Scottish Court of Session Decisions

In this action the pursuer sues for £30,000 in respect of a claimed psychiatric disorder averred as an acute major depressive episode. He suffered no loss of earnings and appears to have been absent from work for a very brief period. As Lord Reed found in a similar case, Rorrison v West Lothian College, it is difficult to summarise the pursuer's case. It should be said at the outset that counsel who appeared at the procedure roll was not responsible for the way in which the pursuer's pleadings have been compiled. Nonetheless, she must accept responsibility for them. They are confused, confusing and in most respects unnecessarily prolix. As an example, in the course of the seven and a half pages of the Closed Record which contain condescendence 2, only, it is said at 9A-B that the pleadings in a case in which the Record closed one day later than the present action, Fraioli v The Lord Advocate (who in that case was said to represent the same Department of Environment, Transport and the Regions as in the present case in which the Advocate General is called as defender) were incorporated and held as repeated in this case. That case has a Closed Record of 33 pages and was only produced at the debate. In Fraioli, averments were made which have been copied at page 12 between letters C and D at the end of condescendence 3 which appear to be related to the facts in Fraioli's case but have nothing to do with the issues or pleadings in this present case. Further, those averments relate to the findings in a report made in June 1997 upon Mr Fraioli's complaint months after this pursuer had been transferred. Nonetheless the pursuer makes calls upon the defender at 12D-E about alleged failures to act in some fashion after July 1997. Again at 17D the pursuer refers to investigations into his complaint - of which there were none. The words of identical averments are found in the Fraioli case 25A-B. As a result there is a wholly confused and at times impenetrable series of averments far removed from the articulate numbered condescendences which are the desired norm in pleading. No Lord Ordinary, let alone an opponent should have to struggle to disentangle any relevant aspects of a case affecting the pursuer from such pleadings. The decision in Eadi Cairns v Programmed Maintenance Painting Ltd 1987 S.L.T. 777 is still appropriate and applies even taking Lord Macfadyen's gloss upon it in The Royal Bank of Scotland Ltd v Holmes 1999 S.L.T. 563 at p.570.

Counsel for the defender having indicated her bafflement about what the pursuer's case meant or amounted to went on to make a spirited and pointed attack upon the sufficiency of the averments relating to the foreseeability of the pursuer sustaining any psychiatric injury, if such were proved. She also attacked the case based upon the vicarious liability of the defender for the actings of Mr Fotheringham which as the pleadings stood at the opening of the procedure roll sought to impute vicarious liability on the defender for Mr Fotheringham allegedly acting deliberately to injure the pursuer's health.

Pursuer's counsel sought leave, and was allowed, to amend to delete the averments about Mr Fotheringham's acting deliberately. She sought to explain what the pursuer's case was about. As I noted the matter she said that it had been averred that there was a foreseeable risk that the pursuer would suffer injury "because such injury was a reasonably foreseeable likely consequence of the acts complained of to persons working in the same class of employment as the pursuer". It was conceded that there was no averment of any propensity of the pursuer to suffer any harm psychologically and accordingly it was said that the pursuer required to aver that there was a foreseeable risk of injury to any employee within the class. She said that there had been "shown in the averments circumstances that objectively would cause any employee to sustain injury". There were averments about the effects upon two other employees who were also vehicle examiners; the context was that they were all members of staff under the supervision of Mr Fotheringham. What was complained of was a course of conduct by Mr Fotheringham, the precise ingredients of which might vary and which related to his managerial style. It was enough, for the pursuer, she said, if he was able to show that the defender knew that other employees were ill with stress related conditions. The defender knew, or ought to have known, that Fotheringham's behaviour had caused damage to other employees' health and they knew of his behaviour. Mr Fotheringham, she said, was not 'on a frolic of his own', he was important in a supervisory role. The pursuer's averments indicated Mr Fotheringham's general course of behaviour from 1995 and had made, it was said, specific averments of the attitude of Mr Fotheringham towards him which caused distress and led to psychiatric injury.

Miss Shand for the defender reiterated that there were no averments showing that Fotheringham knew, or ought to have known, that he was having an adverse effect on the pursuer's health or that the pursuer was likely to suffer psychiatric illness as a result of his behaviour. The case based on vicarious liability was still irrelevant after amendment, because the pursuer had not shown that Fotheringham ought to have been aware of the effect of his behaviour on the pursuer. The suggestion that there was a "class of persons" in the context of this case was of no assistance. What was that class? There were no averments about the numbers of examiners in the depot, each employee was different and, according to the averments, two had been the subject of a different aspect of Mr Fotheringham's behaviour.

I was referred to White and others v Chief Constable of South Yorkshire 1999 2 A.C. 445 (albeit with the reference 1998 3 W.L.R. 1509) for the general policy considerations in relation to claims for psychiatric illness (about which there was no material difference in view between counsel) and also to four recent Outer House decisions: Mather v British Telecommunications, 30 May 2000; Rorrison v West Lothian College, 21 July 1999; Fraser v The State Hospital s' Board of Scotland, 11 July 2000; and Cross v Highland & Islands Council, 5 December 2000. None of these cases provided a satisfactory answer to the questions posed in the present. In the present case, the issue is a general one of stress encountered while at work as opposed to work related stress i.e. stress caused by an excessive workload. In the present case there is no question of an employer imposing an excessive workload or making unreasonable demands nor, in my view, are there averments of knowingly permitting such a thing to be imposed by their supervisors.

In the present case it is the so called managerial style or incidental conduct of Mr Fotheringham that forms the basis of the complaint. The question at this stage is whether there can be disentangled from the averments sufficient to establish knowledge that a risk to the health of the pursuer was foreseeable by the defender or Mr Fotheringham and was the result of those circumstances specified. Mindful of the dicta of the House of Lords in Jamieson v Jamieson 1952 S.C.(H.L.) 44 and in Miller v South of Scotland Electricity Board 1958 S.C.(H.L.) 20 relative to dismissing cases without a proof the pursuer's averments in this case are not sufficient nor sufficiently specific to entitle him to inquiry. When one has regard to the duties which are averred as being incumbent upon Mr Fotheringham, one finds "it was his duty to avoid making derogatory comments about the pursuer's professional abilities. It was his duty to avoid making sectarian remarks". Why? I cannot see how such generalities can be elevated into particular duties owed to the pursuer. Again "it was his duty to avoid behaving in a violent manner" but no violence directed against the pursuer is there asserted. The pursuer's averments and complaints about Mr Fotheringham's conduct directed at him do not in my view amount to such conduct as could be reasonably foreseen as causing psychiatric injury. Annoyance perhaps, disgust possibly, disagreement and frustration definitely but that is far from what is required in a case to support the sweeping, and oft repeated assertion in the course of the pleadings, of "bullying, harassment and intimidation". Whether or not Mr Cluskey's health was affected by any treatment which may have been directed at him by Mr Fotheringham does not in my view assist the pursuer in establishing a case of behaviour directed against himself. Equally Mr Fraioli's situation, if established, is not directed at the pursuer. Moreover, there are no averments about how many examiners were present at the depot and therefore no yard stick by which one could judge any assertion that the other employees in the same class as the pursuer would be likely to be affected by Mr Fortheringham's behaviour. The observations about "class of employees" might be apposite when considering a case based upon overwork but not in the situations as averred here.

I agree with counsel for the defender that there are no sufficient, relevant averments to indicate that Mr Fotheringham knew, or ought to have known, that the way he is said to have behaved towards two other members of staff would be likely to cause the pursuer stress.

The direct case pled against the defender, appears to be based upon the proposition that since it might be or might have been established that Mr Fotheringham behaved inappropriately towards Mr McCluskey, and subsequently towards Mr Fraioli, and caused them either to leave or complain, they should know or be imputed with the knowledge that there was some important matter in Mr Fotheringham's behaviour which would affect the pursuer's neutral stability. It is averred, at 19A, "in early 1996 the pursuer had complained to his line manager, Mr Harkiss, that he was being bullied by Mr Fotheringham", but there is no specification of that complaint. It is further averred that the pursuer told him on a later occasion that Mr Fotheringham had broken the fax machine but that complaint is not given any specific date let alone any indication of how that related to the pursuer. Early 1996 would not apply to conduct from and after 14 May 1996. In November 1996 the pursuer instituted a grievance procedure but it is not said about what nor whether that was instituted before or after he left the centre which occurred on 6 November 1996 as a result of the pursuer being transferred. The pursuer cannot rely on that complaint in relation to the defender's knowledge because he avers that his mental state had been affected before 6 November 1996 Further, the pursuer purports to found upon a report dated 22 July 1997 and calls on the defender to specify whether the report is accepted. There is no relevance in that passage of the pleadings to the pursuer's case against the defender directly or vicariously. As noted at the foot of page 12 of the Closed Record there is a sentence beginning "The nature and consequences of Mr Fotheringham's reaction" which has no basis in the answers lodged by the defender and is quite inexplicable in the context of this Record.

The pursuer's pleadings in this action are such as to pass beyond the bounds of more doubtful relevancy. They do not give proper notice in a comprehensible form of what his case is about. A proof is not appropriate on such pleadings as they stand. They do not give proper or fair notice of any relevant case. I shall sustain the defender's first plea-in-law and dismiss the action..