornwall to interview Ms. S. at her brother's home in Newquay where she had gone after the relationship became known. However, she would not say who "D" was. She had been told by her professional advisors not to say anything. I am content to proceed on the basis that the letter referred only to "D" albeit that on any view "D" had to be a nurse of some authority in the ward. Ms. S. should never have been allowed in a patient's room. In order to achieve this in Tinto Ward, where the episode occurred, she would have to have been let through four doors in total and someone in authority on the Ward would have had to have opened them.

[33] Some time after the party and probably into the New Year, the pursuer came under suspicion as being the person who had facilitated the relationship between Mr. Ruddle and Ms. S. The pursuer had become aware of the suspicion before he was called to a meeting with management (Mr. Milloy and Alex Brogan, the Human Resources Director) on 3^rd March 1995.

(f) The Meeting of 3^rd March.

[34] The pursuer initially said in his evidence that he thought that the meeting held on 3^rd March was to be purely an informal non disciplinary one and that he was on his own at it. According to the pursuer, neither the existence of the suspicion nor the allegation put at the meeting were deemed to be of any great significance because, as he put it, he had nothing to hide and it was only to be an informal meeting. However, that evidence was somewhat undermined when the letter of 3^rd March 1995 (Pro. 6/7) was put to him. As a result, he accepted, as must have been the case, that it was a far more significant meeting since he had obtained representation at it from several members of the Scottish Prison Officers Association. At one point, the pursuer maintained that he did not remember this meeting too well but I found that surprising given its obvious importance at the time. I did not accept the pursuer in relation to his memory of the meeting.

[35] I regard the letter of 3^rd March 1995 (Pro. 6/7) as containing, so far as it goes, a broadly accurate description of what was discussed at the meeting the same day. The pursuer had involved his Union and must, because of that, have been aware that this was an important event with potential disciplinary or other substantial consequences. The points for discussion would have been known to him, at least in general, prior to the meeting. These points, which were discussed, were as set out in numbered paragraphs 1, 2 and 3 on the first page, namely:

"1. Your role in the management of Tay ward, and the perceived lack of leadership provided to staff, also the laxity in relation to certain procedures and the general attitude of staff towards certain "prisoner" patients.

2. The comment you made to the Director of Security after the search of Noel Ruddle's room.

3. The possibility that you may be involved in allocating favours to Noel Ruddle/Ms S. in return for some kind of reward - the reference to "D" in Ms. S's letter."

[36] The pursuer's position on each point was broadly the same as that which he took up in evidence. This was that there was nothing really wrong with his role in Tay Ward, the comment he made was jocular and he had never allocated favours in return for a "bung".

[37] It is not necessary for me to determine just who "D" might have been and little evidence was adduced upon which I could have based any positive finding. Indeed, during the course of cross examination, counsel for the pursuer objected to any questions designed to elicit evidence that might demonstrate that the pursuer was "D" on the basis that the defenders' record at page 19 (lines 3 & 4) only extended to an averment that there was reason to believe that the pursuer might be "D". In response, counsel for the defenders said that he only intended to go as far as his record permitted. The objection was not renewed in submissions and in any event the defenders did not stray from their record. I will therefore formally repel this objection.

[38] The pursuer in evidence denied that he had facilitated the relationship. He denied expecting a "bung". Because of what appeared to me to be a somewhat nervous demeanour in the witness box when answering questions about facilitating the relationship, such nervousness not otherwise being a common feature of his testimony, I was not prepared to accept the pursuer's evidence in this area. That, of course, does not necessarily mean that the opposite is true. However, looking at such evidence as the management had, I am in no doubt that they were justified in having strong suspicions about the pursuer's involvement. This is not simply because of the reference to "D". The pursuer was able to refer to three other possible people with an initial "D". Rather it is the combination of the initial letter with (i) the prolonged nature of the relationship in two wards in each of which the pursuer had also at some point been in charge as a team leader (Sandy Jackson had not been on Tinto Ward); and (ii) the finding of the letters in a ward of which he was a team leader. The management also thought that the pursuer's lack of insight into the search findings and the suspected room allocation formed part of the circumstantial evidence.

[39] The pursuer maintained that the outcome of the meeting was simply that it was decided that he should be put on a two-week trial period in Grampian Ward under the ward manager Ronald Deuchar with a view to determining whether he could take charge of a ward again. The plan, according to the pursuer, was that if Mr. Deuchar were satisfied after two weeks that he could return to normal duties then that is what would happen. He said that that is what did happen and he did return to his normal duties as a team leader.

[40] I did not accept the pursuer's evidence that there was simply to be a two week probationary period in light of the clear statement of the outcome in the letter. Having expressed dissatisfaction with his leadership style and the comment to the Director of Security, the letter had stated that the management accepted that they could not prove the pursuer's involvement as "D". The result was that the disciplinary action to be taken was a written warning. This was not appealed. Furthermore, at no stage did the pursuer seek to invoke the grievance procedure in his contract. He maintained that, at this point, he simply wanted to get on with his work.

[41] The letter concluded:

"We feel that to assist you in regaining your professional focus, you should be moved to Grampian ward with immediate effect, where you will work closely with the Ward Manager and the Nursing Services Manager who will help you to clarify your professional responsibilities, and again become a valued member of the nursing team."

[42] This letter says nothing about a two-week trial period nor does it mention any form of demotion or restriction on the type of work to be performed. As a written record of the decisions, taken made on the day of those decisions, I am of the view that it is likely to be the most accurate version of events and I accept it as such.

[43] The extent to which the pursuer was allowed to operate as a team leader after this letter became a point of issue in the case. I deal with that point later. Suffice it to say at this stage, I do not think that there was a significant downgrading of what the pursuer was entitled to do on the ward at that time. It is clear that he was to be moved to Grampian Ward where his work was to be closely supervised but that is all.

[44] The pursuer was very angry about the outcome of the meeting. He took the continued allegations about his being "D" in, as he put it, "extreme bad grace". His outward stance was that he wanted the whole matter fully investigated (e.g. having Ms. S. tell her side of the story) and was resentful that this was not done. He maintained that such an investigation was his "basic right". He purported to feel aggrieved that the matter was not so investigated. More important, he became angry and bitter as he considered that he was being made the "sacrificial lamb". In that state of affairs, it was by then evident that, if his attitude were to remain in that mode, he was destined to be on a collision course with management.

(g) The May and early June Meetings

[45] A meeting was arranged between the pursuer and Mr. Manson on 22^nd May. Mr. Manson had organised this meeting to advise the pursuer that he was not interested in pursuing the disciplinary aspects of the matter further but to try to return the pursuer to his former productive self.

[46] The pursuer seemed a little confused between this meeting and the subsequent one and this is not surprising. At these meetings the old allegations concerning "D" were repeated and he was told that he was endangering hospital security. No other evidence had come to light since the March meeting to suggest anything different than that which was known in March and the pursuer asked why the matter was being revisited. The pursuer said that he was accused by Mr. Manson of taking a "bung" in the form of either £100 or a bottle of whisky. Mr. Deuchar also said that this accusation was made at one of the two meetings he attended. Mr. Milloy said initially that he could not recall such an allegation being put and, on being pressed, that it was not made at all. Mr. Manson also denied making such a suggestion. However, on balance, I think that it or something similar was said at one of these meetings since it is consistent with what the management suspected had happened.

[47] At the end of May meeting Mr. Manson was trying to resolve a situation which was developing into an impasse but the pursuer was taking a very defensive attitude, assuming, as was probably correct, that the management did not trust him. The meeting failed to achieve anything positive but Mr. Manson proposed that a further meeting should occur.

[48] A further meeting with management (this time Mr. Manson and Mr. Milloy) took place on 6^th June. Mr. Deuchar was present at this meeting and the pursuer had undoubtedly been given advanced warning. That warning came partly in the form of Mr. Deuchar asking the pursuer to call at his (Mr. Deuchar's) house where he said to him:

"Donnie, they're going to get you" or "They're after you Donnie, They're going to get you. Mr. Manson needs a body and you're it."

[49] Mr. Deuchar maintained that he had been told by Mr. Milloy that Mr. Manson had been given a roasting at the Scottish Office for not sacking the pursuer. Mr. Milloy denied telling Mr. Deuchar this. Mr. Manson denied even being at the Scottish Office at that time far less being pressurised to find a scapegoat. Mr. Deuchar did confirm that he had told the pursuer that he thought management was going to sack him. There may have been a rumour about a roasting which reached Mr. Deuchar's ear but I do not accept its accuracy. I do accept, however, that Mr. Deuchar did communicate with the pursuer along the lines quoted above.

[50] As a generality, at the two meetings in late May and early June, there were acrimonious and heated discussions during which Mr. Manson may well have adopted a robust stance. I suspect, however, that the pursuer gave as good as he got. The second of these meetings was particularly acrimonious. Old ground was gone over again but no accommodation was reached. Mr. Manson even asked the pursuer whether he wanted him to sack the pursuer. At the end, Mr. Manson asked him to take a week's holiday and consider his future. This was because Mr. Manson was of the opinion that the pursuer's approach was quite out of step with the other staff in the State Hospital. But the pursuer had no intention of considering his future at that stage since, in his words, the Hospital was "his life". He also understood that Mr. Deuchar had said his performance was satisfactory. The pursuer remained very "disgruntled"

(h) The Meeting of 27^th June

[51] The pursuer stayed off work since he did not consider that he was allowed back. A week became three weeks and he started telephoning to see what his position was. He eventually got through and a further meeting was arranged for 27^th June. His wife was telephoned to the effect that he should again bring union representation from national level. He did so. At this meeting the management team was Mr. Manson, Mr. Milloy, Mr. Brogan and Mr Finlayson. Mr. Deuchar was not there. In advance of the meeting, the pursuer said he had no specific knowledge of what was to be discussed but he was "fearing the worst" and assumed that it would be the old allegations once again. So it transpired. This meeting was a watershed in relations between management and the pursuer.

[52] The pursuer was highly critical of Mr. Manson's conduct at this meeting, describing him as overbearing, intimidating and pathetic. Mr. Milloy rejected these criticisms and said that such an approach was not in accordance with Mr. Manson's management style. A letter from Mr. Manson to the pursuer dated 20^th August 1991 (Pro. 7/8 p. 113) was referred to as indicating that Mr. Manson did have an aggressive style but I did not find the wording demonstrated that in the context in which it was written. I am, once more, sure that Mr. Manson took a robust stance at the meeting but I find the pursuer's description exaggerated.

[53] Mr. Finlayson's impression of this meeting, and he had only been present at one, was that the pursuer was determined not to accept any responsibility for past events and was being advised by his Union not to say anything. That advice accorded with Mr. Manson's understanding. Mr. Milloy recalled one of the Union representatives pressuring Mr. Manson into stating whether he had a charge to be brought or not. Mr. Manson's view was also that the S.P.O.A. officials had taken an aggressive line. They wanted the pursuer exonerated and returned to duties. The management did not wish to pursue this disciplinary process. Indeed it is difficult to see how that could have been achieved given the decision in March. Although the pursuer maintained that one of the Union representatives had told him afterwards that he could not believe what had gone on in the meeting with his thirty-years' experience of these matters, no Union official gave evidence.

[54] In any event, the pursuer's position on the merits remained that he wanted a full investigation. His denials were being rejected without inquiry. On the other hand, the management wanted him to accept some responsibility for what had gone on in Tay Ward before matters could be progressed. They were doing this not with a view to him confessing his guilt but with a view to his returning to work as a charge nurse. An impasse was reached. By the end of this meeting management probably realised that the prospects of the pursuer being rehabilitated were fast fading. In short, the meeting of 27^th June marked the end of any prospect of the relationship between the pursuer and the defenders' management ever being repaired. From then, I think that there existed sufficient polarisation of views that the relationship had to end one way or another.

[55] In the situation with existed at the time of this meeting, Mr. Finlayson, as Director of Security, had substantial concerns about the prospect of the pursuer returning to work as a charge nurse because of his failure to grasp the reality of the situation, i.e. that there had been deficiencies in the set up in Tay Ward for which he had to bear some responsibility. He would not have agreed to the pursuer returning to charge nurse work so long as he was adamant that he bore no responsibility. Mr. Manson would have been bound to pay particular heed to Mr. Finlayson in this area.

[56] The eventual outcome of the meeting was that the pursuer was required to follow a restricted, and ultimately written, regime. Mr. Finlayson, who said he had input into its terms so far as the security aspects were concerned, maintained that the pursuer was put on the regime because of his failure to accept responsibility. It was true that the particular failure related only to one manipulative patient and not generally. However, it was necessary to ensure a safe environment in a situation where the pursuer was regarded as a risk to that safety. Mr. Finlayson had held the pursuer in high regard prior to the Tay Ward incident but it was the pursuer's lack of insight into the problems which had made Mr. Finlayson alter his view of the pursuer. If the pursuer could not alter his approach to the problems then he was bound to remain a danger because the same situation could occur again. I was impressed with his evidence and considered his comments to be measured and fair. In summary, Mr. Finlayson said that the regime was not intended to bring about the pursuer's "downfall" nor was it intended to rehabilitate the pursuer but to ensure the safety of the ward. I accept that evidence.

[57] Although Mr. Milloy said that the regime was intended in some way to benefit the pursuer, I reject that evidence as inherently improbable. I cannot imagine how such a regime could produce such a benefit. Furthermore, the idea of benefit runs contrary to the polarisation of views which I think had occurred by this time. It may previously have been the intention to achieve rehabilitation of the pursuer, but the prospect of that disappeared at the meeting of 27^th June. However, it follows from my acceptance of Mr. Finlayson's evidence that I reject the pursuer's contention that the regime was malicious. It certainly amounted to a form of demotion and in that sense could be classified as "punitive" in a disciplinary context. I do not, however, regard it as punitive if, by that, is meant something intended to cause harm.

[58] Objection was taken by counsel for the defenders on the basis of lack of record, to questions being put to Mr. Finlayson designed to elicit evidence that the actions the defenders had taken were deliberate with a particular purpose in mind as distinct from being merely negligent. I allowed the evidence under reservation. Standing the pursuer's averments at page 12 to the effect that the program was punitive and malicious, calculated to lead to alienation, I will repel the objection.

(i) The Regime

[59] No written details of the regime were forthcoming and the pursuer sent an e-mail to Mr. Milloy on 6^th July (Pro. 6/9) as follows:

[60] "As previously requested could you please provide me with a copy of my three month programme, which I only saw briefly on 29/6/95."

[61] Still no written document was forthcoming and the pursuer involved his Union to write a letter on 24^th July (Pro. 6/10) again requesting a copy. The program was then made available (Pro. 6/1). The program was certainly a restrictive one for a grade G charge nurse to follow. It stipulated that the pursuer:

"1) .....will remain in Grampian Ward for the full duration of the 3-month
period.

2).....will not take charge of any shift.....

3).....will not hold the main Ward Security Keys.....

4).....will not hold the Medicine Keys.....

5).....will not participate in recreational escorts.....

6).....will work under the supervision of an "E" Grade Staff Nurse.....

9).....will not liaise with any external agencies.....

10).....will not be allocated key patients.

11).....will not supervise the patients visitors nor the handling of.....mail."

The regime also involved Mr. Deuchar making fortnightly reports to Mr. Milloy covering his performance and these reports were to:

"12).....form the basis of a full review at the end of the 3 month period by the General Manager, Nursing Services Manager, Director of Security and Director of Human Resources."

[62] The pursuer was not happy when he received this. Many of the tasks which he was prohibited from doing were those he would either have done himself or delegated as team leader. The pursuer said that he was reduced to being a dogsbody supervised by two E grade "lassies" who were far from happy taking on that role. This is a little exaggerated but it certainly meant that the pursuer was being permitted to perform in a much less responsible role than previously.

[63] An issue arose as to whether the regime which followed was any different from that which the pursuer had already been under in Grampian. The pursuer was firmly of the view that it was radically different given that he had previously returned to full duties as a team leader in Grampian. He was not challenged on this in cross-examination. However, when Mr. Milloy and Mr. Manson came to give evidence for the defenders, they expressed the view that the regime reflected the status quo in Grampian so far as the pursuer's duties were concerned. At the continued diet of proof, counsel for the pursuer moved me to allow certain additional productions to be received, namely extracts from the nursing records of one patient at the hospital (Pro. 6.28) and the general ward reports over the period 1^st March to 6^th June 1995 (Pro. 6.29). A commission and diligence to recover the records of the one patient was also required. The ward reports provided a short summary of the events on the shift and dealt with certain specific security aspects. Counsel also moved me to allow him to recall the pursuer and Mr. Deuchar on this matter. This was all with a view to refuting the evidence of Mr. Manson and Mr. Milloy on this point. The motions were opposed but I granted them on the basis that fairness required me to permit the pursuer to respond to the evidence of Mr. Manson and Milloy, the content of which had not been put to him in cross examination.

[64] The volume of ward reports revealed that the pursuer was often, sometimes on a daily basis, the person who filled in the general report on the ward at the end of a shift. For example, he had completed the reports for 27^th to 29^th and 31^st March; 2^nd to 5^th and 7^th April; 27^th to 30^th April and 1^st and 2^nd May, 8^th to 12^th, 14^th to 17^th, 20^th to 23^rd, 26^th, 27^th, 29^th and 30^th May and 1^st June. According to the pursuer, it was normally (although by no means always) the person in charge of the shift, the team leader, who would complete the report. He would not do so if he had been called away for some reason but generally he wrote the report including specific security sections such as the cutlery check. Mr. Deuchar gave evidence that the pursuer's compilation of the ward reports indicated that the pursuer was in charge of the relevant shift. Mr. Milloy, on the other hand, who was recalled by the defenders said that any staff or enrolled nurse could sign the ward report and it would not necessarily be the team leader. This was also the view of Gordon Ritchie who was also recalled by the defenders.

[65] I prefer the evidence of the pursuer and Mr. Deuchar on this matter given that they are substantially supported by the ward reports. It is my view that the reports would naturally be completed by the person in charge unless there was a special reason for that not to occur. The fact that the pursuer did sign so many of the reports on a regular daily basis convinces me that the pursuer was effectively back working as a team leader. It follows that I reject the evidence of Mr. Manson and Mr. Milloy in so far as it suggested that the pursuer had previously been subjected to a similar regime before the written one was imposed. That does not mean, however, that I am rejecting their evidence as incredible. They may well have thought that the supervision of the pursuer was much greater and the tasks he was being permitted to do were much lesser than was actually happening. However, I have little doubt that Mr. Deuchar was permitting the pursuer to act effectively as a team leader in the ward albeit that this is probably not what the management thought was occurring. Mr. Finlayson put the matter on the basis that that prior to the imposition of the regime the pursuer was still under supervision and had not returned to full duties but was not subject to the strict requirements of the written regime. This overview is probably accurate.

[66] Mr. Deuchar made his reports which, I thought surprising, the pursuer not only saw but about which he was asked to be satisfied by Mr. Deuchar. These reports provide some information on the pursuer in the period after the June meetings.

The Reports

[67] The pursuer described working to the regime as being extremely difficult. He was "extremely angry". He said it was a devastating and terrible thing to happen to him. He was humiliated and ashamed. The anger, he said, stemmed from the unfounded allegations against which he had been unable to defend himself. The regime was the "catalyst" and he started going downhill from there. Indeed, during his evidence when recalled, he said that there had been nothing to make him anxious or depressed until June. However, the pursuer's stance became one of : "I'll not let them beat me." He continued to attend work without significant absences. Mr. Deuchar supported the pursuer in general in relation to his mood during the regime period. He described the pursuer as very stressed, angry with his "teeth gritted at the whole situation" and feeling that there was no way out for him. Rather colourfully he said that "stress was shining out of his eyes".

[68] Mr. Milloy said that he was on the wards perhaps once per week for between 20 and 25 minutes. He would see the pursuer on at least some of these occasions but did not detect any signs of mental disturbance or of clinical depression. He did notice that he was frustrated and "browned off" but was surprised that he was prescribed anti depressants within weeks of finally stopping work in January 1996.

[69] There were four reports produced in total although there were probably six or seven (including a final one) actually written. These were dated 11^th and 25^th August and 15^th and 29^th September (6/3-6). I thought it surprising that all of the reports were not available on the pursuer's personnel file from where Mr. Milloy had extracted them for use in Court. I thought it also odd that there were no notes on the file commenting on the reports or documenting any review or indeed any of the meetings held with the pursuer. Nevertheless, ultimately I did not feel that the absence of these matters could be given any sinister connotation.

[70] The reports were written and signed by Mr. Deuchar but, in view of the fact that they were to be seen by the pursuer before submission, I placed limited weight upon their contents except that I accepted that they probably were an accurate reflection of the pursuer's feelings over the months after the imposition of the regime. In particular, I accepted in general the thrust of the passages quoted below.

[71] I should add also that I thought there was some force in Mr. Finlayson's evidence that he was concerned about the accuracy of the reports given their source as Mr. Deuchar. Mr. Finlayson thought that Mr. Deuchar was very sympathetic to the pursuer. I took that to mean that Mr. Finlayson did not consider Mr. Deuchar to be entirely objective so far as the pursuer was concerned. It was Mr. Finlayson's position that despite the contents of the reports, his security manager continued to report concerns about the pursuer to the effect that he was still not accepting responsibility for the Tay Ward problems. Standing my earlier observations on Mr. Deuchar, I agreed with Mr. Finlayson's caution in treating the contents of the reports are generally accurate.

[72] The first report, dated 11^th August, records :

"previously to annual leave (9/7/95 2 weeks) was very hostile towards senior management, at times appeared under extreme stress and had difficulty coping with circumstances. Continually stated he had not done anything untoward."

[73] This report records that the grade E staff nurses were initially ill at ease with the regime and this does, I think, lend support to my view that this regime was not in place before the end of June meeting. It also makes reference to the initial "extreme difficulties" experienced by him in the early stages of the regime but records some improvement since his return from holiday.

[74] The second report, dated 25^th August, records:

"attitude much more improved.....remains angry over personal accusations.....performing well at present.....remains unhappy about present situations/restrictions"

[75] Performing well, said the pursuer, was in the context of his serving meals, washing the dishes and floors. The third report, dated 15^th September, records :

".....remains disgruntled with regard to initial accusations against him.....becomes frustrated due to limitations placed on him"

[76] The fourth report, dated 29^th September, records :

".....remains concerned why the 'case' on him was re-opened, feels he has not been given an answer to this question.....

.....performs well within himself, obviously restricted by his programme, due for review of his situation within the next few days."

[77] The reports serve to confirm, at least in part, my general view that over the months following upon the meeting at the end of June, the pursuer remained angry and resentful at the way he had been treated. Again, that to say he was devastated is going too far but he would no doubt feel humiliated and perhaps ashamed. He may well have wished a fuller investigation too although I am not convinced that such a desire necessarily stemmed from innocence as distinct from his view of his prospects of success based on the known deficiencies of proof. Mr. Deuchar said that he discussed the reports with Mr. Milloy and Mr. Manson at meetings occurring during the three month period. Objection was taken by the defenders to this line of evidence on the basis of a lack of record (which the pursuer accepted). I allowed the evidence under reservation and the objection was renewed in submissions.

[78] During submissions, counsel for the pursuer proposed an amendment to deal with his lack of record by inserting at page 12 of the closed record after "fortnightly reports." the following:

"In addition, said Deuchar advised the defenders' management of said opinion (that the pursuer should not be expected to work under such stress) at meetings held within said three month period."

[79] This motion was opposed on the basis of prejudice to the defenders. Although the only relevant witnesses were all available at the proof and gave evidence to counter the averment, counsel for the defenders maintained that the defenders were prejudiced because they had not been able to investigate the matter in advance of the proof. I was unable to see any material prejudice. The evidence had emerged in the course of the pursuer's proof and the defenders had ample time to investigate it with the only two relevant witnesses, Mr. Manson and Mr. Milloy, both of whom were on their list of witnesses. The averment was relevant and assisted in focusing the issue between the parties. I accordingly allow the amendment. Since this cures the complaint raised in the objection, I also repel that objection.

[80] Mr. Deuchar claimed that during these meetings he had told them that the pursuer was under severe stress and ought not to be at work. He expressed the view that the pursuer ought to be suspended pending an investigation and be referred to Occupational Health. I do not accept that excessive stress was being reported to management to any material extent during the regime period and I consider Mr. Deuchar's evidence to be exaggerated on this aspect. It remains significant that the only reference to stress in the reports is in the very first one. I accept the evidence of Mr. Milloy that when he saw the pursuer during this period he saw no signs of mental disturbance or clinical depression and I also accept that the reason for that was because there were no such signs prior to the pursuer finally stopping work.

(k) The Final Straw

[81] The three months never came to an end and there was no formal review as had been provided for in the written terms. Although Mr. Milloy said there was some form of final review, I do not think there was one of the type contemplated in the written regime (Pro. 6/1 para. 12). Mr. Manson, for example, did not see the pursuer after the end of June meeting and did not see the reports either.

[82] The pursuer eventually went off work on 6^th January 1996. He never returned. He maintained that he had been unable to cope with the regime and although he "put a face on it" at work ("put on a show"), he became tearful at home and began drinking too much. In his words, he "disintegrated as a person". He spoke to Mr. Milloy at one point and asked him what benefit the regime was but claimed to have had no reply and therefore said it was malicious. Mr. Milloy, on the other hand, said that he spoke to the pursuer and Mr. Deuchar around this time to find that nothing had changed so far as the pursuer's attitude was concerned.

[83] On 31^st December, Mr. Milloy wrote to the pursuer (Pro. 6/11) confirming that:

".....the status quo will remain regarding your current situation on Grampian Ward, as agreed around 2 months ago.

The situation will be reviewed, however, in a Meeting between yourself and Nigel Maguire, in his office on Friday 5 January....."

[84] Again, I accept that the terms of this letter broadly reflect what had happened since the end of the three-month period commencing at the end of June. Sometime at the end of that period, although no formal review had taken place, management had taken a decision to continue the regime. By that time, if not before, I am sure that the management wanted rid of the problem which the pursuer was presenting and had no intention of returning him to his previous duties. Just when that view was formed is difficult to say but it was probably at some point between the meeting at the end of June and the provision of the written regime to the pursuer in late July.

[85] As I indicated above, the regime was not imposed with a view to improving the pursuer's lot but as a security measure. There may also have been an element in it intended as an encouragement for him to depart. It might be wondered why management did not simply dismiss the pursuer or why the pursuer did not treat the regime as constructive dismissal. I cannot answer these issues. Neither side took those options and seemed content to engage in a war of attrition instead.

[86] By the time of the letter of 21^st December, the pursuer knew that he was to be formally demoted to grade E in conformity with the re-grading exercise. By the time of the meeting with Mr. Maguire, the new Director of Nursing Services, the pursuer knew that he would not be allowed to resume his former duties. He said Mr. Maguire asked him whether he really wanted to continue working at the State Hospital. He had replied in the affirmative but Mr. Maguire had asked him to "give it some thought." This was the final straw as far as the pursuer was concerned because he then knew he was no longer wanted.

[87] I deal with my general rejection of the evidence of the defenders' occupational health nurse Mr. Zabiega later but where I did accept his evidence in part was in relation to the pursuer's acceptance of retirement on health grounds. The pursuer had not gone to Mr. Zabiega, as some employees did, seeking early retirement. It was rather the other way round. Having persuaded the pursuer to consider retirement and consulted Dr. Anderson, Mr. Zabiega approached senior management, i.e. Mr. Manson, to ascertain whether this was a possibility. When he put the proposition to Mr. Manson, Mr. Manson was surprised that the pursuer was considering retirement since that had not been the pursuer's stance previously. Mr. Manson was described by Mr Zabiega as being taken with a sense of relief bordering on glee as he was seeing an end to what he regarded as a problem member of staff. Mr. Manson denied even having been spoken to by Mr. Zabiega about the pursuer. However, although Mr. Manson has no recollection of it, I am on the view that he probably did and that Mr. Manson's reaction would have been very close to that spoken to by Mr. Zabiega.

I am not disbelieving Mr. Manson on this. No doubt during this period he had many matters to think of other than the pursuer. I am content to proceed on the basis that Mr. Zabiega did speak to him at some point but he has no recollection of it.

EFFECTS and CAUSATION

[88] Various professionals gave evidence during the course of the pursuer's proof and most of these had previously written reports about the pursuer at various stages. Although these reports put matters in slightly different terms, I accepted what their authors wrote as being broadly accurate in so far as I quote from these reports below. I did not, however, accept all that these witnesses said in evidence.

Dr. McKnight

[89] On 19^th January 1996 the pursuer went to see Dr. McKnight who was both his general medical practitioner and advisor to the State Hospital. Dr. McKnight recorded (Pro. 7/8 p.20):

"His main problem as I see it is a combination of stress and depression. He describes his symptoms as being he cannot sleep, he cannot eat, he is drinking to excess, he feels a great deal of anger and frustration especially when he considers his job in the State Hospital

It is my view that none of this will improve and that he will remain permanently unfit for work as a Nurse in the State Hospital. I ask that he be considered for early retiral on the grounds of ill-health."

(b) Mr. Zabiega

[90] In March, the pursuer saw John Zabiega, and he referred him to the psychology department at Stobhill Hospital, Glasgow with whom the State Hospital had an arrangement for seeing their members of staff with psychological problems. Although I did not accept Mr. Zabiega's oral evidence, his letter of 26^th March (Pro. 7/8 p.5) on reflection accords in large measure to my own views on the facts. It reads:

"Mr. Fraser has worked for the State Hospital for approximately 25 years, almost all that time as a charge nurse. His family have a long involvement here and even while he was a schoolboy Donnie used to visit and play football with the Patients. He says that all he ever wanted to do with his life was to work here.

At Christmas 1994 he was implicated in facilitating, or at very least not preventing, an inappropriate relationship which had developed between a young male Psychopathic Patient in his Ward and a middle aged female member of the Hospital Educational staff.

It is my judgement that the Hospital's Managers were unable to find enough evidence to successfully move against him with disciplinary procedures, but had too many suspicions to be able to trust him again.

There were meetings between Donnie and the Hospital's Management which seems to have broken down in acrimony and personal abuse. Since then Donnie has been subject to "Retraining" and "Supervision" which he has regarding as obsessive.

His initial response to the pressure he was under was to stoically bear it and adopt a 'I won't let the bastards get to me' approach. However, by various stratagems and degrees the 'bastards' have eventually won."

With the exception of the descriptive nouns, this is a fair summary of the position. Mr. Zabiega had, by this time, already arranged for his ill-health retirement. He continued:

"As you might expect he has a range of presenting Psychological Symptoms. The most obvious is anger which amounts to rage and vitriolic hatred of his 'persecutors' which is pure. He also tends to have anginal pain often associated with his anger. Donnie had long been a fairly heavy drinker but of late this has become much more regular and enthusiastic. He is increasingly becoming hopeless and aimless and is confused and sad at the turns his life has taken recently."

This too seems broadly accurate.

[91] As distinct from the contents of his records made at the time, I was not prepared to accept the oral testimony of Mr. Zabiega as being either credible or reliable where it went beyond these contents. Mr. Zabiega said he saw the pursuer about three times after the incident in Tay Ward, twice when he simply bumped into him and once on a more formal basis about the same time as the pursuer saw Dr. McKnight. He gave a very colourful account of the pursuer being "under the cosh" and "visibly shrunk". He said that the enforcement of the regime would have caused "devastation" and "wipe out" of the pursuer and that eventually it would cause the pursuer substantial psychological harm. In his view the management might as well have put the pursuer in prison "with a skull and crossbones on his back" and "a ball and chain". His evidence, I found greatly exaggerated. At times, especially under cross examination, he did not answer questions and became rambling in his responses. Counsel for the defender asked him if he had come to Court intent on engaging in a highly dramatic performance involving the use of bile and venom. He denied this but I think that the suggestion in the question is not far from being accurate. I was not persuaded that he was trying to provide the Court with a balanced view but rather that he was intent on criticising the management if he could.

[92] It transpired that Mr. Zabiega had himself sought out the services of Stobhill Hospital because of his own condition during his employment at the State Hospital. Despite professing respect for the State Hospital, he accepted that in the past he had described it as a sick and flawed institution and that remained his view. He had had several disciplinary problems at the Hospital including a written warning for sexual harassment of his secretary. This explained his antipathy to management.

(c) Dr. Anderson

[93] The first entry in the medical records (Pro. 7/2) of depression comes as late as 19^th March 1996 when clinical depression was diagnosed by Dr. Anderson and a certificate issued (Pro. 7/7). His mental condition had, according to Dr. Anderson, worsened and was a combination of stress and depression. However, stress had not been mentioned in his notes from January 1995 until January 1996. It was in March 1996 that the pursuer was prescribed anti-depressants for the first time. Further entries for depression continued to November 1996 but these were then not repeated until January 1999. Dr. Anderson attributed his depression and distress to his demotion at and dismissal from the State Hospital. In a report dated 17^th May 1996 (Pro. 7/2 p.5) Dr. Anderson provided a useful summary:

"A diligent long serving nurse who was demoted and underwent retraining after an incident of dubious culpability at the State Hospital in December 1994. He greatly resented managerial prejudice against him and has become very angry and paranoid. He has been abusing alcohol to 'help him cope' and with increasing despondency became sufficiently clinically depressed to require treatment with Lustrol in March [1996]. He has improved to a degree but his deep anger and resentment remain to such an extent that he could not now safely be employed in the State Hospital where the patients can be difficult and dangerous and the management dictatorial. Given the type of patient Mr. Fraser would be in contact with I have to say that he is no longer psychologically well enough for the job and is likely to remain in this condition for a long time."

(d) Ian Tierney

[94] Dr. Tierney, chartered clinical psychologist, was asked to see the pursuer by his law agents and did so as early as 29^th November 1996. His first report (Pro. 6/13) referred to the formal testing he had carried out and concluded:

".....I have no doubt that the depression and the degree of hopelessness which he is presently experiencing is a direct result of the allegations made against him by his management and their subsequent humiliation of him by insisting on re-training and demoting him. He believes his future prospects, in a profession which previously gave him a great deal of satisfaction and self esteem, are poor. Above all his perception of the injustice involved in the allegations against him is seriously affecting his psychological well-being."

Dr. Tierney considered that anger, resentment and bitterness were a large component of the pursuer's condition. He thought that the events spanning the period from what he termed the unfounded suspicion onwards to the implementation of the regime might initially have had a psychological effect on the pursuer in the form of anxiety and anger. Over time that developed into clinical depression. It was the sense of humiliation before his colleagues that would have been the major factor in this. By humiliation he was referring to having to do tasks well below his qualifications in front of these colleagues. The humiliation would lead to depression, which he regarded as primarily a physical state involving low brain seratonin brought about by sustained stress. The pursuer would suffer negative ideas, hopelessness and self deprecating thoughts. Even if the pursuer had been reinstated, he would still have retained a sense of resentment. The failure to carry out the review at the end of the regime period would have created uncertainty and anxiety which would again contribute towards any depression. For Dr Tierney, there was no doubt that the depression was caused by a combination of the allegations and the humiliation, both of which were part of one process.

(e) Dr. Pramod Jauhar

[95] Dr. Jauhar, consultant psychiatrist at Parkhead Hospital, Glasgow, gave evidence for the defenders in terms of his report dated 12^th January 2000 (Pro. 7/11). He accepted that the pursuer had a correct diagnosis of a Major Depressive Disorder of Moderate Severity in 1995/1996, associated with impaired emotional functioning, behaviour change, altered cognition and social isolation. In addition, the pursuer had features suggestive of Alcohol Dependence. He felt unable to reach an opinion on causation. He thought that it was very difficult to ascribe a disorder to a specific stress in the absence of detailed information concerning the stress. The pursuer had developed a psychiatric illness, namely the depressive disorder, by the time of the general practitioner's entry in March 1996.

(f) Colonic Cancer

[96] Two specific matters were raised by the defenders with a view to suggesting that they might have been operative causes of the pursuer's psychiatric illness. These were first, a history of colo-rectal cancer in the pursuer's family. This was spoken to by Dr. Pickard in evidence. Secondly, there was excessive alcohol consumption. The pursuer did not attribute any of his depressive symptoms to any fears of cancer and I accept that as correct. This is so even although there are notes of rectal bleeding in October 1995 and January 1996. The depression was brought about one way or another by the loss of his status as a charge nurse and associated allegations.

(g) Alcohol

[97] There was reference in certain additional general medical practitioner notes (Pro. 7/10) concerning the pursuer's drinking prior to the material events and some records were suggestive of possible excessive alcohol consumption (Pro. 7/10 p.1 -19^th March 1993 and liver function results). However, Dr. Jauhar, one of whose specialities was alcohol related disorders, did not think that the recordings were particularly significant. Furthermore, the pursuer stated, and I accepted, that if he had been drinking excessively, this would have been noted at work. In short, I do not consider that the pursuer's consumption of alcohol prior to the material events was of any significance.

(h) Psychiatric Illness

[98] A further issue which required exploration was the question of just what a "psychiatric illness" was.

[99] Dr. Tierney accepted that stress did not amount to a psychiatric disorder. Dr. Anderson accepted that stress was not in itself a psychiatric illness although sometimes it could lead to depression. Ultimately I accepted Dr. Jauhar's views on psychiatric illness and other psychiatric matters mainly because he was the only psychiatrist who gave evidence. He referred to the two main diagnostic works (DSM 4 and ICB 10) which contained categories of psychiatric illnesses. He was of the view that for there to be such an illness it had to be something contained in one of the works. Although this might, I thought, in theory preclude the existence of a true new illness until such time as one of the works was up dated, I accepted his assertion as a generality. Stress is not by itself a psychiatric illness. Stress is what an individual might perceive and distress would be what might be manifest to others as a result. Equally anxiety can be, and slight degrees of it are, quite normal and it is not a psychiatric illness. Nervous shock could cause a disorder but is not a condition in itself. Depression in a general sense is also not a psychiatric illness but a depressive disorder as described in the diagnostic works is. The pursuer had developed such a disorder (infra) and this had been caused by stress over a period of time rather than by one episode.

(i) Conclusion

[100] Counsel for the pursuer asked me to accept that the pursuer's depression was caused by a combination of the way in which the pursuer was treated by the defenders, viz. the suspension from Tay Ward, the disciplinary procedures in March, the renewed accusations in May and June and the infliction upon him of the regime at the end of June. He submitted that there was no evidence that what had gone on before the imposition of the regime would have led to psychiatric illness. Whether or not he had been returned to team leadership, the pursuer would have continued to harbour resentments. However, his condition would not have progressed in the manner in which it did. It was, counsel submitted, the regime which was effectively the cause albeit against the background already narrated. The imposition of the regime should be seen as the cause in legal terms (McGhee v National Coal Board 1973 SC (HL) 37, Lord Reid at pp. 52-54; Wiltshire v Essex Area Health Authority [1988] 1 All ER 871, Lord Bridge at pp 881J-882A).

[101] Counsel for the defenders did not resist the proposition that the pursuer's reaction to the events caused him to develop a psychiatric illness, i.e. the Depressive Disorder. I am content to hold in the circumstances that the whole series of events from the incident in Tay Ward, against his background of disillusionment with management, up to and including his stopping work January 1996 resulted in the pursuer developing his depressive disorder by in and around early 1996. The imposition of the regime was a material, but I do not think necessarily the major, contributory factor. It was, on this basis, nevertheless a cause in a legal sense.

3. FORESEEABILITY

[102] There was not a great deal of evidence bearing directly upon the effects which might have been predicted by the management as a result of the procedures being adopted by them towards the pursuer. In what was an important but short passage of his evidence, Dr. Tierney asserted that, in relation to the imposition of the regime, it was very likely to lead to clinical depression especially given the pursuer's background, pride and family history. The restriction of his use of keys, a special part of his responsibilities, was a particular example. When asked if he would have expected the pursuer's nursing superiors to have been aware of the likely impact of such conditions, Dr. Tierney said that he was sure they would. This particular passage begged two questions. The first was what was meant by the pursuer's nursing superiors. I took it to refer to the ward manager and the nursing services manager (Mr. Milloy) but it could not refer to Mr. Manson who was not part of the nursing hierarchy but a general manager in charge of everything at the hospital. The second question was what was meant by "such conditions" and I took this to mean the combination of restrictions placed upon the pursuer by the regime.

[103] Dr. Tierney accepted that he did not have wide experience of the imposition of regimes. Indeed it was not evident that he had any experience of nursing or any other management. He mentioned that he was the medical adviser to the National Board for Mental Nursing but I was given no information on what that entailed. I did not accept Dr. Tierney's evidence that the pursuer's nursing superiors would have been aware that the likely impact on a nurse, even one with the pursuer's background, of the imposition of such a regime would or even might be a psychiatric illness such as clinical depression . I rejected this evidence for three separate reasons. First, I did not feel that Dr Tierney was in any way qualified to give such evidence. So far as I am aware he had no knowledge or experience of what nursing management may or may not be aware of either generally or specifically so far as the management of their staff is concerned. Secondly, I thought it inherently improbable that such management would have in mind that such measures could cause such a psychiatric illness as distinct from normal emotional reactions such as resentment or even hatred. Thirdly, the passage of his evidence to which I have referred was a very short and general one. The answer relied upon, which was in response to a very general question, consisted of the words "Oh I'm sure". I am not convinced that Dr. Tierney had really thought out the implications of what he was saying in this particular passage. I formed the impression that it was nothing more than a wide generalisation with little factual base.

[104] It was put to Mr. Milloy that the imposition of the regime would result in humiliation. He disagreed on the basis that such a regime was an accepted and standard practice. It meant that the employee had less onerous work and a less stressful position. It was also safer for the pursuer, the patients and the public. As mentioned above, Mr. Milloy noticed that the pursuer was frustrated and unhappy but he did not detect any signs of mental disturbance or of clinical depression. Mr. Manson said that he was never alerted to the possibility that the pursuer was suffering even from stress. I accepted both Mr. Milloy and Mr. Manson in this area.

[105] Managers often have to take decisions which will, and will be anticipated as having, an adverse effect on employees in emotional terms. For example, disciplinary action in the form of demotion or dismissal may reasonably be predicted to result in a whole range of reactions including anger, resentment, depression and anxiety. These are all normal human emotions. Managers may also have in mind that steps, which they may take for good reason, may place, as a side effect, pressure on the employee to resign. Indeed, the employee may feel that the manager has that as a main purpose whether that is so or not. In certain situations, the employee may be able to claim a breach of contract and consequently constructive dismissal. In others he may not. However, it is a considerable leap to go from a position whereby a manager knows or ought to anticipate that his decisions will cause an employee emotional upset in one form or another to the stage where he knows of ought to anticipate that it will cause the employee to suffer psychiatric illness. No doubt some decisions in certain contexts might be predicted to cause such illness where, for example, an employee is asked to work in unexpected (by the employee) or extreme conditions. However, I can think of no basis for finding that the defenders' management either collectively or individually ought to have known that an effect of their actions to restrict the pursuer's work and otherwise, could be to cause psychiatric illness. In addition I find that they did not anticipate such a consequence. Although the pursuer was no doubt known to have been upset by the actions of the management, at no time prior to his stopping work did he show any signs of being likely to suffer any psychiatric harm. Indeed, the opposite appears to have been the case. He was not off work. He did not complain to the management of excessive stress. He was not seen by management to be operating under excessive stress. There was no reason to suppose that being on a restricted regime would cause him psychiatric damage even against the background narrated above.

4. LEGAL SUBMISSIONS

(a) The Pursuer

[106] Counsel for the pursuer submitted that the law was relatively straightforward. As the employers of the pursuer, the defenders were under a duty to take reasonable care to avoid exposing the pursuer to the unnecessary risk of harm. However, for such a duty to arise, there had to be a situation in which there was a foreseeable risk of some form of recognised psychiatric illness and not simply general anxiety or depression. This was because in this case there were no facts supporting the existence of a foreseeable risk of physical harm so there required to be proof of a similar risk of mental harm.

[107] Counsel for the pursuer took as his starting point the opinion of Lord Reed in Rorrison v West Lothian College, 2000 SCLR 245. He observed generally that many of the speeches in the recent cases in the House of Lords on psychiatric illness had no bearing on the present issue because they were "secondary" victim cases. This, on the other hand, was a "primary" victim case. Thus, the general statement made by Lord Ackner in Alcock v Chief Constable of South Yorkshire [1992] AC 310 (at 400) that damages for psychiatric injury were not recoverable unless induced by shock had to be seen in that context (see also Bourhill v Young 1942 SC (HL) 78. The same considerations applied to the remarks of Brennan J. in Jaensch v Coffey (1984) 155 CLR 549 (at 565). The dicta in the House of Lords stemmed from considerations of policy in the context of liability arising to secondary victims in respect of harm to primary victims (White v Chief Constable of South Yorkshire [1998] 3 WLR 1509, Lord Hoffman at 1551-1552). There was no reason to apply these policy considerations to primary victim cases.

[108] On the other hand, the law was correctly stated by Sir Thomas Bingham M.R. in the English Appeal Court stage of M. v Newham London Borough Council (X v Bedfordshire County Council) [1994] 4 All ER 602 (at 620). This was quoted with approval by the editors of Clerk & Lindsell : Torts (17^th ed.) para 7-53 (p. 271) and had not been adversely commented on in the House of Lords ([1995] 2 AC 633). That an employer was liable for foreseeable psychiatric harm caused to his employees as a result of the system of work was illustrated by: Gillespie v Commonwealth of Australia (1991) 104 ACTR 1, Miles C.J at 15; Johnstone v Bloomsbury Health Authority [1992] 1 QB 333; Petch v Customs and Excise Commissioners [1993] ICR 789; and Walker v Northumberland County Council [1995] ICR 702.

[109] The question of foreseeability of psychiatric illness was one of fact to be resolved in the circumstances of each case. It was for the Court to determine this by means of the judge putting himself in the place of the employer and deciding whether he, as a reasonable employer, would have foreseen the risk. (see McLoughlin v O'Brien [1983] 1 AC 410, Lord Bridge at 432; Ward v Scotrail Railways Ltd. 1999 SC 255). If there were a foreseeable risk then it was for the employers to address that problem and determine what could be done to minimise the risk.

[110] In this case, there were a number of different elements present. First, the regime had been deliberately imposed. Secondly, its intention had been punitive rather than for the purposes of rehabilitation. Thirdly, there had been a failure on the part of the defenders to follow their own procedures set out in the regime. This all had to be considered in the context of a stressful workplace generally. Especially standing the evidence of Dr. Tierney, the judge in the role of the informed layman or rather employer ought to conclude that a punitive regime designed to humiliate would be likely, against the background of general stress, to "tip someone over the edge" (as counsel put it). I therefore ought to find that Mr. Milloy knew or ought to have known that the imposition of the regime was likely to lead to clinical depression. If that conclusion were reached then the defenders, either personally or as vicariously liable for the actings of Mr. Manson, were liable if they failed to terminate the regime. However, counsel accepted that such liability could not arise if all that was reasonably foreseeable by the management had been grief, stress or other facets of normal emotion.

(b) The Defenders

[111 Counsel for the defenders submitted that the law was far from relatively straightforward. On the contrary it was the confused and developing area of liability for psychiatric injury where no physical harm or risk of it was present. In order to understand the law, it was necessary first to look at the general legal position, then to consider the pleadings and evidence in the case and finally to seek to apply the law to the facts.

[112] When looking at any judicial decision in this field it was necessary to see: (i) when a decision had been taken; (ii) by whom it had been taken; and (iii) what arguments had been presented to the court. The decisions themselves were not capable of being "laid out flat and pieced together to form a timeless mosaic of legal rules" (Frost v Chief Constable of South Yorkshire (sub nom. White) [1999] 2 AC 455, Lord Hoffman at 503). Rather, "the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify" (Lord Steyn at 500). The English Law Commission in its Report (No. 249) "Liability for Psychiatric Illness" (para 2.3) maintained that there were at least two preconditions to recovery: (i) the existence of a recognised psychiatric illness; and (ii) reasonable foreseeability of psychiatric illness. For completeness, counsel referred me to two cases relied on by the Commission, viz. Taylorson v Shieldness Produce Ltd. [1994] 3 PIQR 329 and Sion v Hampstead Health Authority [1994] 4 Med LR 170.

[113] Counsel's main submission was that there was no material distinction between the so called "primary" and "secondary" cases other than that the manner of the breach in the latter was through the primary victim. Cases such as Walker simply did not fit with Alcock or Frost. I was referred also in this connection to an article by an English solicitor, John Messham, entitled "A flood of claims" (1995 SJ 732) which referred to the principles in English v Wilsons & Clyde Coal Co. 1937 SC (HL) 46). The law was simply that as a generality, whether in a "primary" or a "secondary" case, a person was not liable for negligently causing reasonably foreseeable psychiatric injury to another unless that injury was induced by "nervous shock". The difference between psychiatric and physical injury was just as significant as that between economic and physical loss. In both connections, it had been said time and time again that it was not possible to treat Lord Atkin's neighbourhood aphorism in Donoghue v Stevenson 1932 SC (HL) 31 as a general legal principle.

[114] Counsel maintained that, from the point of view of common sense and the reasonable man, there was a substantial difference between the foreseeability or predictability of physical harm from a person's actions and that of psychiatric injury as distinct from normal human emotion. Put another way, counsel argued that it was difficult to accept that a layman could foresee something that only a professional could diagnose.

[115] The fact that there existed an employer-employee relationship did not matter (Frost, Lord Steyn at 497; Lord Hoffman at 511; Jaensch, Brennan J. at paras. 3, 12, 15 and 16; Robertson v Forth Road Bridge 1995 SC 364). In Gillespie the matter had proceeded on the basis of a concession or assumption (para. 57) as it had also in Walker. Johnstone was very special on its facts. However, counsel did accept that at least prior to Frost there were no cases in an employee/employer context in which a distinction had been made between physical and psychiatric harm (cf. Page v Smith [1996] AC 155).

[116] As a second submission, counsel maintained that, in any event, there was no duty arising in this case because the onset of a recognised psychiatric illness was not foreseeable and there was no basis for saying that either it was or ought to have been.

[117] Looking then at the pleadings and evidence, counsel did not dispute much of the general background of the case or the essential elements of causation. In particular he accepted that the regime was one of the material causes of the pursuer's psychiatric illness albeit that there were sundry other contributing factors. Assuming that there was a general duty to protect an employee from psychiatric harm, it was necessary to look to see what particular duty was averred. The averment was that the defenders were under a duty to terminate the regime before further damage was done to the pursuer's health. Whether such a duty existed depended on foreseeability (Petch, Dillon L.J. at 796 - 797). Evidence of the existence of stress may be a starting point for this but it is not enough. In this case the pursuer was never off work, adopted a stoic stance and made no complaint of either to management or his general medical practitioner that his work was adversely affecting his mental health. Nothing in the pursuer's evidence could form the basis for either actual knowledge of the likelihood of illness or that the management ought to have foreseen it. There was no evidence of what actually does happen generally when employees are put on regimes of the type involved here and, in particular, that it is a recognised danger that psychiatric illness might intervene. Indeed, interestingly, the pursuer had not led any psychiatric evidence at all. In summary if a duty of a general nature did exist then it had not been breached.

[118] In addition, again assuming there was a duty, that duty was only to take reasonable care and not one of insurance. Even if a risk of psychiatric illness existed from the imposition and continuation of the regime, the defenders were entitled to balance that risk with any countervailing dangers such as lack of security (Brisco v Secretary of State for Scotland 1997 SC 14; Bolton v Stone [1951] AC 850). In the present case, the defenders were in a position where they could not afford to take any chances in relation to security. They had lost their trust in the pursuer and in these circumstances were entitled to balance the risks and still decline to stop the regime even if that meant that some harm might come to the pursuer's mental health.

5. DECISION

(a) General

[119] In a case involving an employee pursuing his employers for damages as a result of something occurring to him in the course of his employment, the pursuer has for many years customarily averred the nature and extent of the duty of the defenders in the following way:

"It was their duty to take reasonable care for the safety of their employees, including the pursuer, and to avoid exposing them to unnecessary risk of injury."

This formula has stood, so far as I am aware, for an equal number of years without successful challenge. It has not normally been qualified in such a way so as to restrict the nature of the injury suffered to a physical one. I see no reason why such a qualification should now be introduced.

(b) Primary Victim Cases

[120] In looking at primary victim cases, I start, somewhat unusually, with Robertson which is a secondary victim case but one at least in the employment field. In Robertson, the pursuers were claiming damages for "nervous shock" as a result of seeing a co-employee killed when blown from the back of a pick-up truck, in which the pursuers were also travelling, over the side of the Forth road bridge. The defenders admitted that the accident had been caused by their negligence but denied liability in respect of the pursuers' claims. In the course of the argument, the defenders' counsel accepted that the relationship of employer and employee:

"created a relationship of proximity sufficient for there to be a duty not to cause the employee to sustain direct physical or psychiatric injury." (at 369-370)

This was accepting what has always, at least over the last few decades, been understood to be the position. Of course, the defenders' counsel then went on to submit successfully that the employers' duty did not extend to psychiatric injury brought about indirectly by the infliction of physical injury or death upon another, even if he were a fellow employee, but that is quite a different matter.

[121] The concession, if it can even be classed as such, made in Robertson is one which can be found either express or implicit in several of the other cases of employer and employee which were quoted. In the fascinating Australian case of Gillespie, the plaintiff was sent by the government to a diplomatic mission recently opened in Caracas. He suffered a breakdown in his mental health because of the living and working conditions in that city. These conditions involved: having to bribe customs officials, facing threats of violence from them, being subjected to abuse by public servants in the airport, personal violence in the streets and other difficulties. The claim ultimately failed on its facts. However, Miles C.J. said :

"5. There can be and was no argument about the existence of a duty of care on the part of an employer to take reasonable care for the safety and health of employees.....6. The damage of which the plaintiff complains was not a result of a particular..... "accident", nor did it relate to frank bodily injury. It is not alleged to be in the nature of "nervous shock". Nevertheless the defendant was under a duty to take reasonable and effective steps which were likely to have avoided foreseeable harm, even if the harm was purely psychological.....57. The defendant whilst accepting as it must that it was, as the employer of the plaintiff, under a duty to take reasonable care for the safety of the plaintiff, denied that there was in fact a breach of that duty."

[122] Johnstone concerned a junior doctor who sought an injunction against the defendant health authority from being required to work excessive hours despite the terms of his contract. He had become ill as a result of inadequate sleep and sought damages in that respect. No argument about psychiatric sequelae was presented. However, the case concerned exhaustion rather than a purely psychiatric or psychological condition and might well be considered more physical than psychiatric or at least involving a physical element. However, Petch did involve a claim for damages in respect of the "nervous breakdown" by a civil servant caused by pressure of work . Once more counsel conceded :

"that, as a matter of law, the defendants owed the plaintiff a duty to take reasonable care to ensure that the duties allocated to him should not damage his health. She further conceded that that duty extended to mental as well as physical health, subject to a caveat that foreseeability and causation were likely to be more difficult issues in mental injury cases such as this." (p. 795)

In Walker, a similar allegation was made, this time by a social worker in the area of child abuse. Colman J. noted that:

"There has been little authority on the extent to which an employer owes to his employees a duty not to cause them psychiatric damage by the volume or character of the work which the employees are required to perform. It is clear law that the employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonable foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the employee as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care or from the co-extensive implied term in the contract of employment" (at 710)

I respectfully agree with this. There is, in short, no reason why the general principle relative to the avoidance of the risk of injury should become restricted to physical injury. In that regard I do not find it at all surprising that successive and eminent counsel for defenders in three jurisdictions have not attempted to pursue any argument to the contrary. The absence of such an argument in those cases cannot be viewed as a strong point from which the principles accepted in these cases can be criticised. Rather it is illustrative of the general understanding of the law by members of the legal profession

[123] One case in which the argument, concerning whether psychiatric injury alone sounded in damages where the pursuer was a primary victim, was run is Page where the plaintiff had suffered recrudescence of myalgic encephalomyelitis (ME) as a result of a road traffic accident in which he had been involved but which caused no physical injury. I will analyse this case in the context of the House of Lords decisions in secondary victim cases but, suffice it to say at this stage, recovery there was permitted (see also the views of Sir Thomas Bingham M.R. in the Court of Appeal in X (minors) v Bedfordshire County Council [1995] 2 AC 633 at 663-4 albeit that he was reversed on other grounds)

(c) Secondary Victim Cases

[124] The argument against recovery for psychiatric injury generally seems to have stemmed from cases involving secondary victims and is developed by extracting isolated dicta from them. However, I do not regard these cases as having any material bearing on the current issue. They are all dealing with a quite different subject, namely the extent to which the law permits recovery for psychiatric injury to persons as a result of seeing, hearing or learning about the death of or injury to others. In Bourhill, the first of these cases, a claim from a bystander in the vicinity of a road traffic accident in respect of "nervous shock" failed. It did so at least partly because of the absence of foreseeability on the part of the defender who caused the accident. The pursuer had been some distance from the accident and did not see it. However, it is perhaps instructive to note that Lord Macmillan observed (at 87):

"It is no longer necessary to consider whether the infliction of what is called mental shock may constitute an actionable wrong. The crude view that the law should take cognisance only of physical injury resulting from actual impact has been discarded, and it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact. The distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer's system. And a mental shock may have consequences more serious than those resulting from physical impact. But in the case of mental shock there are elements of greater subtlety than in the case of an ordinary physical injury, and these elements may give rise to debate as to the precise scope of legal liability."

The next House of Lords case was McLoughlin which might be seen as a variant on Bourhill concerning recovery of damages for psychiatric injury as a result of seeing the victims of a road traffic accident not at the scene but in hospital shortly after the event. However, a major difference was that the plaintiff was the mother of the children who either died or were injured in the accident and the wife of the adult who was also injured in it. It was a very sympathetic case and the plaintiff recovered. The reason for the recovery was first the foreseeability of the harm to a near relative and (per Lords Wilberforce, Edmund-Davis and Russell) there were no policy reasons for excluding the claim or (per Lords Scarman and Bridge) no policy considerations ought to interfere with a straightforward foreseeability issue. Again, I do not see that the case has any direct bearing on the present one.

[125] Jaensch followed McLouglin and is again a secondary victim case. Alcock raised similar considerations to McLoughlin in the context of the injuries to the spectators of a football match in the Hillsborough stadium. It is again a "secondary victim" case and their Lordships regarded the claims there as attempting to extend the class of cases for which recovery of damages could be achieved. Having alluded to Lord Macmillan's dicta (supra), Lord Keith of Kinkel said (p. 396) :

"In the present type of case it is a secondary sort of injury brought about by the infliction of physical injury, or the risk of physical injury, upon another person. That can effect those closely connected with that person in various ways. One way is by subjecting a close relative to the stress and strain of caring for the injured person over a prolonged period, but psychiatric illness due to such stress and strain has not so far been treated as founding a claim in damages. So I am of the opinion that in addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty."

[126] These remarks are plainly made in the context of a secondary victim situation and should not be taken out of that context. Similarly Lord Ackner said (p. 400):

"(1) 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, such as by the experience of having to cope with the deprivation consequent upon the death of a loved one, attracts no damages."

The example given in this passage makes it equally clear that his remarks are confined to secondary victim cases as are the examples which he immediately thereafter quotes from Brennan J. in Jaensch. Similar considerations apply to his general statement (at 401) that:

"(3) Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages."

That Lord Ackner was talking solely in the context of secondary victims is most clearly illustrated by his subsequent stance with the majority in Page.

Lord Oliver perhaps reflected Lord Macmillan's sentiments where he stated (at 411):

"There is, to begin with, nothing unusual or peculiar in the recognition by the law that compensatable injury may be caused just as much by a direct assault upon the mind or the nervous system as by direct physical contact with the body. This is no more than the natural and inevitable result of the growing appreciation by modern medical science of recognisable causal connections between shock to the nervous system and physical or psychiatric illness. Cases for which damages are claimed for directly inflicted injuries of this nature may present greater difficulties of proof but they are not, in their essential elements, any different from cases where the damages claimed arise from direct physical injury and they present no very difficult problems of analysis where the plaintiff has himself been directly involved in the accident from which the injury is said to arise. In such a case he can properly be said to be the primary victim of the defendant's negligence and the fact that the injury he sustains is inflicted through the medium of an assault on the nerves or senses does not serve to differentiate the case, except possibly in the degree of evidentiary difficulty, from a case of direct physical injury."

I respectfully agree and in this case the pursuer is such a primary victim (see also Lord Jauncey on direct participation at 420). Lord Oliver also thought that the propositions being advanced by the plaintiffs in Alcock amounted to an attempt to extend or expand the categories of action in which damages could be claimed (at 417). That is no doubt correct. In this case, however, the defenders' submission uses cases such as Alcock to restrict these categories.

[127] The distinction between the primary and secondary victim cases is perhaps most sharply focused by the House of Lords in Page. That was a primary victim case. In delivering the main speech of the majority, Lord Lloyd of Berwick said of the secondary victim cases (at 184):

"In all these cases the plaintiff was the secondary victim of the defender's negligence. He or she was in the position as a spectator or bystander. In the present case by contrast, the plaintiff was a participant. He was himself directly involved in the accident, and well within the range of foreseeable physical injury. He was the primary victim. This is thus the first occasion on which your Lordships have to decide whether, in such a case, the foreseeability of physical injury is enough to enable the plaintiff to recover damages for nervous shock.

The factual distinction between primary and secondary victims of an accident is obvious and of long standing."

Lord Lloyd emphasised that the defendant's position in Page would have amounted to the law stepping backwards (at 198) and I consider that this too would be the position in the present case were I to uphold the defenders' primary submission.

[128] Finally, there is Frost which has to be analysed in close connection with Alcock, arising as it did out of the same incident but this time with the police as the plaintiffs suing the Chief Constable as, in practical terms, their employer. At first instance, Waller J. (as quoted from Lord Goff of Chieveley at 466);

"rejected the argument that the plaintiffs could recover damages as primary victims simply on the basis that the chief constable was in breach of the duty of care owed by him to the police officers which was analagous to that owed by an employer to his employees. He recognised that there were cases in which an employee could recover damages from his employer in respect of psychiatric injury caused by breach of the latter's duty of care. But in his view the position of a chief constable was quite different from that of an ordinary employer. It could not be said to be a chief constable's duty not to expose a police officer to injury by nervous shock.....the nature of [the plaintiffs'] relationship with the chief constable did not give them an advantage over bystanders whose presence was clearly foreseeable.....

.....all the plaintiffs' claims must fail. None of them could establish that he was a primary victim simply by reference to the relationship between himself and the chief constable."

It was this rejection of their claim as primary victims that disposed of the case at first instance and that was the reasoning behind the restoration of that disposal in the House of Lords (see Lord Steyn at 500; and Lord Hoffman at 506 regarding Walker). Since the pursuer in the present case is a primary victim, different considerations must apply.

(d) Foreseeability

[129] It is on this aspect of the case that the pursuer's case fails. It is not disputed that the duty is only to take reasonable care to prevent psychiatric harm. It is not to protect an employee from unpleasant emotions such as grief, anger and resentment or normal human conditions such as anxiety or stress. These do not involve any form of "injury" at all. No doubt also it may be difficult for a pursuer in a given case to prove the necessary foreseeability of "injury" (i.e. psychiatric harm) in cases where no physical injury or threat of it is present. That, however, is a matter of proof and not relevancy. I should add in this connection that I do not think that there is any merit in the argument that one cannot place a duty on someone to prevent a condition which can only be diagnosed by an expert. The same could be said of many physical conditions also.

[130] On the question of how to gauge foreseeability, it useful first to quote Lord Bridge of Harwich in McLoughlin:

"Given the fact of the plaintiff's psychiatric illness caused by the defenders' negligence.....was the chain of causation from the one event to the other, considered ex post facto in the light of all that has happened "reasonably foreseeable" by the "reasonable man" ? A moment's thought will show that the answer to that question depends on what knowledge is to be attributed to the hypothetical reasonable man of the operation of cause and effect in psychiatric medicine. There are at least two theoretically possible approaches. The first is that the judge should receive the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect, and apply to that the appropriate legal test of reasonable foreseeability as the criterion of the defendants' duty of care. The second is that the judge, relying on his own opinion of the operation of cause and effect in psychiatric medicine, as fairly representative of that of the educated layman, should treat himself as the reasonable man and form his own view from the primary facts as to whether the proven chain of cause and effect was reasonably foreseeable."

Having thought the former approach attractive yet realising that it did not find favour in the authorities, he continued:

"It would seem that the consensus of informed judicial opinion is probably the best yardstick available to determine whether, in any given circumstances, the emotional trauma.....was a foreseeable cause in law, as well as the actual cause in fact, of the plaintiff's psychiatric.....illness."

[131] In Page, the issue between the majority (Lords Ackner, Browne-Wilkinson and Lloyd) and the minority (Lords Keith and Jauncey) came to be one of whether foreseeability of physical harm was enough even when psychiatric injury was not. The majority held that it was. Lord Lloyd said (at 190) :

"The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so then he comes under a duty of care to that plaintiff.....In the case of a secondary victim, the question will usually turn on whether the foreseeable injury is psychiatric.....In the case of a primary victim the question will almost always turn on whether the foreseeable injury is physical. But it is the same test in both cases, with different applications. There is no justification for regarding physical and psychiatric injury as different "kinds" of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both....."

He summarised the matter also (at 197) :

"1. In cases involving nervous shock, it is essential to distinguish between the primary and secondary victims. 2. In claims by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants. Thus, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. These control mechanisms have no place where the plaintiff is the primary victim. 3. In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all. Hindsight, however, has no part to play where the plaintiff is the primary victim. 4. Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physical and psychiatric injury as different "kinds of damage". 5. A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him."

[132] In their dissenting speeches Lords Keith and Jauncey of Tulliechettle considered that liability could only attach to a defendant if he ought to have foreseen that psychiatric illness might be caused to a person of normal fortitude, unless he knew of any particular susceptibility on the part of the plaintiff (Lord Keith at 169, Lord Jauncey at 178-179). I do not consider that this poses any problem in the present case. Whether the defenders are to be taken as looking at the pursuer as a person of normal fortitude, as a person with susceptibility because of the history of events prior to the regime or otherwise, I still hold that nothing that the defenders' management did was or ought to have been perceived by them as a potential cause of psychiatric illness. On that basis, the pursuer's case must fail.

[133] I should add that I did not understand either party to ask the Court to address the question of whether the defenders' actings could ever be a breach of the obligations owed by employers to employees generally. By this, I mean the obligations of care set out by Lord Wright in English (at 60). These are "the provision of a competent staff of men, adequate material , and a proper system and effective supervision". Exposing an employee to the risk of psychiatric illness may stem from an improper (i.e. unsafe) system of work. However, that was not really what occurred here. Rather, the pursuer was subject to what might be described broadly at this stage as disciplinary measures. The proposition that an employer owes a duty to take reasonable care not to make disciplinary decisions which might cause an employee harm is a wide one and I must reserve any opinion on it. I would not on the other hand have been inclined to sustain the defenders' rather different submission that as a matter of balancing their duties to the pursuer and others, they would be entitled to expose the pursuer to the risk of injury. Although that may be a defence in other cases, had I held that the imposition of the regime exposed the pursuer to a foreseeable risk of harm then I would also have found that there were several alternative means of dealing with the pursuer which would have reduced that risk and not involved any form of increased risk elsewhere in the defenders' operation.

B. QUANTUM

1. Solatium

[134] The pursuer suffered from a depressive disorder of moderate severity from some time in early 1996. I have already recorded that clinical depression was diagnosed in March 1996 and there were further entries up until November 1996. By letter dated 25^th April 1996 (Pro. 7/8 p.73) the defenders determined that the pursuer's health was such that they required to terminate his employment as from 30^th June 1996. His depression was such that he had even contemplated suicide. The pursuer thought that there was only one such occasion but his wife described two. The relationship with his wife became strained. They separated on two occasions. One day his wife found him in a tearful state in a shed at the bottom of their garden having been absent from home for six days. The pursuer's wife said it also affected their daughter Laura, aged fourteen at the time, who started to get into bad company.

[135] The pursuer had been referred to Dr. Ralston, consultant clinical psychologist at Stobhill Hospital, and seen for two assessment appointments on 19^th and 26^th February 1996. A five session program was agreed but the pursuer only attended one of these sessions (Pro 7/1 p.6). He did not feel comfortable with them. He did not enjoy them.

[136] The pursuer's condition was and is "eminently treatable". At the time of the proof, he thought his health was improving. His wife also thought that after some three of four static years, he had become more positive over the last year. This view was shared by Dr. Tierney who thought that were he to be vindicated in this action (i.e. win) then he would regain much of his self esteem.

[137] On the basis that the pursuer has suffered from clinical depression of a moderate degree of severity over the past four years or so, counsel suggested £12,000 was appropriate for solatium with £10,000 attributable to the past. This was not challenged by counsel for the defenders and seems reasonable. On this basis interest on past solatium at half the judicial rate is about £2,000.

2. Loss of Earnings

[138] The pursuer has not worked since his retirement. At the time of his retirement, in terms of the joint minute, no. 22 of process, he was earning £18,200 net. That salary would have been conserved at that figure until 13^th January 2001. But for his retirement, he would have continued working until he was aged 55, when he would have retired although he might then have taken some part time employment. After 13^th January 2001 the pursuer would have reverted to a grade E salary which was agreed at £26,000 gross.

[139] An entry in the medical records (Pro 7/2 p. 3) dated 5^th March 1999 noted his intention to return to work perhaps as a driver or the like. He had not been actively looking for a job but, at the time of the proof, thought that he might soon be able to do so as he was feeling more positive. He did not think that he could ever return to nursing because of the danger, as he perceived it, of making a mistake which might be life threatening to others. His wife agreed with this but also thought he could become a driver or do some form of manual work. Dr. Anderson thought that his capacity to work at a higher level might depend on the resolution of the Court case but agreed that he could do manual work, driving or any type of work not requiring substantial mental application. This was broadly Dr. Tierney's view also and he thought that success in the action would play a major part in whether the pursuer returned to work (Pro. 6/14 p.4).

[140] David McNaught, an employment consultant, pointed out that psychiatric nursing was a specialised field and the nurses, who were predominantly male, did not have general experience in the medical field. Most of the jobs were at Carstairs. He did not consider it likely that the pursuer would return to nursing. I agree with that view. Mr. McNaught's detailed report (Pro. 6/17) outlined the difficulties facing the pursuer in regaining employment namely his psychiatric history, the existing interruption in his employment record, a litigation against his former employers, lack of transferable skills and his age. He thought that the pursuer was unlikely to find work in less than six months. He would need to undergo a three to six month retraining program as well. If he then found employment, which Mr. McNaught thought he would, then he would be likely to earn about £12,368 gross per annum (Pro. 6/17 p26) and the net of this was agreed in the joint minute to be £10,750. Again, the reasoning and figures were not challenged by the defenders and did seem fairly well reasoned and balanced.

[141] On this basis, loss of earnings to date was submitted to be four years at £18,200 (i.e. £72,800) to which interest at half the judicial rate ought to be added to produce a further £11,648.

[142] In relation to the future, there was first about £18,100 to take into account the reduction to grade E status coming in as at January 2001. Thereafter the salary difference was broadly £18,000 (i.e. the grade E amount) less the potential earnings of £10,750, i.e. £7,250 to which a multiplier required to be applied.

[143] The multiplier is ascertained by looking at Ogden Table 15 "Multipliers for loss of earnings to pension age 60 (males)" and, since the pursuer would be aged 50 at the relevant time, taking the figure for a 55 year old using the 3% column, This produces 4.57. Thereafter adjustments require to be made using Table B at paragraph 34 of the Ogden Explanatory Notes, "Loss of Earnings to Pension Age 60 (Males)" and taking 0.93 being the medium figure for age 55. Then, using paragraph 40, the figure of 0.93 needs to be reduced by 0.05 to take into account residence in Scotland. This produces a figure of 0.88 which reduces the multiplier from 4.57 to 4.02. Next, there is paragraph 16 which provides for an increase of 1/2 % for every year under 60 which, in this case, produces a calculation of 4.02 times 1.025. The resultant figure of 4.12 falls to be reduced slightly by 0.9709 to take into account the gap between today's date and that when the differential begins to fall due. The final multiplier is a neat "4" to produce £29,000 to be added to the £18,100 for a total future loss of £47,100.

Pension Loss

[144] The pursuer obtained a pension of 37.55/80ths of his final salary upon retiring on ill health grounds. This, the pursuer said, was about £13,400 gross per annum.

[145] Findlay Marshall, an actuary, produced a report dated 18^th May 2000 (Pro. 6/18) which placed a net value of £50,220 on the pursuer's loss of pension rights. This was based on certain assumptions notably a predicted rate of return, relative to inflation, which the pursuer might secure. This was taken to be 11/2 % above inflation given the 2% current yields on government linked stock and 5% on fixed interest stocks. The report assumed that the pensions under the pursuer's scheme would increase annually by 3% to reflect inflation but that any salary would increase at just over 4%. It also assumed, wrongly, that the pursuer's retirement age was 60. This error resulted in the production of further figures based on the same assumptions to age 55 (Pro. 6/20). Certain figures were taken from documents concerning the pursuer's salary (Pro. 7/4 and 7/5) and his actual pension (Pro. 6/21 and 6/26). Mr. Marshall gave a considerable amount of evidence at various different stages of the case, returning on occasion after he had obtained further information from the Scottish Public Pensions Agency, which dealt with the pursuer's pension. That pension was under a statutory scheme. After some to-ing and fro-ing of this type, he produced a further report 6/30 which altered his figures to take into account a 3 % net rate of return.

[146] I do not rehearse Mr. Marshall's opinion evidence in detail because, ultimately, it was not relied upon by counsel for the pursuer. The figures relied on in submissions by counsel for the pursuer did not depend on Mr. Marshall's opinion evidence at all. They did stem from figures which Mr. Marshall had obtained by telephone and other means from the Pensions Agency but, beyond that, the eventual calculations were carried out using the known pension figures and applying various elements of the Ogden Tables and Notes.

[147] Using the gross figure of £26,625, being the pursuer's protected salary which he would have been earning now but for his retirement, and applying the fraction of the maximum 40 over the pension scheme figure of 80, a potential pension of £13,312.50 is achieved. He will in fact only obtain 37.55 over 40 because of his early retirement in terms of the documentation from the National Health Service Superannuation Scheme (Pro. 6/27). This produces only £12,812, there thus being a loss of £500 per annum. Using the Ogden Tables again a multiplier for someone of the pursuer's current age would be 19.45 but this has to be discounted for acceleration of payment. The same multiplier of 4.57 (used above for the loss of earnings to age 55) can be taken as a starting point enhanced by the same 1.025 to produce 4.68. That can be subtracted from the full multiplier to give 14.77 as the appropriate multiplier from the age of 55. That has to be discounted for the accelerated payment and Table 21 is used for that to give a factor of 0.8375 for six years early payment to give a final multiplier of 12.37 to be applied to the £500 producing a total net loss of £6,185.

[148] However, in view of the decision in Cantwell v Criminal Injuries Compensation Board, First Division, 9^th February 2000, unreported, the pension actually to be received should not be deducted at all given the terms of section 10 of the Administration of Justice Act 1982. On this basis, starting at the gross pension figure of £13,312.50, this would be about £10,612 to which the multiplier of 12.37 could be applied to produce £131,270. The loss of the potential lump sum of 120 over 80 times the gross salary figure of £26,625 would also have to be taken into account to produce an extra £39,937.50. Total pension loss would be £171,207.50. Counsel for the defenders did not disagree with that figure on the basis that the reasoning in Cantwell were applied. He did not suggest that Cantwell could be distinguished.

[149] Total damages would have been as follows :

Head of Damage	Principal	Interest	Total
Past Solatium	10,000	2000	12,000.00
Future Solatium	2,000		2,000.00
Past Loss of Earnings	72,800	11,648	84,448.00
Future Loss of Earnings	47,100		47,100.00
Loss of Pension Rights	171,207.50		171,207.50
TOTAL			0

The sum is slightly over that sued for and counsel for the pursuer sought to amend that sum accordingly. That was not opposed by the defenders and I will therefore allow that amendment.

C. EXPERTS

[150] Counsel for the pursuer moved me to sanction three witnesses as experts, namely: Dr. Tierney; Mr. McNaught, and Mr. Marshall. So far as the application related to Dr. Tierney, it was not opposed. It was opposed in relation to the other two. However, I was of the view that it was necessary for Mr. McNaught to be employed to make investigations in order to qualify him to give evidence at the proof in terms of Rule of Court 42.13. The Court required to be informed of the type of work which the pursuer could now obtain having regard to the circumstances, when that work could reasonably be obtained and the likely salary available to him. He required to investigate these matters and produced a report which was ultimately not challenged. On the other hand, I do not consider that it was necessary to employ Mr. Marshall to make such investigations. Apart from the published statutory material, the figures concerning the pursuer's salary and pensions were available from the defenders and/or the Pensions Agency. I could see no reason why they could not have been obtained by the pursuer's law agents. Thereafter, the appropriate calculations could have been, and ultimately were, done by his legal advisers without recourse to any actuarial opinion but, rather, by using the Ogden Tables and Notes. In these circumstances, I will refuse to sanction his employment as an expert.

[151] I will therefore : (1) allow the record to be amended by the pursuer: (a) in the conclusion by deleting "THREE HUNDRED THOUSAND POUNDS (£300,000)" and substituting therefor "THREE HUNDRED AND SIXTEEN THOUSAND SEVEN HUNDRED AND FIFTY FIVE POUNDS.5O (£316,755.50)"; and (b) in the second article of condescendence by inserting at page 12 of the closed record after "fortnightly reports." the following:

"In addition, said Deuchar advised the defenders' management of said opinion (that the pursuer should not be expected to work under such stress) at meetings held within said three month period).";

(2) sanction the employment of Dr. Tierney and Mr. McNaught in terms of Rule of Court 42.13; (3) sustain the second and third pleas-in-law for the defenders; (4) repel the first plea-in-law for the defenders and the first and third pleas-in-law for the pursuer; and (5) grant decree of absolvitor.