Scottish Court of Session Decisions

Green v. Argyll and Bute Council [2002] ScotCS 56 (28th February, 2002)

OUTER HOUSE, COURT OF SESSION
A218/01	OPINION OF LORD BONOMY in the cause JOHN GREEN Pursuer; against ARGYLL AND BUTE COUNCIL Defenders:   ________________

 

 

Pursuer: O'Carroll; Morison Bishop

Defenders: Mackay, Q.C., R. Milligan; Simpson & Marwick, W.S.

28 February 2002

THE PARTIES AND THE ISSUES

1. In the course of an interesting life John Green has been faced with a number of obstacles. His ambition to enter the police was initially thwarted by his height. Undaunted he developed a career as a hairdresser, progressing from apprentice to manager to proprietor of his own business. With the reorganisation of local government and police forces in the mid-70s came a relaxation of the height requirements, allowing him at last to realise his ambition by joining Strathclyde Police. He was rapidly appointed to the C.I.D., but after eleven years his very successful police career came to an end when he was discharged on account of severe hearing impairment. He then obtained entry to Jordanhill Training College as a mature student and completed a C.Q.S.W. qualification after two years of study. From his days as a trainee hairdresser he had been involved in voluntary social work, working in particular with persons with addiction problems under the auspices of the Council on Alcoholism and being involved in the running of a night shelter. He joined Strathclyde Regional Council as a social worker in their Dunoon Office in June 1992. With further local government reorganisation in April 1996 his job was transferred to the defenders, Argyll and Bute Council. It was not suggested that the change itself had any impact on the pursuer's job. I shall refer to the pursuer's employers throughout the period of his employment as "the defenders". Shortly after the changeover the pursuer suffered a "breakdown" and did not return to work. He last worked on 19 May 1996. The most obvious initial sign of his illness was severe exhaustion. There is an issue whether he was at that time in the throes of an acute episode of psychiatric illness from which he had been suffering to an increasing extent since 1994, or the psychiatric illness developed in the weeks immediately following his initial absence. Parties are agreed upon the nature of the psychiatric illness and that it has beset his life since then. Throughout the proof witnesses spoke highly of his work, his professionalism and his commitment. The battle to try to recover from this illness is his sternest test yet. Whether his illness was caused by the defenders' treatment of him, and whether they are responsible in law for that, are the main issues raised by this action.

HISTORY OF THE EMPLOYER/EMPLOYEE RELATIONSHIP

2. When the pursuer commenced employment with the defenders, he dealt with a variety of cases. He had what was described as a "generic" case-load. In that respect his work was similar to that of the other basic grade social workers. While he remained a basic grade social worker throughout this employment, his role in the office changed. Those parts of the National Health Service and Community Care Act 1990 which related to the provision of welfare services and accommodation for those in need of care were brought into effect in April 1993. While the exact nature of the impact of the changes introduced thereby on local authorities was not fully explored and explained in the proof, it was plain that the administrative burden on social work departments was increased materially. The Dunoon social work office was at that time in an area comprising Argyll, Kyle and Bute, which was part of a larger district taking in Dumbarton and Clydebank. In the District's response to a consultation exercise being carried out within Strathclyde Regional Council social work department in August 1992 to prepare for the forthcoming changes the anticipated impact was described in this way:

"It is expected that the increased volume of work attendant on the implementation of Community Care will place significant increased demands on the current infrastructure (which is in any case not wholly adequate to meet current needs) which will be exacerbated by the distance factor, a major consideration in all service planning in the area. Restructuring is essential to meet the demands of the NHS and Community Care Act 1990 not just at the level of assessment, service, delivery and review, but in terms of planning, liaison and strategy formulation - an additional Area Manager at least is required in order to support proposed re-division of Argyll.....".

The response went on to list the existing staff in Dunoon as one senior social worker, 4.5 social workers, 1.5 home help organisers, one community occupational therapist, and proposed the addition of a community care senior, two social workers, .5 home help organiser and additional occupational therapy hours. The result of this consultation exercise was never revealed. However, initially there was no change made in the complement of social workers.

3. After the change, and leaving aside the involvement of the office in criminal justice matters, the bulk of the work in Dunoon was broadly split into child welfare and community care work. Community care largely related to care of the elderly, some of whom faced other problems such as mental illness and poverty. Between 1993 and 1996 there were some staffing changes because of initiatives for which particular funding was available, such as mental health work. By and large, however, the number of social workers available to cope with the general child welfare and community care case-load remained static. The pursuer had a particular interest in community care. With the encouragement of the Area Manager, David Burke, the pursuer concentrated on community care work, and by mid-1994 his case-load was exclusively one of community care cases. These were divided between clients who required residential care and those who could be supported in their own homes. The split was not explored. The pursuer's perception was that he was handling virtually all community care cases in the Dunoon Office. In reality other social workers, such as Thomas Young, had a number of these cases. On any view the pursuer handled at least 80% of them. On a number of occasions the pursuer asked the defenders to increase the staff dealing with community care. His requests were for a senior social worker for community care services, an additional basic grade social worker and sessional workers who could provide support in the home. Sessional workers were introduced under the management of the pursuer. Eventually it was decided to appoint a community care senior with effect from the beginning of January 1996. Until then there was only one senior social worker in the office. The new appointment was short-lived and was abandoned on 20 May 1996. About mid-March 1996 the hours of one of the sessional workers were increased to help the pursuer with his paperwork.
4. The concentration of community care cases in the hands of the pursuer led to a build-up in his ostensible case-load recorded on the Department's own computerised information system. Between the end of November 1995 and January 1996 in excess of 100 cases were recorded against his name. That case-load was reduced to about 50 or just over, mainly by closing off files where the work was complete. This review of his files was carried out in the context of transferring responsibility as his line manager from the sole senior social worker to the newly appointed community care senior social worker. While estimates as to the manageable case-load for any social worker varied from about 30 cases upwards depending on circumstances, no-one suggested that a case-load much in excess of 50 active cases was appropriate. This issue was explored largely as one of numbers. It is a pity that it did not prove possible to examine what exactly the status of the cases on the list was at the relevant times. Any dispute has to be resolved as one of impression. The pursuer's impression was that he had an enormous active case-load, at times exceeding 100 cases. Other evidence suggested that the real problem was his failure to close off formally the cases which were otherwise completed. In spite of the efforts to reduce his case-load, when the situation was explored just under four weeks after he went off sick, 100 cases were recorded against his name.

THE DUTY OF CARE

5. The first issue to be determined is whether the law recognises a duty on an employer to take reasonable care not to cause an employee psychiatric damage. Mr Mackay, Q.C., for the defenders maintained that no such duty has ever been recognised in Scotland. He maintained that special rules apply to cases of psychiatric illness effectively limiting claims to mental shock, which is something quite distinct from the psychiatric injury involved in the present case. Mr O'Carroll, counsel for the pursuer, maintained that an employer does have a duty not to cause psychiatric illness to an employee, and that that is simply a branch of the general duty to take reasonable care not to cause injury of any kind to an employee.
6. The defenders' approach was to rely on a series of cases in which restrictions have been applied to claims for psychiatric harm which have been recognised, and also to rely in particular on certain dicta in these cases. For example, weight was laid on the opinion of the Lord President (Hope) in Robertson v Forth Road Bridge Joint Board 1995 SC 364 at 365H:-

"Cases of nervous shock, or of psychiatric illness as this type of injury has been described more accurately in the recent authorities, raise questions of unusual difficulty for the Court".

The same point arose 60 years ago in Bourhill v Young 1942 SC (HL) 78 where Lord McMillan said at 87:-

"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".

That case is one of a series of cases, similar to Robertson above, in which the House of Lords has developed rules that apply to the circumstances where a victim has sustained psychiatric harm from "encountering" the physical damage inflicted upon others.

7. These are generally referred to as "secondary victim" cases. The definitive rules for liability are set out in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. By that decision recovery of damages for reasonably foreseeable psychiatric illness sustained as the result of apprehending another person's death or injury is restricted to a person who can establish (1) that he had a close tie of love and affection with the person killed, injured or imperilled, (2) that he was close to the incident in time and space, and (3) that he was an eyewitness. A subsequent attempt to modify these rules in a situation where the relationship between the parties was that of employer and employee was rejected - Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455. Any pronouncements in these cases about the law not granting recognition to claims for psychiatric illness should be read in the context, in which they were made and as applying to that context, viz. claims for the impact on the mind of seeing and having to deal with the catastrophic injuries sustained by others.
8. That these particular rules should be restricted to secondary victim cases was made clear by the majority in Page v Smith [1996] 1 AC 155. In that case the plaintiff was injured in a road accident where physical injury was a foreseeable consequence of the careless driving involved. The plaintiff was an M.E. sufferer. As a result of the accident his condition became chronic and permanent. It was viewed by the court as a psychiatric illness. The majority held that foreseeability of physical injury was sufficient to entitle the plaintiff to make a claim for the psychiatric illness suffered. The special conditions arising in the foregoing cases did not apply. The trial judge proceeded on the basis that physical injury was foreseeable and made no finding in relation to the foreseeability of psychiatric illness. The House of Lords decided that such a finding was unnecessary, and the case has come to be regarded as authority for the proposition that, where a primary victim is within the area of risk of foreseeable physical injury, there is liability where psychiatric illness results, even though that was not foreseeable and there is no physical injury. However, in a series of propositions distinguishing secondary and primary victim cases Lord Lloyd of Berwick at page 197, after setting out the particular rules applying to secondary victims, said this:

"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 a 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'."

Subject to the caveat that in Scots law the foresight required is usually said to be "of the kind of injury sustained", that proposition is even wider than the one contended for by Mr O'Carroll. He simply submitted that, where it is reasonably foreseeable that certain conduct will cause psychiatric illness to a particular employee, then there is a duty to take reasonable care to avoid causing that illness. The decision in Page v Smith is consistent with that proposition.

9. Mr O'Carroll built his submission in support of the duty he contended for upon the basic neighbourhood principal enunciated in Donoghue v Stevenson 1932 SC (HL) 31 where at 44 Lord Atkinson said:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."

What that duty might involve depended upon the particular circumstances of the case - Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 142 at 175-6. In the employment relationship the duty extended to the provision of adequate staff and material and a proper system including effective supervision - English v Wilsons & Clyde Coal Co Limited 1937 SC (HL) 46. A duty was owed to each employee individually - Paris v Stepney Borough Council [1951] AC 367 - but Mr O'Carroll laid little weight on that in the present case since he presented the pursuer as a resilient man of ordinary fortitude.

10. It is easy to see that it may be difficult to prove the causal link between an employer's conduct and an employee's psychiatric illness. The same may be true of demonstrating that the causal effect was foreseeable. What may be difficult today was probably virtually impossible in the fairly recent past. However, if the causal link can be established and if it can be shown that the psychiatric illness was a foreseeable consequence of the conduct complained of, then I, like Colman J. in Walker v Northumberland County Council [1995] 1 All ER 737 at 749, find it difficult to see why the risk of psychiatric damage should be excluded from the scope of the employer's duty of care. Should it not be possible in any given case to establish either of these factors, then no duty of care actually arises. On the other hand, if advances in medical and scientific knowledge enable these factors to be proved, then general principle dictates that a duty of care arises and should be given effect to unless its application is excluded by some other rule of law or some defence. None was suggested by Mr Mackay other than the conditions which apply to the duty owed to secondary victims.
11. Against that background it is not surprising that in a series of cases the duty on an employer to take reasonable care not to cause psychiatric illness in an employee has been recognised. It is noteworthy that that has happened in circumstances not dissimilar from those of the present case. I have already referred to Walker v Northumberland County Council, a case involving a social worker. In that case claims were made for two episodes of psychiatric illness. That for the second succeeded, whereas the first failed. It failed because the psychiatric illness was not a reasonable foreseeable consequence of the workload allocated to the plaintiff. The ratio of the case is set out thus in the rubric:

"Where it was reasonably foreseeable to an employer that an employee might suffer a nervous breakdown because of the stress and pressures of his workload, the employer was under a duty of care, as part of the duty to provide a safe system of work, not to cause the employee psychiatric damage by reason of the volume or character of the work which the employee was required to perform."

In Fraser v State Hospitals Board for Scotland 2001 S.L.T. 1051 Lord Carloway reached the same conclusion in a case involving a claim by a former charge nurse at the State Hospital in respect of a depressive disorder claimed to be caused by a combination of the way in which he was disciplined and the infliction upon him of a punitive work regime. In Cross v Highland & Island Enterprise 2001 S.L.T. 1060 Lord Macfadyen also concluded that a duty of care would arise where psychiatric illness was a reasonably foreseeable consequence of the imposition of an excessive workload on an employee. In two separate Opinions Lord Reed has considered the question whether there is a duty of care to avoid causing foreseeable psychiatric injury in the employment situation. In Ward v Scotrail Railways Limited 1999 SC 255 the question was left for determination after proof. In Rorrison v West Lothian Council 2000 SCLR 245 the action was dismissed because of the absence of relevant averments that the conduct complained of had caused a recognised psychiatric illness. In his opinion at 254, Lord Reed described the circumstances in which such a duty may arise in this way:-

"I can find nothing.... (... in the pursuer's pleadings) which, if proved, could establish that (the pursuer's line managers) ought to have foreseen that the pursuer was under a material risk of sustaining a psychiatric disorder in consequence of their behaviour towards her. They might have foreseen that she would at times be unsatisfied, frustrated, embarrassed and upset, but that is a far cry from suffering a psychiatric disorder. Many, if not all, employees are liable to suffer those emotions, and others mentioned in the present case such as stress, anxiety, loss of confidence and low mood. To suffer such emotions from time to time, not least because of problems at work, is a normal form of human existence. It is only if they are liable to be suffering to such a pathological degree as to constitute a psychiatric disorder that a duty of care to protect against them can arise; and that is not a reasonably foreseeable occurrence (reasonably foreseeable, that is to say, by an ordinary by-stander rather than by a psychiatrist) unless there is some specific reason to foresee it in a particular case."

That encapsulates the pursuer's submission in this case. It will seldom be easy for a pursuer to establish that the risk of psychiatric injury was or ought to have been foreseen by his employer. In both Fraser and Cross the pursuer failed to clear that hurdle.

12. These Scottish authorities are in line with what appears to be accepted to be the position in England and Wales. In Petch v Customs & Excise Commissioners [1993] I.C.R. 789 the Court of Appeal proceeded upon a concession that employer defendants owed the plaintiff a duty to take reasonable care to ensure that the duties allocated to him should not damage his health, against the background that the damage to health was a "mental breakdown" amounting to psychiatric illness. The judgment of Colman J. in Walker v Northumberland County Council was referred to without adverse comment by Lord Hoffman in Frost v Chief Constable of South Yorkshire. I am satisfied, therefore, on the basis of principle and authority that Scots law recognises a duty on an employer to take reasonable care not to cause injury, either physical or psychiatric, to an employee, and that there are no special rules which apply to limit that duty in a case such as this.
13. The pursuer relied on the specific duty of an employer to institute and maintain a reasonably safe system of working. More particularly, he maintained, as it was pled, that it was his employer's duty "to take reasonable care to ensure that the pursuer was not over-burdened with work to the extent that he could not cope with the demands being placed upon him resulting in psychological injury." Mr O'Carroll's submission was that the defenders failed to follow the normal practice of routine supervision of a fairly inexperienced social worker such as the pursuer by a senior social worker. As a result they did not know what they inevitably would have discovered, viz. that his workload was such as to be likely to cause him to suffer psychiatric injury. Had supervision been carried out, they would have adjusted his workload accordingly or provided assistance for him.

SUPERVISION

14. The pursuer did not rely on established practice in the profession or in social work departments in general, but on the recognition by the senior staff of the defenders who gave evidence, that regular meetings between a line manager and a junior member of staff to go over the junior member's work and identify and talk through problems was an important part of their system of working. It was clear from their evidence that they understood that this practice, known as "structured supervision", was widely followed in social work departments. While there was evidence that the main purpose of supervision was to ensure that the member of staff supervised was delivering an effective social work service, there was also evidence that the supervisor would look for signs that work was having an adverse impact on the well-being of the junior employee. Since any responsible supervisor would know to take account of evidence that work was having an adverse affect on an employee, the defenders did not dispute that structured supervision sessions were a potential source of information that pressure of work was causing such stress in an employee that his health was likely to be adversely affected. However, how vital structured supervision sessions were in this case is controversial. I shall return to that once I have considered the evidence about the extent to which the pursuer was supervised in a structured way.
15. From the commencement of his employment in June 1992 until January 1996 the person responsible for supervision of the pursuer was the senior social worker in the department, Ann MacLean. The evidence was clear that until the Spring of 1994 she met with the pursuer roughly fortnightly to oversee his work. The pursuer claimed that supervision in this form ceased on 25 April 1994, by which time his case-load was more or less exclusively one of community care cases. From that date no record existed of any such supervision taking place. In contrast to that, there was a clear record in a supervision record book of supervision sessions on 17 March, 11 April and 25 April. In Ann MacLean's handwriting were noted decisions made in a number of cases. The pursuer recalled that Ann MacLean went much further in those days and provided him with written feedback from such sessions within a couple of days. He found that very useful. She confirmed that what she gave him was a copy of each entry. The note for 17 March recorded that the department were advertising for sessional workers to provide home care. They were to be supervised by the pursuer. The note for 11 April recorded discussion of a Community Care Forum that the pursuer was setting up to bring together health service and social work staff involved in community care to discuss issues affecting them. The pursuer said that Ann MacLean was not a supporter of the idea. The entry for 25 April mentions discussion of "Management of Community Care" and of the number of sessional workers to be engaged and their working hours. The entry also records that case notes were to be brought up to date. That entry relates to two matters which were fairly major contentious issues in the proof - that the pursuer had a problem completing paperwork and that in his opinion additional staff were required for community care work, in particular another basic grade social worker and a senior social worker dedicated to community care.
16. Supervision appointments should have been entered in the diaries of both staff. The absence of any record of any subsequent sessions tallies exactly with the pursuer's recollection. Miss MacLean claimed that the sessions continued throughout 1994 and 1995 in spite of the absence of records and the fact that her own diary contained no note of such appointments. That contrasted markedly with the evidence from a number of witnesses that indicated that she was a social worker of the old school who did things as they should be done. The pursuer himself had a high regard for her professional competence. However, he was adamant that her primary interest was in child welfare and that she never really developed an interest in community care. Indeed he maintained that from April 1994 she more or less left him to his own devices. I found many parts of Ann MacLean's evidence unsatisfactory. Her answers were often evasive. Failure to answer directly the question that was asked was a feature throughout her evidence. Her recollection of these events, which admittedly occurred between five and a half and nine years ago, was often poor. The vagueness of her evidence, for example, about how community care assessment forms should be completed, and her often over defensive response to questions, led me to regard significant parts of her evidence as unreliable. Her explanation that, since supervision appointments were often cancelled, she "would catch up with" the pursuer later was unconvincing. I preferred the evidence of the pursuer on this matter. It is consistent with the records. I do not accept that Ann MacLean continued to supervise the pursuer in a structured way after April 1994.
17. In the event one of the changes sought by the pursuer was introduced in January 1996 when a senior social worker for community care was appointed. That meant a potential new supervisor for the pursuer. I say "potential" because I do not believe that any supervision meeting occurred between the appointment of Ian MacFadyen to the post and the pursuer's illness. Mr MacFadyen claimed to have supervised the pursuer on two occasions. There was no evidence of what arose on either of these occasions. Mr MacFadyen was extremely vague on the whole matter, and evidence from the defenders' record of the pursuer's case-load points clearly to the absence of supervision. Two computer print-outs from the defenders' social work information system listing the pursuer's case-load were produced. The first was dated 29 November 1995 and reflected the situation between then and January 1996 when preparations were in hand for the introduction of the senior social worker for community care. In fact the print-out recorded the pursuer as working in a team known as "Community Care". There were one hundred and four cases listed. It was rather unsatisfactory that no attempt was made by either party to analyse either print-out to try to show how much current work was involved in the cases. It is likely that the November list included a number of names where no ongoing work was required and all that was outstanding was some paperwork required to close the file. Others might have involved significant social work department support to enable people to continue to live independently at home, but that support would be provided by sessional workers under the pursuer's general direction. The evidence of Ann MacLean and Ian MacFadyen coincided on the result of reviewing the pursuer's case-load prior to the changeover in January 1996. In addition, that evidence is supported by a memo of 14 June 1996 written by Ann MacLean to her service manager Helen Muir following upon her resumption of responsibility as senior social worker for all services including community care. In that memo she recorded that, when she and MacFadyen reviewed the pursuer's case-load in January 1996, he had fifty pieces of work. When he went off sick he had one hundred pieces of work on his case-load. It is inconceivable that that situation could have developed if Mr Green had been supervised by Mr MacFadyen, who himself did not envisage a case-load of greater than just over fifty ever being appropriate, and who acknowledged that one of the things to look out for at supervision sessions was that cases were properly completed and removed from the case-load.

FORESEEABILITY

18. If the pursuer had been supervised, is it likely that the defenders would have realised that there was a risk that he would suffer psychiatric illness? In dealing with this I assume a causal link between his illness and his working conditions. This is a difficult question to answer. Evidence bears upon it from a number of different angles.
19. While the defenders found it difficult to secure a replacement for the pursuer and in the short-term introduced a number of ad hoc arrangements to cope, the person who ultimately succeeded him did the same job for two years and coped well. That was the unchallenged evidence of David Burke's successor, the current service manager for the defenders Helen Muir, about the pursuer's replacement Edwina Donaldson. (She was named in the pursuer's list of witnesses but was not called). It was not suggested that the regime was any different then. That evidence tends to suggest that the workload and the inherent nature of the work are not on their own indicators of a risk of psychiatric illness.
20. The pursuer's wife, Christine Green, from whom he is now estranged but with whom he remains on good terms, was a home-help and her supervisor and others worked in the same office as her husband. She claimed that they were worried about his appearance and about his case-load. Yet none of the staff that she referred to was called as a witness. The one office colleague who was called, Thomas Young, another basic grade social worker, gave evidence about the pursuer having a large case-load and looking tired and under pressure. He also spoke of his awareness that the pursuer had asked for an additional social worker to be allocated to community care. He described the pursuer as a "headless chicken", always rushing about with too much to do. However, he gave no indication of thinking that the pursuer might be driven to psychiatric ill health. The pursuer's wife also gave evidence of regular profuse sweating and increased bowel movements, which led the pursuer to come home to go to the toilet and change his shirt regularly and sometimes more than once a day. The effect of that was to conceal from others at work what was happening, particularly since he always wore the same colour of shirt. It was well known that the pursuer was prone to migraine headaches, and therefore the headaches he suffered were not an indication of anything exceptional. A change in his relationship with both his wife and his adult daughter, so that he became remote and impatient where previously he had been interested and patient, was not reflected in anything observed by any witness in the workplace. His absence record improved between 1994 and 1995. His own doctor gave evidence that from 1994 he knew that the pursuer was under pressure at work which was causing stress that was affecting his health. Nevertheless he did not certify any absence as so related for a number of reasons which are neither here nor there, and could not say that it would be obvious to a medical layman that his health had deteriorated. The fact of the matter is that there was nothing about the pursuer's absence or illness record to alert the defenders to the possibility of his health being adversely affected. The pursuer and his wife both said that they would not have regarded it as appropriate to disclose to the defenders the feeling that the pursuer could not cope with his workload. It is interesting to observe that Catherine Ward, who is now the pursuer's partner and who first met him in a professional capacity in August 1995, described him as then appearing "quite bright, cheery and busy, quite chirpy". She told Professor Cooke, whose evidence I shall refer to later, that before he went off work he was "bright and breezy, an active individual, nothing was too much trouble for him, a marvellous colleague who always had time for everybody else". She lost touch with the pursuer when he went off ill and encountered him again about three years later. She was shocked by the change in him.
21. One colleague who did observe unusual behaviour was Moira Brodie. She worked at a different office in Dunoon and dealt with the applications for residential care for elderly people which would require local authority funding. She, however, had no supervisory role in relation to the pursuer. He passed forms to her which she took to headquarters in Dumbarton to be processed. That was normally on a Tuesday. She should normally have received the forms before close of business on a Monday. As time passed the forms tended to be delivered later and later by the pursuer, initially on Monday evening and later by being put through her letterbox early on Tuesday morning or by being handed to her at the ferry as she left for Dumbarton. On one occasion the pursuer missed the ferry and had to drive to Dumbarton to deliver the forms himself. That suggested to her that work was being done late at night in his office. She noted also that his applications were hand-written (which was because there were inadequate typing facilities) and that eventually he appeared to be rushing through his assessments. He even pointed out to her on one or two occasions that the forms had been signed by the senior social worker before they had been completed. In spite of her anxiety about this, however, the witness did not raise the matter with Ann MacLean, who was then the pursuer's senior social worker. She found her a difficult person to approach. As a result the matter was not brought to the attention of his superiors. Indeed the witness went on to say that "on reflection now" she realised that he had not been coping with his case-load. One further episode appeared to her to be relevant to the issue. When an elderly person goes into residential care, the situation has to be reviewed by the senior social worker after four weeks. These reviews were not being completed timeously. A dip sampling exercise was carried out and it was discovered that, in spite of an assurance from Ann MacLean's boss that the matter was being attended to, some reviews remained outstanding. That was, however, more a matter relating to the responsibility of the senior social worker Ann MacLean, and confirms my conclusion that she lacked interest in community care work. The pursuer did not complain about the failure to review cases timeously.
22. Moira Brodie's evidence pointing to the pursuer having to work peculiar hours on occasions is consistent with the evidence of the pursuer and his wife that he would even return to the office after midnight to get peace and quiet to complete work. They claimed that this was a regular occurrence. However, the pursuer was quite clear that he claimed overtime for all the additional work he did outwith his own home. Indeed, he claimed that on one occasion Ian MacFadyen, on the instructions of his boss Helen Muir, drew him up for submitting an overtime claim including hours after midnight. He said that their instruction was that overtime hours should be shown as following upon ordinary working hours unless they related to an emergency call-out. The pursuer's account of this was supported by Catherine Ward, who claimed to have overheard the conversation when Ian MacFadyen told the pursuer that Helen Muir was concerned about the way in which he was recording his overtime. I am not able to accept the pursuer's account of this. While it is understandable that he would not be able to lay his hands on the form that might be in issue, I would expect his own diary in which he recorded his overtime working to reflect the fact that he worked at these hours. The most extreme example of overtime working in his diary was on 8 January 1996 when he worked from 8.30 p.m. until 1.30 a.m. That in itself is consistent with a call-out. The hours for which he claimed were consistent with those that might reasonably be expected to be worked by the average social worker. There was, therefore, nothing in the paperwork, which he was submitting to the defenders to claim overtime, to alert them to the possibility that he was not coping and was at risk of psychiatric illness.
23. The evidence as to what work the pursuer actually did was fairly general. Where residential care was required, he might on occasion have to take clients to see a selection of potential homes. Some cases were complicated by mental health issues, dysfunctional families, and financial complications relating to the sale of the elderly person's home. The pursuer himself mentioned a few examples of difficult and sensitive cases and the work involved in them. There was evidence that the pursuer had to drive a great deal because of the spread of the jurisdiction of the Dunoon office. There was more detailed evidence that a great deal of time was taken up by completing needs assessment and financial assessment and other related forms. However, these were aspects of the work on which the pursuer thrived. Indeed he welcomed the opportunity to assist colleagues in making the financial calculations necessary in the financial assessment because he had a particular knack for doing them. His contention was that his colleagues found them a real bind. That was confirmed by Thomas Young, who dealt with a significant number of community care cases.
24. The pursuer also relied on the opinion of an expert witness, Judith Howard-Rees, an Occupational Health Practitioner, that the defenders ought to have realised that they were exposing the pursuer to risk of ill health. Her explanation that stress is the body's physiological reaction to an excessive or inappropriate level of pressure was not disputed. She identified a number of signs of stress. Some arise in this case. There might be an increase in the body's level of arousal affecting the activity of various organs. A person might, during intense periods of activity, suffer from profuse sweating to cool down the body. Regular episodes of sweating and increased bowel movement are a common feature. There may be an increase in episodes of migraine. A person may become irritable, continually tired and suffer from low esteem. From there he might descend into a state of anxiety and depression and thus become mentally ill. The question was whether there were circumstances known to the defenders which ought to have alerted them to a material risk that this would happen to the pursuer. Mrs Howard-Rees stressed the importance of supervision as support and reassurance for junior employees. However, she recognised that some people work much better on their own without supervision. A major problem in the way of applying her opinion is that she reached it on the basis of facts, some of which were not made out in evidence. I have already indicated my conclusion about the hours worked by Mr Green. Mrs Howard-Rees relied on his working between 1.00 a.m. and 5.00 a.m. on a regular basis and submitting claims for overtime between December 1995 and May 1996 based on that pattern of working. She had also discussed with the pursuer the nature of his work in more detail than was ever presented in evidence in court. She had discussed twelve specific cases. It may be that the evidence touched on one or two of these, but even that is not clear. In the end, however, she relied principally upon certain features, that she considered the defenders ought to have been aware of, as putting them on notice of the risk of psychiatric illness. These were the pursuer's irritable behaviour, the fact that he was working alone, the fact that he went home at lunch-time for the toilet and a change of shirt, and an increase in his absences in 1994. As I have already indicated, I do not accept that there was anything in the absence record to alert the defenders to the risk of psychiatric illness. No member of the defenders' staff spoke of the pursuer being irritable at work, nor of being aware that he went home to toilet and change. She also relied on Mr Green's claim that he was using annual leave to catch up on his sleep and was taking further sick leave to recover from stress. There was no basis in the evidence for concluding that that was known or should have been known to the defenders.
25. In listing the "stressors" that affected the pursuer she relied to a material extent on features which she regarded as undermining the pursuer's efforts and confidence in a job in which he was relatively inexperienced. In addition she highlighted the fact that Ann MacLean and Moira Brodie did not appear to get on with each other as a feature that added to the pursuer's workload. Yet what she was identifying were features that are common in the workplace, and the exercise of judgment, rightly or wrongly, by superiors who were entitled to make the decisions which they did. It was well known throughout the department that finance was not readily available to increase the staff complement, and that a very strong case would require to be made if resources were to be reallocated within the existing budget. Ann MacLean's negative attitude to the Community Care Forum, which had the effect of removing an opportunity for those involved in the care of the elderly and disabled to discuss their common problems, was probably misguided and short-sighted. It may be that Mr Burke did not react as the pursuer would have wanted in 1994 , at a meeting of the whole social work team, when the pursuer made an impassioned plea for additional staff. On a number of occasions the pursuer made it known to the defenders that in his opinion an additional social worker and a senior social worker dedicated to community care were required. But for a junior employee not to get his own way on matters which in the end of the day are matters of professional judgment cannot be said to be something that his employers ought to foresee as giving rise to a risk of psychiatric illness. I had no difficulty accepting the evidence that Helen Muir and others gave that obtaining authority to engage additional staff in a local authority department is a bureaucratic and lengthy process. In the course of his time with the defenders the pursuer saw a number of sessional workers engaged to provide flexibility in the service he was providing to support the elderly and infirm in their own homes, the engagement of a senior social worker dedicated to community care, and the extension of the hours of one of the sessional workers in March 1996 to assist him with paperwork.
26. Mrs Howard-Rees referred to a number of publications between 1988 and 1995, and the decision in the well known case of Walker v Northumberland County Council in 1994, as material which ought to have raised awareness among all public authorities of the risks associated with stress at work. From that published material she drew no particular conclusion other than that public authorities should by 1994 have been aware of the potential of stress to cause psychiatric illness, which the senior staff of the defenders who gave evidence accepted. She acknowledged that the Government had never issued a clear policy statement to public authorities about the management of stress in the workplace. She also accepted that a certain amount of stress can bring out the best in people, and that whether or not stress is excessive can depend on the vulnerability of the particular individual.
27. In the end I have been unable to identify any particular feature of the pursuer's circumstances, that suggested a risk that he might suffer psychiatric illness, and that proper supervision would probably have identified. Mr Green struck me, and indeed others who commented in their evidence, as a thoroughly reliable professional. While he sought assistance, he never complained that he was not coping. He also struck me as an independent man who would not readily have acknowledged that he was unable to cope. He worked in fairly small offices at two locations. His own room at Church Street and later at King Street was shared with others who had an opportunity to observe anything pointing towards the risk of psychiatric illness. No-one gave evidence of observing such features. Throughout most of the critical period he and Ann MacLean were in passing contact, since she worked in an adjacent room. The opportunity was there for him to raise any issue affecting him. She did not strike me as the most approachable of people, but the pursuer had a high regard for her professional competence and was not in awe of her. He viewed her as having no interest in community care, but he did not for a minute suggest that she would have refused to discuss any anxiety he had about his ability to cope with the job. I readily recognise that it would not be easy for the pursuer to raise such concerns with his senior, whoever that was. However, that simply indicates that, either at a formal supervisory meeting or informally, the pursuer was unlikely to disclose that anxiety.
28. The arrival of Ian MacFadyen as senior social worker for community care was welcomed by the pursuer. The post was one he had always advocated. At mid-March Ian MacFadyen arranged for one of the sessional workers to work additional hours to provide administrative assistance to the pursuer. The pursuer welcomed that. The pursuer and MacFadyen were in regular passing contact. The opportunity was regularly there for the pursuer to raise issues with MacFadyen. There was no evidence that the pursuer mentioned anything to MacFadyen that might have tended to indicate that he was not coping with his work.
29. It was suggested by Professor Cooke, supported to some extent by Mrs Howard-Rees, that the size of the pursuer's case-load alone was sufficient to alert the defenders to the risk that he would suffer psychiatric injury. However, Professor Cooke had not carried out an in-depth analysis of the pursuer's workload. In any event, as I have already indicated, the nature of the pursuer's work was not examined in sufficient detail in evidence to enable conclusions to be drawn about the impact on him of the volume of work alone. The evidence about his unexceptional overtime claims conflicted with the view that volume alone was indicative of such a risk. It was a feature of the Dunoon social work department that all staff were very busy. I have already mentioned the evidence that the pursuer's successor was apparently able to cope with the workload. There were two pieces of evidence that could be viewed as giving support to Professor Cooke's view. These were to two memos dated 14 June 1996 and 12 July 1996, written by Ann MacLean to Helen Muir, describing the unsatisfactory state in which she found the paperwork, or rather the lack of it, on resuming responsibility for community care coincidentally with the pursuer going off sick. She described the community care aspect of the department as "in crisis". She mentioned reviews that had not been attended to by her predecessor. She also expressed the view that it was little wonder that the pursuer was on extended sick leave through exhaustion in the context of noting that about 75% to 80% of referrals were directed to him. The pursuer's case-load had increased from 50 to about 100 in just over four months. In her evidence Ann MacLean played down the terms of this criticism, and maintained that she was simply expressing the view that the system as it was then organised was "not working out". That suggested to me that much of the emphasis in the memos was self-protection - she appeared to wish to distance herself from the work of MacFadyen between January and May. What is striking about the two memos is that they do not indicate that any client of the department has suffered in any way because of the failure of the pursuer to make proper arrangements for community care. That is entirely consistent with the evidence of Ian MacFadyen that he did not observe anything in the quality of the pursuer's work to cause him concern. The case-load of about 100 was not analysed to identify cases which were complete or in respect of which the pursuer had little or no ongoing personal involvement. I have concluded that, having regard to all the circumstances, Professor Cooke's opinion was not warranted by the evidence in this case.
30. I have not been persuaded by the evidence that the defenders either were aware or ought to have been aware of factors indicative of a likelihood that the pursuer would suffer mental injury because of his workload, even if he had been supervised properly.

CAUSATION

31. The circumstances leading to the pursuer's initial absence were fairly dramatic. On Friday 17 May 1996 he had to deal with an emergency admission to a nursing home. In the course of dealing with that he experienced intense localised pain on the top of his head, a pain which he described as different from migraine, but the cause of which was not specifically accounted for in the course of evidence. He slept right through the next day and was wakened by his wife at 10.30 p.m. to respond to a request from the police to take an abscondee back to his residential home in Oban. He described his own behaviour in undertaking that task as bizarre. He eventually got home at 3.00 a.m. on Sunday morning. He went straight to bed. His next recollection is of attending the doctor some days later feeling completely washed out. His general practitioner had a record of seeing him on 28 May when, in spite of recording that he found the pursuer exhausted through stress and needing time off work, he certified "sinusitis" as the cause of his absence. This was to cater for the general reluctance of people to disclose to their employers that their absence may be for reasons not entirely physical. Dr Stewart explained that he believed the condition was related to the pursuer's work. He said that his opinion had always been that it was something which had gradually built up. After a few weeks he did certify his illness as a stress reaction. Two distinguished experts gave evidence in which they broadly agreed about the nature of the pursuer's illness, but differed about the precise cause. The brief account I have given of the onset of the illness and Dr Stewart's opinion have helped me to resolve that controversy.
32. David Cooke, a Clinical Psychologist of twenty five years experience and Professor of Forensic Psychology at Glasgow Caledonian University, concluded that the pursuer suffered from a major depressive disorder together with a co-morbid generalised anxiety disorder. He acknowledged that, viewing matters retrospectively as he had to when he was first involved in April 2000, it was difficult to date the onset of the illness. He came to the view that it developed probably at some time between 1994 and May 1996. He attributed the illness to stress caused by the high job demands made of the pursuer and his lack of control over the pace of his work. Dr Michael Sharpe is a Consultant Psychiatrist specialising in psychological medicine with a similar length of experience. He also diagnosed a major depressive disorder associated with symptoms of anxiety, in particular a degree of agoraphobia and specific phobia relating to his workplace. However, he concluded that the depressive disorder appeared to have developed sometime shortly after the pursuer ceased working. That led him to conclude that it was the pursuer's realisation of his inability to continue working at the rate he had been doing which led to the depression, rather than a more direct link with workplace pressure. He attributed the pursuer's initial absence, following the weekend episode, to a headache of a migraine nature, and regarded the depressive symptoms as developing while he was absent.
33. I consider that Dr Sharpe was influenced in arriving at this conclusion by giving weight to factors which were not established by evidence. He thought it possible that difficulties of increasing hearing impairment contributed. There was no evidence that Mr Green's hearing was deteriorating to the point where it was having an adverse impact on his work. The only impact that his hearing impairment had on his work was that it led to his occasionally seeking out the more peaceful environment of a room in Moira Brodie's office to do paperwork away from the aural distractions of his own office. In 1994 the pursuer was concerned for a while about the possibility of testicular cancer. Dr Sharpe said that that worry might have contributed to the stress that subsequently gave rise to his depression. However, it was clear from the opinion of the psychologist who saw the pursuer at that time, Fiona Alexander, that work-related factors were coincidentally of concern to the pursuer. There was nothing in the evidence to indicate that, once his fears on that front were allayed, the pursuer continued to be anxious about cancer. He rejected an offer of treatment. Dr Sharpe acknowledged that he may have read more into the medical records than he ought to have. He also relied on comments in the medical records that the pursuer is an "intense and rather solitary man" and that he is conscientious and meticulous. He thought that he might have had an almost obsessive tendency to do each item of work completely with a rigid conscientiousness that would not contemplate taking a shortcut. While there was some material in the medical records to suggest that the pursuer took a very close interest in the cases of some of his clients, that seemed to me to be no more than one might expect of a conscientious social worker. If he was doing his work in a way which was inappropriate, I would have expected that to have been mentioned by a colleague such as Ann MacLean. There was no evidence that he worked in an inappropriate way. Dr Sharpe also did not rule out the possibility that there was a direct link in this case between the illness and workplace pressure causing stress.
34. While I have not found this an easy issue to resolve, I have been persuaded by a combination of factors that Professor Cooke's view that the illness was the result of stress caused by the pursuer's workload is probably correct. It is consistent with the fact that he was suffering stress symptoms from 1994 onwards, that these symptoms were in the opinion of the general practitioner related to his work, that the pursuer suffered a sudden and debilitating illness while trying to satisfy the particularly heavy emergency demands of his work, and that the contrary opinion of Dr Sharpe was based to an extent on factors for which there was not reliable evidence.
35. When Dr Sharpe saw the pursuer in October 1999 and when Professor Cooke saw him in April 2000, his illness was in partial remission. There was cause for optimism. However, once a person has suffered a major depressive episode, there is an increased risk of repetition, and that risk increases further following another episode. Both experts agreed that the pursuer subsequently suffered a further major depressive episode. Both were agreed that this was a serious episode. Professor Cooke described it as one of "high severity". Dr Sharpe would not use that terminology because he reserved it for the most serious cases involving in-patient treatment of immobile persons. In essence, however, the witnesses were agreed about the nature of the illness. This episode followed upon the particularly stressful experience of caring for his mother as she developed severe dementia and then continuing to visit her in full-time care. Reference was also made to the deaths of two close friends of the pursuer, but the evidence suggested that these were not particularly stressful events for the pursuer. In addition the pursuer had stopped taking the anti-depressant medicine prescribed. He had experienced some side-effects and as a result had been taken off the medicine. With the wisdom of hindsight, it would probably have been better for his doctor to have prescribed an alternative. There was also evidence that the court action was playing an increasingly dominant role in his life. Taking account of all these factors, of which only his mother's illness had no relationship with the first episode, it is my opinion that the root cause of the second episode was the circumstances which caused the first one. Even if it was not the sole cause, it was undoubtedly the major one. There may have been a period of about a year when the pursuer's illness was in partial remission, but there was no clear evidence that he reached a stage when he might have been expected to resume employment.
36. The experts were not at one on the likely outcome. It was the opinion of Professor Cooke that the pursuer was unlikely ever to be fit to return to work. On the other hand Dr Sharpe considered that with appropriate treatment there was a more than fifty percent chance that he could return to even fairly stressful employment. He had in mind a year or more of treatment with a psychotropic drug combined with a course of cognitive therapy to address the socio-phobic elements of his illness. Dr Sharpe also thought that he was an ideal candidate to be assisted in regaining his self esteem by taking on an active role in voluntary work. The pursuer did not feel that he could undertake any role which demanded a disciplined approach to life. It is perfectly understandable that he should feel that way at present. It was also Dr Sharpe's opinion that the conclusion of this litigation would materially improve the pursuer's prospects of recovery. Having regard to the pursuer's past record of initiative and success in various fields, and bearing in mind that Professor Cooke has virtually no experience of patients who return to work and of judging their prospects of doing so because of the general nature of his clientele, and having regard to Dr Sharpe's greater experience of such circumstances, I am persuaded by his opinion that there are reasonable prospects of the pursuer returning to employment.

DAMAGES

37. The only area of major controversy in calculating damages was the computation of future wage loss and its impact on pension loss. While both parties led evidence form employment consultants to deal with this issue, I have found it unnecessary to analyse that evidence in detail to reach a conclusion. That is largely because the defenders have proposed figures which I consider to be reasonable in light of the conclusion I have just reached about the pursuer's prospects of recovering sufficiently to seek employment. Counsel were agreed that, if the pursuer were to be awarded full future wage loss, the appropriate multiplier would be 8.05, giving a figure of £155,059. The defenders proposed modification of the multiplier to 5, giving a figure of £96,310. In keeping with that approach the defenders proposed a modest modification of the full pension loss figure from £45,610 to £40,000.
38. There was minor disagreement over past wage loss. That related to the fact that the pursuer had some modest casual earnings at one point during his absence. But for that his past wage loss would have been £77,433. I would have modified that to £76,000. The defenders suggested that the pursuer might have done some other casual work for a time after November 1999. Looking at the overall history of his illness and taking account of his age, I consider that that is to expect too much. The pursuer's employment was terminated around the end of 1997. The calculation of past wage loss proffered by both parties took account of loss of half pay for four months and full wage loss from termination. Counsel were agreed that interest should be calculated from 1 January 1998. Although the figure I have awarded reflects the position at the end of 2001, it is appropriate that interest should be calculated to the end of February 2002, when decree will be pronounced, and amounts to £12,660.
39. Solatium was agreed at £12,000, with interest on £10,000 amounting to £2,300.
40. Had fault been established the following damages would have been awarded:

Solatium £12,000

Interest thereon £2,300

Past Wage Loss £76,000

Interest thereon £12,660

Pension Loss £40,000

Future Wage Loss £96,310

Total £239,270

41. I would have awarded £240,000.
42. As it is, the interlocutor which will give effect to my decision will repel the pleas-in-law for the pursuer and the first plea-in-law for the defenders and sustain the second and third pleas-in-law for the defenders and assoilzie them.