Scottish Court of Session Decisions

Stevenson v. East Dunbartonshire Council [2002] ScotCS 306 (29 November 2002)

OUTER HOUSE, COURT OF SESSION
A2051/01	OPINION OF LORD BONOMY in the cause JOHN STEVENSON Pursuer; against EAST DUNBARTONSHIRE COUNCIL Defenders:   ________________

 

 

Pursuer: Allardice; Thompsons

Defenders: Smith, Q.C.; Simpson & Marwick, W.S.

29 November 2002

1. The pursuer claims damages for psychiatric illness which he attributes to the excessive demands made upon him by his employers, the defenders. He was resident hall keeper at Kilmardinny House, Bearsden. He supports his claim by averments about being required to work excessive hours continuously, many of the hours without remuneration, and about the additional demands made upon him by the public because he lived at the hall premises. The issue at procedure roll was whether the pursuer had adequate averments of the basis on which it could be said to be foreseeable by the defenders that he would suffer injury or illness.
2. The pursuer avers that the excessive hours, absence of remuneration and demands of the public were brought to the attention of the defenders. There are further averments that the defenders were in any event well aware of these features of the pursuer's employment. There are also averments that the pursuer developed a psychiatric illness, in the form of a major depressive disorder, as the result of the strain and pressure of his working conditions. The pursuer's case that the defenders ought to have foreseen the risk of injury or illness depends upon averments about a series of events: a letter of 1 November 1994 from the pursuer's general practitioner to the defenders; a meeting between the pursuer and the defenders' personnel officer, immediately after the letter was received, at which the pursuer reiterated that he was overworked and inadequately paid and the personnel officer undertook to "do something about his situation"; a meeting thereafter between his wife and the personnel officer, at which the pursuer's problems at work and the effect upon his health were discussed and the pursuer's wife was advised that "the pursuer's hours of work would be reduced"; and a further letter from the general practitioner to the defenders dated 12 February 1996.
3. The letter of 1 November 1994 was in these terms:

"I write to confirm that my patient has suffered severe mental and physical stress due to the excessive hours he has been working.

As you know, Mr Stevenson lives 'on site' and very rarely gets any relief at all from his work. He and his wife now live in separate houses.

On 3 June 1994 I saw my patient and diagnosed stress. I advised complete rest. In fact I suggested that he remain off work for a month and I was willing to review the situation then. He felt after three weeks that he had to return to work due to 'pressure'.

While my patient was undergoing complete rest, he tells me that the door was constantly requiring to be answered. People were perhaps not unnaturally seeking his advice about various aspects of the running of Kilmardinny House.

I have great sympathy for this patient.

I would hope that you will be able to alleviate the situation for him."

The letter of 12 February 1996 stated inter alia:

"My patient has been severely stressed over the past couple of years. His job situation has been a very major cause of this stress ... his condition has persisted even since my letter of 1 November 1994 and he has required anti depressant medication of a fairly strong nature. I have great sympathy for Mr Stevenson who is (sic.) always been a very hard working gentleman. It would however seem that the job situation has been extremely detrimental to his health."

4. It is on the basis of these letters and the meetings that the pursuer encapsulates this aspect of his case at 10B as follows:

"Had said district been acting as reasonable and responsible employers they would by the receipt of said letter of November 1994, and in any event by receipt of the letter of 12 February 1996 at the latest, have realised that the pursuer's working conditions were such that a continuation of them exposed the pursuer to a material risk of suffering injury of the type and nature that he did in fact suffer."

His principal case is that steps should have been taken to reduce his hours of work, to prevent him from working unpaid overtime, and to reduce his contact with the public when he was not on duty. It is suggested that that could have been done by altering the letting arrangements for Kilmardinny House and engaging a relief caretaker.

5. At one point in his submission for the pursuer, Mr Allardice relied upon Page v Smith [1996] 1 AC 155, [1995] 2 A.L.L. E.R. 236, and submitted foreseeability of any form of injury, physical or psychiatric, was sufficient. He added that, even if the pursuer's averments of foreseeability of psychiatric injury were insufficient, there was a clear averment on the basis of which it was foreseeable that the pursuer would suffer some harm, particularly physical harm, were he to continue to be exposed to unaltered working conditions. He pointed to the opening words of the letter of 1 November 1994, where the pursuer's general practitioner had said: "... my patient has suffered severe mental and physical stress due to the excessive hours he has been working." Counsel submitted that, whatever might be said of the reference to "mental stress", the reference to "physical stress" was plainly a reference to physical harm. The problems with that submission are that the expression "physical stress" does not denote a particular form of physical harm and that the letter does not begin to suggest how the pursuer might be exposed to risk of physical injury on account of the factors relied upon in his working conditions. The principle in Page v Smith does not, therefore, provide a solution for the pursuer. His case depends upon there being relevant averments of the foreseeability of psychiatric injury or illness.
6. With considerable hesitation I have come to the view that it cannot be said on the strength of the pleadings alone that there is no prospect of the pursuer succeeding in establishing that psychiatric illness was a foreseeable consequence of the working conditions imposed by the defenders upon the pursuer. In a careful analysis of the terms of the two letters from the pursuer's general practitioner, Mr Smith Q.C. for the defenders, demonstrated that, viewed in isolation, they did not give clear notice of the risk of psychiatric injury. The earlier letter was written months after the period of absence referred to in the letter, and did not indicate a continuing state that could conceivably lead to psychiatric illness. The diagnosis at the time of the pursuer's absence was of "stress", which is not itself a psychiatric illness but may precede the onset of one. The later letter mentioned continuing stress linked to his job situation, and went on to state that he had required anti depressant medication of a fairly strong nature. However, that letter was written when the pursuer went off sick in February 1996, after which he returned to work for a period of no more than a month before going off sick finally in November 1996. If it was only at that stage that the defenders had adequate notice of the risk that the pursuer's working conditions posed, then the pursuer's claim must be limited to an exacerbation of an already existing psychiatric illness. A case based on the exacerbation of illness required a clear indication of the gravity of the illness at the time the letter was written and the extent to which the defender's conduct thereafter aggravated it. The pursuer's averments did not begin to give adequate notice of that case.
7. That analysis leaves out of account other crucial elements of the pursuer's case. The two meetings referred to took place following upon the letter of November 1994, and in the context of concern, expressed in correspondence to the defenders and in their internal correspondence that the working demands upon the caretaker at Kilmardinny House were exceptional (6E-7D). The pursuer maintains (9C) that in 1994 the personnel officer undertook to do something about his situation. At around the same time his wife met with the personnel officer "to discuss the pursuer's problems at work and the effect upon his health". She was advised that the pursuer's hours of work would be reduced. These events took place against a background of the pursuer's regularly raising the excessive demands of his job with his employers before suffering any condition which required medical certification (6B-E).
8. A number of cases at first instance demonstrate just how difficult it is for any pursuer to establish the foreseeability of psychiatric illness - see Walker v Northumberland C. C. [1995] 1 All ER 737, Fraser v State Hospitals Board for Scotland 2001 S.L.T. 1051 and Cross v Highlands and Islands Enterprise 2001 S.L.T. 1060. Then earlier this year in Hatton v Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1 the Court of Appeal made a number of general observations about the circumstances in which the risk of psychiatric illness might be foreseeable. The following points were made:

"[25] ... the answer to the foreseeability question will therefore depend upon the inter-relationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him ... a number of factors are likely to be relevant.

[26] These include the nature and extent of the work being done by the employee ... it will be easier to be conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable. ...

[27] More important are the signs from the employee himself. Here again, it is important to distinguish between signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually lead to damage to health. Walker's case is an obvious illustration: Mr Walker was a highly conscientious and seriously overworked manager of a social work area office with a heavy and emotionally demanding case load of child abuse cases. Yet although he complained and asked for help and for extra leave, the judge held that his first mental breakdown was not foreseeable. There was, however, liability when he returned to work with a promise of extra help which did not materialise and experienced a second breakdown only a few months later. If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of a breakdown in mental and physical health, then the employer will have to think what can be done about it.

[28] Harm to health may sometimes be foreseeable without such an express warning. Factors to take into account would be frequent or prolonged absences from work which are uncharacteristic for the person concerned; these could be for physical or psychological complaints; but there must also be good reason to think that the underlying cause is occupational stress rather than other factors; this could arise from the nature of the employee's work or from complaints made about it by the employee or from warnings given by the employee or others around him."

9. Set against that general summary of relevant factors, it cannot in my opinion be said that the letter of 1 November 1994, read in the context of the meetings which took place in November 1994, the indication that the pursuer's hours of work would be reduced, and the averments about the defenders' knowledge over a number of years of the pursuer's exceptionally demanding working conditions, could not, when explored in evidence, provide a basis for saying that the defenders ought to have foreseen the risk of the pursuer contracting a psychiatric illness. The letter of 12 February 1996, read against that background, could reinforce that case. It is also possible that the letter of 12 February 1996, when read against the whole background, could itself provide the trigger for a case based on the exacerbation of an existing psychiatric illness. The averments in support of that particular case are exiguous, but give sufficient notice of the case to be met.
10. I shall therefore appoint a proof before answer. I was invited by counsel for the defenders to repel the first plea-in-law for the defenders. I shall do so. The two pleas for the pursuer and the record to fifth pleas for the defenders remain to be dealt with after proof.