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Taplin v. Fife Council [2002] ScotCS 319 (17 December 2002)

OUTER HOUSE, COURT OF SESSION

A2517/00

OPINION OF LORD PHILIP

in the cause

ANGELA TAPLIN

Pursuer;

against

FIFE COUNCIL

Defenders:

________________

Pursuer: Bowen; Harper MacLeod

Defenders: Smart; Simpson & Marwick, W.S.

17 December 2002

In this action the pursuer seeks damages against the defenders, her employers, for psychiatric injury, in the form of recurrent depressive disorder, which she avers was caused by the stress of her work as a teacher of children with special educational needs at schools run by them. The case came before me on the procedure roll when the defenders moved for dismissal of the action on the ground that the pursuer's averments were irrelevant. The motion for dismissal was based on two principal grounds. The first was that the pursuer had failed to aver a sufficient basis in fact and law for the proposition that there was a reasonably foreseeable risk of psychiatric injury to her. The second was that the pursuer had failed to aver any causal connection between the defenders' alleged failures to fulfil the duty of care incumbent on them and the development of her psychiatric condition. In addition, the defenders advanced a separate argument in relation to certain averments in Article 2 of Condescendence relating to physical injuries sustained by the pursuer while restraining a pupil. They argued that since there were no averments of fault relating to physical injury deriving from restraint of pupils, these averments of physical injury were irrelevant and should not be admitted to probation.

The pursuer's averments concerning her working conditions and their effect on her are lengthy and difficult to summarise, and in fairness to her I have thought it appropriate to set out at length the averments which seem to me to contain the essence of her case. I have also found it helpful to divide up the single Article of Condescendence in which they are contained into paragraphs. The averments are as follows:

"COND II. From 7^th March 1995 the defenders employed the pursuer as a Senior Teacher of Special Educational Needs at Castlehill Primary School, Cupar, Fife. She had previously worked as a Senior Learning Support Teacher for the defenders at Kelty Primary School, Kelty, Fife. On 27^th June 1994 she had consulted the defenders' Assistant Director of Education on account of her stress resulting from management and staff problems at Kelty Primary School and as a result the defenders had offered her the position at Castlehill Primary School.

In 1994 she was diagnosed with hypothyroidism which is controlled with medication. The pursuer was absent from her post at Kelty Primary School from October 1994 when she was diagnosed with hypothyroidism until January 1995 during which period her condition was treated with medication and during which period she sent regular medical certificates to the defenders and received statutory sick pay. The defenders would have been aware of the pursuer's condition from said medical certificates.

The Special Needs Unit at Castlehill was originally designed and equipped for slow learners and in March 1995 consisted of 2 classes, SN1 and SN2. SN1 taught pupils from ages 5 to 10, and SN2 pupils from age 8 to 13. Pupils attended the Special Needs Unit in order to allow them to integrate with mainstream pupils. There were no sanitary or specialised rooms available for the exclusive use of special needs pupils at Castlehill. There were no aids for disabled pupils and no dedicated place to change the 7 year old incontinent pupil, who required to be changed on the floor of the classroom at least once a day thereby causing a major distraction to other pupils as well as an undesirable stench which was difficult to disperse due to poor ventilation and small windows in the classroom. There was only an inadequate sanitary bin for the disposal of soiled material.

There was no specialist gym equipment and a shortage of suitable play equipment in the Special Needs Classrooms. The gym equipment was unsuitable for Special Needs Pupils, because it was cumbersome and difficult for adults and children with co-ordination and other physical problems to use as well as being out of date. The budget for the two Special Needs Classes for 1997/98 was £270. Special Needs Pupils shared the playground with mainstream pupils so that the Special Needs Teachers such as the pursuer had to be constantly aware of the Special Needs Pupils. The pursuer was the Senior Teacher responsible for the day to day running of the Unit, as well as teaching SN1. Rosemary Chadwick was the Special Needs Teacher of SN2. The pursuer and Mrs Chadwick were assisted by 2 auxiliary staff who were not qualified in Special Needs. The pursuer had no qualified help in SN1.

The pursuer's responsibilities included planning, assessing, teaching and evaluating individual and small group programmes for a range of subjects. She also required to liaise with other agencies, such as Psychiatric Nurses, Social Workers, and Health Board Officials and to attend case meetings and to provide written reports. She had further responsibilities in the assessment of suitability of resources for pupils being considered for entry to the Special Needs Department, in the preparation of daily reports to parents, parent interviews and annual reports to parents, and the compilation of information for pupils' record of needs.

In or about June 1997 the Deputy Head of Castlehill Primary School, who was responsible for the management of the Special Needs Department and who had considerable experience and knowledge of Special Needs, retired and the management responsibility was devolved to the Head Teacher, Mr A Kilgariff. For more than a year after the retirement of the Deputy Head, Mrs Buttercase, the defenders were unable to appoint a suitable replacement for her and Mr Kilgariff took over responsibility in addition to his already busy workload. He was unable to give the Special Needs Department sufficient time and Mrs Buttercase's former responsibilities were left to the existing staff to cope with. As a result the pursuer required to take on significant extra work.

Between 1994/95 and 1997/98 the number of full-time pupils in SN1 increased from 3 to 9, and part-time pupils from 2 to 3. In SN2 over the same period full-time pupils increased from 2 to 3 and part-time from 0 to 1. In the same period there was a distinct increase in the range and severity of disabilities of pupils accepted into the Department, with pupils suffering from hearing and visual disabilities, incontinence, leukaemia, strokes, attention deficit hyperactive disorder and haemophilia. As a result the pursuer required to deal with these disabilities and adapt the Unit to cope with them. This increase resulted in higher levels of behavioural disturbance which increased the pressure on the pursuer. In addition there was an increase in the frequency and range of the pursuer's contact with professionals involved with the pupils.

At the start of the Autumn term in 1997 the pursuer and Mrs Chadwick told Mr Kilgariff about the increasing strain on the resources of the Unit. The pursuer further told Liz Shepherd, the defenders' Advisor for Special Needs in Fife, about her concerns but believes that Ms Shepherd did not tell Mr Kilgariff. Teachers in the Unit were entitled to half an hour per day as pupils non-contact time for administrative duties but due to the number of pupils and their complex needs the pursuer's non-contact time was invariably interrupted. The defenders had a Behavioural Unit at Leuchars Primary School, Fife, about seven miles from Castlehill which was well equipped with two teachers and an auxiliary. It was intended for outreach support but Castlehill did not receive any outreach support from said Unit.

Between February and March 1998 the pursuer injured her neck whilst restraining a Special Needs Pupil, Bruce Hamilton. The pursuer had received no training, or guidance from the defenders on restraining pupils and Castlehill had no written policy on restraint. The pursuer restrained pupils by putting her arms around them, and Mr Kilgariff observed her restraining Bruce Hamilton using this technique without comment. The pursuer's neck injury was exacerbated by having to deal with physical challenges involving the Special Needs Pupils and the pursuer became increasingly anxious that she would further injure her neck and back.

In the Summer term of 1998 the pursuer broke down at school because of the stress of dealing with the pupils and she spoke again with Mr Kilgariff about the need for additional resources for the Unit. Although he agreed to consider her request funding problems meant that no new resources were made available.

Swimming sessions which were held on Thursdays were particularly stressful but no extra resources were available to assist the pursuer in conducting these sessions.

On 8^th September 1998 the pursuer reported to Mr Kilgariff that a Special Needs Pupil, Robert McNaughton, had run out of the school, and requested assistance to find him. Mr Kilgariff refused any assistance and even prevented a Depute Head from assisting the pursuer. The pursuer was so distressed by the incident and the lack of support that she stopped working on that date."

The pursuer makes certain additional averments in answer to the defenders' pleadings some of which supplement the averments already quoted. I summarise them as follows.

Prior to June 1994, while the pursuer was still at Kelty, she told members of the defenders' managerial staff that she was finding it very difficult to cope. The defenders were aware that other staff members at Kelty were suffering from stress, and made it easy for staff at Kelty to move to other schools because of the special circumstances (unspecified) which existed there at the time. The pursuer was not depressed in June 1994 and remained at Kelty for another nine months. Although staff morale there was low her teaching performance was not affected.

The pursuer makes the following averments as to the duties of care incumbent on the defenders.

"It was their duty to take reasonable care for the health and safety of their employees including the pursuer and refrain from exposing her to risk of injury, and in particular to ensure that the size of class and behaviour of pupils did not constitute a risk to the health and safety of the pursuer. It was their duty to provide their employees such as the pursuer with a safe system of work. The defenders were under a duty to take reasonable and effective measures to avoid foreseeable risk of psychological injury to their employees, such as the pursuer. The defenders were under a duty to take reasonable care that the duties allocated to the pursuer did not damage her physical and mental health. The defenders were under a duty to provide proper support for the pursuer by the appointment of a Deputy Head Teacher to replace Mrs Buttercase. The defenders were under a duty to respond to the pursuer's complaint at the start of the Autumn term in 1997 about the increasing strain on the resources of the Unit. The defenders were under a duty to take into account the resources available to the Unit and the effect on the pursuer of any increase in the number of pupils admitted to the Unit. The defenders were under a duty to record adequately the needs of the pupils at the Unit. The defenders were under a duty to ensure that the pursuer was adequately and properly trained for her role within the Unit. The defenders were under a duty to provide weekly support visits by an Educational Psychologist. The defenders were under a duty to provide suitable facilities for the Unit. The defenders were under a duty to provide the resources of the Leuchars Special Unit to the pursuer. The defenders were under a duty to take action to identify the stress to which the pursuer was subject and to offer her counselling and support. The defenders failed in such duties as condescended upon above. But for the defenders' failures the pursuer would not have sustained the psychiatric injury which she did."

In advancing the first ground on which the defenders' motion for dismissal was based, Miss Smart accepted that there was a general duty on employers to prevent reasonably foreseeable psychiatric injury to their employees. She made reference to Sutherland v Hatton, [2002] EWCA Civ 76, [2002] 2 All ER 1, and to Cross v Highland & Islands Enterprise 2001 SLT 1060. She submitted that in relation to the determination of the foreseeability of psychiatric injury, an employer was usually entitled to assume that the employee could withstand the normal pressures of the job, unless he knew of some particular problem or vulnerability. The defenders were entitled to take the pursuer's hypothyroidism, with which she was diagnosed in 1994, at its face value as a physical illness not connected to stress.

So far as one could tell from the pleadings, the job the pursuer did at Castlehill had a different workload and conditions from the job she had done at Kelty. Accordingly, the pursuer's averments in relation to the stress she suffered at Kelty could not establish that it was foreseeable that she would suffer psychiatric harm at Castlehill. There were no averments to indicate that she had brought her personal difficulties with her class and workload at Castlehill to the attention of the defenders. When she did complain she did so in terms of resources and facilities rather than personal stress. The defenders were entitled to take such complaints at face value. It was not sufficient to make a general complaint about the increasing strain on the resources of the Unit. She required to relate the strain to psychiatric injury to herself.

In support of the second ground of her motion Miss Smart submitted that the pursuer's averments in Article 3 of Condescendence were entirely lacking in specification as to what the defenders should have done to prevent the pursuer's psychiatric injury. No specification was given of the "reasonable and effective measures" which would have avoided foreseeable risk of psychiatric injury. There was no explanation as to how the defenders' alleged failures in duty gave rise to the pursuer's illness. The way in which the size of class and behaviour of the pupils constituted a risk to her health was not explained. It was not said what the size of the class ought to have been. It was not enough for the pursuer to say that the defenders were under a duty to take into account the resources available and the effect on the pursuer of any increase in the number of pupils. There was no indication as to what the effect of increased numbers was and how the defender could have fulfilled this duty. She had to say what the defenders should have done when they had taken account of these factors. There was no explanation of how the alleged inadequacy in her training was the cause of her injury, or that someone with her qualifications ought not to have been allowed to do the job. The defenders' duty was one of reasonable care and not insurance. In the absence of any explanation as to why the defenders should have been proactive, there was no warrant in the authorities for a duty to identify the stress to which the pursuer was subject and offer her counselling and support. It was not said that research had shown that it was necessary to be proactive, or that other similar employers acted in this way.

Mr Bowen for the pursuer invited me to allow a proof before answer. He argued that the totality of the averments in Article 2 of Condescendence relating to the pursuer's working conditions coupled with averments of the defenders' knowledge of her mental state were enough to constitute relevant averments of a breach of duty. Citing Lord Carloway in Fraser v State Hospitals Board for Scotland 2001 SLT 1051 at page 1057I-L, he argued that foreseeability was a matter for proof and not of relevancy. Relying on a passage from the speech of Lord Bridge of Harwich in McLoughlin v O'Brian [1983] AC at page 432, quoted by Lord Carloway in Fraser, counsel submitted that it was for the judge to decide on a consideration of the pleadings whether in his "informed judicial opinion" there was a foreseeable risk of psychiatric injury. The judge could do this simply by looking at the nature of the job described in the pleadings, together with any averments of what the defender knew about his employee. The focus, as counsel put it, was however on the duty of care, rather than what the defender knew about the individual employee.

The crucial averment was the averment that the pursuer had "broken" down at school in the Summer term of 1998 because of the stress of dealing with the pupils, and had again spoken without avail to the head teacher about the need for additional resources. That incident alerted the defenders to the pursuer's concern about working conditions and was a relevant basis for a creation of a duty on the defenders to do something about it. If the meaning of the words "broke down" was not clear, it could be explained in evidence. Although the pursuer complained about strain on resources rather than on herself, there were sufficient factual averments to entitle her to a proof that by the Summer of 1998 the defenders ought to have foreseen that there was a risk of psychiatric injury to her.

On the question of causation counsel argued that there was sufficient material in the pleadings to entitle the pursuer to an inquiry as to whether, if the defenders had taken the steps desiderated by the pursuer, there would have been a substantial lessening of her responsibilities and she would not have suffered psychiatric injury. The clear implication from the averment that additional resources were not provided after she further broke down, was that the stresses on the pursuer would have been reduced had additional resources been provided.

Decision

One of the points which emerges from the judgment in Sutherland v Hatton (at para. 24) is that no job is to be regarded as intrinsically dangerous to mental health. Stress is a subjective concept. People differ widely in their capacity to withstand stress and pressure. An employer cannot know what is going on in an employee's mind. Some people may conceal feelings of stress because they do not want it to be thought that they cannot cope. It is not the job, but the interaction between the individual and the job which causes the harm. In that situation, before a duty of care to prevent psychiatric injury can arise, the employee must establish that a harmful reaction to the pressures of the workplace, in the form of actual psychiatric injury, was reasonably foreseeable in him as an individual. As Hale L.J. said in the Opinion of the Court of Appeal at para.25,

"The answer to the foreseeability question will therefore depend on the particular characteristics of the employee concerned and on particular demands which the employer casts upon him".

The Court of Appeal found that in cases of psychiatric injury employers were entitled to make certain assumptions. Unless the employer knew of some particular problem of vulnerability, he was usually entitled to assume that his employee was up to the normal pressures of the job, and to take at face value what he was told about his ability to cope. So he was not generally required to make enquiries into the psychological state of an employee who was apparently coping in order to ascertain whether or not he was suffering from psychiatric injury.

Against that background I turn to consider the content of the pursuer's pleadings. The history begins prior to June 1994 when the pursuer was still working at Kelty. There she told members of the defenders' managerial staff that she was finding it very difficult to cope. In June 1994 she "consulted" the Assistant Director of Education concerning her stress resulting from management and staff problems. No specification of the nature of the problems is given. The defenders were aware that other staff members at Kelty were suffering from stress, and made it easy for staff there to move to other schools because of the special circumstances (unspecified) which existed there at the time. While still at Kelty, the pursuer was off work with hypothyroidism between October 1994 and January 1995. It is not said that that condition was linked to stress at work, and she apparently asked for leave of absence to visit a relative abroad during that period. She specifically avers that she was not depressed during her time at Kelty. She did not transfer to Castlehill until March 1995. In the light of that history I conclude that at the time of her transfer to Castlehill there had been nothing to alert the defenders to any risk that the pursuer might suffer psychiatric injury. It may be that they were alerted to the risk that she would suffer stress. But that is not enough. In any event, the implication in the pursuer's pleadings is that, in facilitating her transfer, the defenders were taking steps, as they saw it, to improve her conditions of work.

The pursuer goes on to set out at length the extent of her responsibilities at Castlehill after March 1995 and the difficulties under which she laboured. There were no dedicated recreational facilities for special needs pupils and no changing room for those who were incontinent. Between 1995 and 1998 the number of special needs pupils, and the severity and range of their disabilities, increased. There were high levels of behavioural disturbance and the pursuer's free time for administrative work was invariably interrupted. No support was received from the defenders' Behavioural Unit at Leuchars Primary School.

Early in the Autumn term of 1997 she and another teacher told the headmaster and the special needs adviser about "increasing strain on the resources of the Unit". In February or March 1998 she injured her back while restraining a pupil. She had no training in restraint and became anxious that she would injure her neck and back further. When she spoke to management about her concerns she did so in terms of resources and facilities rather than the pressure on herself. In the Summer term of 1998 she "broke down" at school because of the stress of dealing with pupils, and spoke again to the headmaster about the need for additional resources for the Unit. None were made available. At the end of the Summer of 1998 she began to suffer from symptoms of psychiatric injury. Ultimately in September 1998, when she was given no assistance to find a runaway pupil she was so distressed by the incident and the lack of support that she stopped working.

The pursuer's approach to this action on record and in argument was, as I understood it, that the difficulties she had to contend with at work were so overwhelming that it was or ought to have been reasonably foreseeable to the defenders that their employees would suffer psychiatric injury.

Against the background of law set out in Sutherland v Hatton I do not consider that that approach can constitute a relevant case. As I have already indicated, before a duty to prevent psychiatric injury can arise, the foreseeability of such injury to the pursuer as an individual must be proved. Before it can be proved, the pursuer must make sufficient averments of facts and circumstances which demonstrate the way in which the risk of psychiatric injury to her was reasonably foreseeable.

At Castlehill the pursuer's complaints were about lack of resources and facilities, never specifically about the effect on herself. The first sign of psychiatric injury appeared at the end of the Summer term of 1998 when she "broke down" at school because of the stress of dealing with pupils. Very little specification is given of that incident. It is not made clear what is meant by "broke down". Nor is it made clear whether the headmaster or other manager was made aware of the incident. Immediately after the pursuer's concern was again related to resources rather than her own condition. While her reaction was laudable, it meant that the defenders's attention was directed away from her psychological state. Accordingly in my view the averment of the "break down", if proved, would not be enough to establish that the defenders were alerted to the risk of psychiatric injury to the pursuer. She had not been off work due to psychological problems prior to that, nor is there any averment of any such illness among her colleagues. Depressive symptoms did not appear until the end of the Summer of 1998, and shortly after that, in September, the pursuer had had enough and gave up work. While the pursuer's averments indicate that she was occupying the demanding and at times stressful job, I have come to the view that she has failed to aver sufficient facts and circumstances to show that it was reasonably foreseeable to the defenders that she was at risk of suffering actual psychiatric injury. In these circumstances the action falls to be dismissed.

While that is sufficient for the disposal of the case, it is necessary for me to indicate what my view would have been had it been necessary for me to consider the second ground of the defenders' motion for dismissal, namely that the pursuer had failed to aver any causal connection between the defenders' alleged failures in duty and the development of psychiatric injury. In my opinion because of the peculiarities of psychiatric illness which I have attempted to outline above, considerable difficulties face pursuers who seek to establish the existence of a duty of care to prevent such illness and to establish breaches of that duty. It is necessary for such pursuers to aver in clear terms the way in which the steps that they say defenders should have taken would have prevented the onset of their illness. I consider that there was some force in the defender's submissions under this head, but it seems to me that the level of detail which would be necessary to satisfy the defenders' argument would go beyond that which is required by our system of pleadings. In these circumstances I have come to the view that, had I rejected the defenders' first ground, I would have allowed a proof before answer, on the view that the relevancy of the averments on the question of causation cannot be determined without proof.

There only remains the defenders' brief argument in relation to averments in Article 2 of Condescendence relating to physical injuries sustained by the pursuer while restraining a pupil. Had I allowed a proof in this case I would have admitted these averments to probation along with the rest of the pleadings. In my view these averments fall to be regarded as part of the averments relating to the conditions under which the pursuer was working, and could not be said to be irrelevant.