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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 186
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A695/04
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OPINION OF LORD EMSLIE
in the cause
CHRISTINE ROBERTSON
(AP)
Pursuer;
against
THE SCOTTISH
MINISTERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Logan; Campbell Smith WS
Defenders: Sheldon; Brodies
22
November 2007
Introduction
[1] The
pursuer is a prison guard employed by the Scottish Prison Service. In this action she claims damages from the
defenders, as representing her employers, in respect of alleged bullying and
harassment at work between early 2000 and late 2001. Her claim encompasses solatium for anxiety and distress, leading on to more serious
psychiatric illness, together with a continuing loss of earnings in the period
after she was medically signed off work with effect from 31 October 2001. The summons was served on 9 September 2004, and since then the defenders
have maintained a full defence on both merits and quantum.
[2] The
pursuer's claim against the defenders is advanced on three separate
grounds. First, she makes a direct
complaint against her employers at common law, alleging that in various ways
they failed to take reasonable care for her welfare. Secondly, she seeks to have them held
vicariously liable for the intentionally harmful conduct of the
fellow-employees who allegedly bullied and harassed her. Thirdly, she proceeds by way of an action of
harassment under section 8 of the Protection from Harassment Act 1997, founding
on essentially the same conduct as is alleged to underpin her claims at common
law. For their part, the defenders
invite the court to dismiss the whole action as fundamentally irrelevant and
lacking in specification, and also as time‑barred by virtue of sections
17 and 18B of the Prescription and Limitation (Scotland)
Act 1973. I have now heard a
wide-ranging debate on these preliminary issues, and for convenience propose to
consider the various areas of dispute in turn.
The pursuer's direct claim against her employers at common law
[3] In
submitting that the pursuer's direct case against her employers at common law
was fundamentally irrelevant, counsel for the defenders stressed that in any claim
of damages for non-physical injury a pursuer must aver and prove (i) the
development of some specific and identifiable psychiatric illness or condition;
(ii) in circumstances where reasonable employers ought to have foreseen or
appreciated the risk of such a condition developing; and (iii) caused by acts
or omissions which reasonable employers, in the exercise of a duty of
reasonable care for their employees' health and welfare, could and should have
taken steps to prevent. In particular,
averment and proof of the foreseeability of significant psychiatric injury was
an indispensable requirement, since mere anxiety or upset, whether foreseeable
or not, was at common law insufficient to give rise to any duty of care or,
consequently, to any cause of action. On
these matters, reference was made to cases such as Rorrison v West Lothian
Council 2000 SCLR 245; Hatton
v Sutherland 2002 ICR 613; Barber v Somerset County Council 2004 1 WLR 1089; and Banks v Ablex Limited
2005 ICR 819.
[4] While
it was acknowledged that in condescendence 5 the pursuer offered to prove the
development of recognised psychiatric conditions, there was on Record a total
absence of any averments as to what her employers "knew or ought to have known"
at any stage. In addition, the pursuer's
averred complaints and reports to her employers (at pages 6 and 7 of the
Record), were extremely limited in nature.
They did not apparently touch upon the alleged bullying and sexual
innuendo averred at page 5C, nor upon any "campaign of victimisation, intimidation
and harassment" as mentioned at page 8B.
As pled, these complaints and reports concerned little more than robust
expressions of view in the context of union-related disagreements at intervals
of several months. There was no
suggestion that the pursuer's employers, at any stage, had any reason to
suspect that she might be, not merely angry, annoyed, frustrated or upset, but
susceptible to serious problems with her mental health. It was not suggested that the pursuer was in
any way unfit, by May 2001, to carry out her duties when seconded to Holland
in connection with the Lockerbie trial, and the very limited averments as to
what happened in the period after her return did not materially alter the
situation.
[5] In
short, it was said, the pursuer had failed to aver any proper basis on which relevant
duties of care might have been incumbent upon her employers. It was therefore not surprising to find that,
in condescendence 6, the pursuer had altogether failed to set out any
intelligible duty of care, or even to allege that, but for breaches of duty by
the Scottish Prison Service, her psychiatric illness would not have
occurred. The alleged duty at 6A to
"ensure" that the pursuer was not subjected to injurious bullying or sexual
harassment at work amounted to an obligation of insurance and could not be
sustained. In any event, no duty of care
could arise if the employers were not averred to be aware of such
problems. Furthermore, the alleged
duties regarding investigation at 6B-C were irrelevant because public policy
considerations denied any right of action relative to criminal investigations undertaken
by the police or, by analogy, the prison service:- Waters v Commissioner of
Police of the Metropolis 2000 1 WLR 1607.
In any event, the alleged duties of notification and assurance were
irrelevant for want of essential specification, as was the alleged duty to
progress investigations "within a reasonable time":- cf Riddell v Reid 1941 SC
277; McGuffie v Forth Valley Health Board 1991 SLT 231. The inadequacy of those averments of duty was
further highlighted by consideration of the inadequate averments of alleged
harassment in condescendence 4. One
remark in the heat of the moment was alleged against the pursuer's
fellow-employee Elms; Anderson was blamed for expressing sympathy for his
suspended colleague Jack, and for making insinuations against the Governor of
the prison; and as regards the more important averments against Jack, there was
no specification of when or by whom he was allegedly overheard to say certain
things, or even whether these things were said in a work context. The inadequate averments of duty also had to
be read alongside the pursuer's own averments as to the extensive steps which
her employers actually took to investigate and resolve such grievances as she
drew to their attention. The fact that
such grievances were not, in the end, upheld did not show that the employers'
response was inadequate, and in the end the pursuer's averments demonstrated
decisive action (consistent with her own wishes) in relocating her to positions
remote from the fellow-employees about whose conduct she complained.
[6] In
response, counsel for the pursuer submitted that the court should not judge his
client's averments too strictly. The
pursuer's complaints and reports to her superiors were set out in
condescendence 4, and these should be held relevant at this stage to justify
inquiry on the pursuer's direct case against her employers at common law. Counsel did, however, concede that the
averred duties in condescendence 6 were "not well expressed", although these
had to be read along with the averments at 8A regarding failures in duty by the
Scottish Prison Service. On any view, as
confirmed by the decision in Waters,
there was no public policy reason why the alleged duty to make proper investigations
in an employment context should be ruled out as irrelevant.
[7] In
my opinion, no relevant common law case is pled against the pursuer's employers
here. Without going into unnecessary
detail, I am unable to identify any sufficient averments which, if proved,
would entitle the court to hold that the Scottish Prison Service ever knew or
ought to have known that the pursuer was at risk of developing some serious
psychiatric illness. It is not even
clearly averred that they knew or ought to have known that she was the victim
of bullying and/or sexual innuendo, and in my view the pursuit of an
investigation - even on a "case to answer" basis - proves nothing as
to the state of the defenders' knowledge regarding the pursuer's state of
health. Even if relevant averments of
knowledge or foreseeability had been made in these areas, I would still have
held the alleged duties in condescendence 6 to be irrelevant and seriously
lacking in specification. There is no
indication as to how often the pursuer expected to be informed of progress with
the investigation of her complaints, nor as to when or why she should have been
assured of her employers' good faith, nor as to the "reasonable" timescale
within which her complaints were to be investigated and resolved. In order to establish liability in a case
like this, it is well settled that a claimant must do more than show a causal
link between psychiatric illness and stress at work: what is required is a
causal link between that condition and the employers' alleged breaches of
duty. In the present case, I can see no
basis on which the existence of any such causal link could properly be
inferred.
[8] For
these reasons, I conclude that the direct case which the pursuer pleads against
her employers at common law must be dismissed, and to that end I shall exclude
from probation (a) the averments in condescendence 6 from "the Scottish Prison
Service" at 15A to "another prison" at 15D and (b) in the pursuer's first
plea-in-law the words "having breached their duties of care to the pursuer
and". For completeness, I should add
that I am not impressed with the supposed public policy considerations which,
according to counsel for the defenders, would serve as a complete bar against
any claim regarding inadequate investigation of work-related complaints. It may be that important public policy
considerations arise in relation to the investigation of alleged crime by the
police, but even there - in a civil claim brought by a police officer - the
House of Lords allowed similar allegations to go to trial in an employment
context:- cf Waters, supra, esp. per Lord Slynn of Hadley at page 1613. A
fortiori it is hard to see how public policy considerations could
effectively bar civil proceedings, in an employment context, against the prison
service.
Section 8 of the Protection from Harassment Act 1997
[9] The issues here are, I think,
relatively straightforward. The
pursuer's position before me, as challenged by the defenders on relevancy
grounds, was that the offending course of conduct narrated on Record fell
within the scope of the definition of "harassment" in section 8(1) of the
Act; that by virtue of the express
provisions of section 8(6) damages were recoverable for mere anxiety and
distress, contrary to the position in cases based on negligence at common
law; that damages for psychiatric
illness beyond that were also recoverable, there being no logical reason to
imply any restriction to less serious harm;
and that vicarious liability could properly be asserted against the
defenders for the conduct of the pursuer's fellow-officers on the principles
discussed in cases such as Majrowski
v Guy's and St Thomas's NHS Trust 2006
3 WLR 125 and Lister v Hesley Hall Ltd 2002 1 AC
215. At the very least, it was said, the
pursuer's statutory claim could not be ruled out at this stage as a matter of
relevancy, and a proof before answer should therefore be allowed. In my judgement there is force in all of
these contentions, and I am not persuaded that the defenders' attack on their relevancy
and specification warrants dismissal of the statutory claim at this stage.
[10] For the defenders it was argued, under reference to certain
observations by Lord Nicholls of Birkenhead in Majrowski, that only criminal conduct
could constitute harassment for present purposes. At first sight a passage in his Lordship's
speech at paragraph [30] might possibly convey such an impression, but in
my opinion any such impression would be unjustified. In the provisions of the Act specific to England
and Wales,
sections 1 and 2 provide inter
alia as follows:
"1(1) A person must not pursue a course of
conduct -
(a) which amounts to harassment of another,
and
(b) which he knows or ought
to know amounts to harassment of the other .....
2(1) A person who pursues a course of conduct
in breach of section 1 is guilty of an offence ....."
Criminality is thus explicitly a consequence, rather than a prerequisite,
of civil harassment under section 1(1).
For Scottish purposes, in any event, section 8 contains no
equivalent provision, Parliament (judging by Hansard) having apparently taken the view that the criminal law of Scotland
was already adequate to cover such situations as might arise. Since 1997, moreover, a number of reported
cases including Majrowski have been
allowed to go to inquiry without the conduct concerned having been criminal in
nature. As it respectfully seems to me,
the observations by Lord Nicholls on which reliance was placed were truly
directed to a different point altogether, namely the obvious need for caution
in branding everyday conduct "harassment" where criminal consequences would (in
England and Wales at least) automatically follow. Similar caution has recently been urged in
other actions in pursuit of damages for non-physical harm, notably by Hale LJ
(as she then was) in Hatton, as
subsequently approved by the House of Lords in Barber; by Lord Hutton
in Waters at page 1616; and by Lord Hoffman at
paragraph [46] of his speech in Wainwright
v Home Office 2003
4 AER 969. In a Scottish
context, similar observations were made by Lord Reed in Ward v Scotrail Railways Ltd 1999 SC 255, at pages 259
and 262.
[11] The defenders also sought to persuade me that, at this stage, I
could properly strike out the pursuer's assertion of vicarious liability on relevancy
grounds. The alleged offending conduct,
it was said, bore no relation to the perpetrators' duties in an employment
context, especially during the latter period when the main perpetrator, Jack,
was suspended from work while disciplinary proceedings against him were in
progress. In short, the pursuer's
complaint related to trade union matters in which the workplace was no more
than an incidental setting. In my
opinion, however, these contentions cannot be sustained at this stage. Where the activities of trade union officials
are concerned, they involve what counsel for the defenders fairly acknowledged
to be "quite delicate" and "quite finely balanced" policy issues, and I am
unable to conclude that, assuming proof of all her averments, the pursuer must
necessarily fail to bring herself within the ambit of the decisions in Majrowski and Lister. In the latter case
Lord Steyn, with whose reasoning Lords Hutton and Hobhouse agreed,
drew attention to the complex exercise with which the court is faced in a case
of this kind, and at paragraph [28] defined the relevant test as:
"...whether (an
employee's) torts were so closely connected with his employment that it would
be fair and just to hold the employers vicariously liable".
Here the alleged
offending conduct may, as the defenders submitted, have arisen following trade
union disagreements. For present
purposes, however, it is in my view significant that two of the alleged
perpetrators were actually officials of the union concerned and may therefore
(as a generality) be taken to have had a recognised status within the prison
service, an acknowledged responsibility for inter
alia the welfare of officers like the pursuer, and no doubt also an
entitlement to time off and other facilities for the performance of union
activities. Moreover the allegations are
of a concerted campaign of victimisation in the workplace to which the
pursuer's employers responded by inter alia
suspending Jack from duty pending disciplinary proceedings. In such circumstances I consider that it
would be going too far, too fast to conclude that, after proof, the pursuer
could not conceivably establish a close enough connection between the allegedly
offending conduct and the perpetrators' employment for the purposes of
vicarious liability. It is by no means
clear that the pursuer will succeed on this aspect of her case, but what
matters at the stage of relevancy is that I am unable to conclude with
certainty that she will fail. Given the
breadth of the test affirmed in Lister,
and followed in various circumstances since then (for example by
Lord Macphail in relation to a football tackle in Sharp v Highland &
Islands Fire Board 2005 CSOH 111), I do not consider that the possibility
of a finding of vicarious liability here can at this stage be excluded.
[12] Further, the defenders sought to argue that, while
section 8(6) of the Act permitted damages to be awarded for mere anxiety
and distress, it did not follow that damages for more serious psychiatric
illness could also be awarded under the Act.
Indeed, having regard to the well-established restriction of recovery at
common law to cases of recognised psychiatric illness, it would be unreasonable
to construe the Act as providing an overlapping remedy under which claimants could
effectively bypass the policy considerations which led to that
restriction. In my view, however, these
submissions are unsound and cannot be sustained. The terms of section 8(6) are inclusive
and non-exhaustive, and cannot fairly be read as setting some kind of statutory
maximum. On the defenders' hypothesis, moreover,
I think that it would be difficult, if not impossible, to draw any workable
dividing line between recoverable and non-recoverable damages. More generally, there does not seem to me to be
any warrant for grafting restrictive common law rules, applicable to cases
based on negligence, on to a free-standing statutory regime which in
section 8(6) controverts these rules in explicit terms. A further consideration here is that, as
discussed in the following section of this opinion, these restrictive common
law rules do not apply in cases founded, not on negligence, but on actual
intention to cause harm.
[13] For all of these reasons I am satisfied that the pursuer's case
under section 8 of the Protection from Harassment Act 1997 is
relevant to go to inquiry, and that it cannot at this stage be ruled out on
relevancy grounds.
Vicarious liability for intentional harm at common law
[14] Having allowed inquiry on the pursuer's assertion of vicarious
liability for harassment under the 1997 Act, I am immediately reluctant to
strike out this alternative ground of action which, in certain respects, may be
thought to raise similar issues. The
pursuer's position before me was that on her averments, if proved, one or more
fellow officers had acted with the deliberate intention of causing her
harm; that such harm had duly
ensued; and that in such circumstances
nothing more was required to establish delictual liability at common law. In particular, no averments of duty, or
breach of duty, were required where the deliberate infliction of harm was in
issue, nor was it necessary to aver foreseeability of any particular type or
degree of injury. On proof of actual
intent to cause harm, subject always to ordinary principles of remoteness, the
perpetrator would be liable in damages for whatever consequences might ensue. These propositions, it was said, were well
vouched by authority, and in particular by recent decisions of the House of Lords
in Hunter v Canary Wharf Ltd 1997 AC 655 and Wainwright, supra. In the
former case, Lord Hoffman said:
"I see no reason
why a tort of intention should be subject to the rule which excludes
compensation for mere distress, inconvenience, or discomfort in actions based
on negligence ... the policy considerations are quite different".
In the latter case, at
paragraphs [44] and [45], his Lordship expanded on that view in these
terms:
"[44] I do not resile from the proposition that
the policy considerations which limit the heads of recoverable damage in
negligence do not apply equally to torts of intention. If someone actually intends to cause harm by
a wrongful act and does so, there is ordinarily no reason why he should not
have to pay compensation. But I think
that if you adopt such a principle, you have to be very careful about what you
mean by intent ...
[45] If ... one is going to draw a
principled distinction which justifies abandoning the rule that damages for
mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a
way which he knew to be unjustifiable and either intended to cause harm or at
least acted without caring whether he caused harm or not ..."
[15] According to the pursuer the distinction drawn in these cases
was of critical significance for present purposes. In Wilkinson
v Downton 1897
2 QB 57, Ward, supra, Wong v Parkside Health NHS Trust 2003 3 AER 932, Green v D B Group Services (UK) Ltd 2006 IRLR 764, and indeed in Wainwright itself, only imputed
intention was in issue and no actual intent to harm was alleged or proved. In the present case, by contrast, the pursuer
did allege actual intent to harm on the part of Jack and others. In condescendence 4 a campaign of
victimisation, intimidation and harassment was alleged, which included (at
page 5D) direct threats that her life would be made hell if she ever
crossed a union picket line, and (at page 6A/B) subsequent incitement of
others "... that life should be made hell for the pursuer". Multiple false allegations of misconduct and
criminal activities then followed; the
pursuer's working environment was made intolerable; she was subsequently transferred to a
different prison; and in due course she
went off sick with stress in October 2001.
Depression and psychiatric injury were then diagnosed in
December 2002 and April 2005.
In the whole circumstances, it was said, all of the legal requirements
for a case of intentional injury were met, and in any event the court could not
at this stage say that this branch of the pursuer's case was necessarily bound
to fail.
[16] In opposing these contentions, the defenders' position was
essentially that the averments in question disclosed no actual intention to
cause the distress and psychiatric illness of which the pursuer
complained. In truth this was a case of
imputed intention only and, if that was right, it could not proceed without
relevant averments of breach of duty and, more importantly, of foreseeability
of the psychiatric illness which ultimately developed. As with the pursuer's case of direct fault against
the defenders, no relevant averments were made on these critical matters and
accordingly this aspect of her claim must also be dismissed.
[17] In my opinion the issue for determination at this stage is one
of fact and degree. On the authorities a
relevant and important distinction may be drawn between actual and merely
imputed intention to harm. In the former
case, issues of duty and foreseeability do not arise, and the offending party may
be held liable for the natural and direct consequences of his conduct. Conversely, in the latter case, the intention
to cause harm is only imputed on foreseeability grounds, and for policy reasons
the common law limits recovery of damages for non-physical injury to cases
where some recognised psychiatric illness is foreseeable at the time of the
conduct complained of. The critical
issue here is thus whether the pursuer's pleadings sufficiently disclose a case
of actual intention to harm, so as to relieve her of the necessity to aver and
prove foreseeability and breach of duty under normal common law rules.
[18] I have not found this an easy issue to resolve. The pursuer's case is not conspicuously well
pled, and her allegations against fellow-employees are not as clear and
specific as they might have been.
Furthermore she does not explicitly offer to prove actual intention to
cause mental upset, distress or psychiatric illness, and the legal aspect of
this branch of her case occupies only six lines at page 15D/E of the
Record. In the end of the day, however,
applying the well-settled test of relevancy laid down in Jamieson v Jamieson 1952
SC HL 44, I am not persuaded that if the pursuer were to prove all her
averments here she would necessarily be bound to fail. At
best for the defenders, I think that the challenged averments may be said to be
of doubtful relevancy, which of course falls short of what would be required to
justify dismissal of her claim at this stage.
Apart from the averred threats and incitement to make the pursuer's life
hell, it seems to me that the long duration, and extreme nature, of the
victimisation complained of may, after proof, be capable of yielding the
inference of actual intent to harm on which the pursuer seeks to found.
[19] As regards vicarious liability, the issues for determination
here are essentially no different from those which are summarised in
paragraph [11] above, and for the same reasons I do not consider that this
aspect of the pursuer's claim can be ruled out as irrelevant at the present
time.
Limitation
[20] The defenders' position here was straightforward. The summons had been served on them on 9 September 2004, and it was therefore
necessary to analyse the situation which existed three years earlier, namely on
9 September 2001. Under sections 17 and 18B of the Prescription
and Limitation (Scotland)
Act 1973, the primary date for the commencement of the triennium was the date when continuing acts or omissions, or
alleged harassment under the 1997 Act, ceased. Here, according to the defenders' counsel,
the last of the alleged conduct capable of amounting to bullying and harassment
occurred in May 2001. If that was
right, then the triennium had expired
some four months prior to the raising of this action. Admittedly, the pursuer made averments at
page 8 of a "new complaint" by Jack on or about 1 October 2001, followed by the averment that this was "part
of the same campaign of victimisation, intimidation and harassment as before". However, it was said, the nature of this new
complaint was so different from the earlier conduct alleged that no question of
continuity could arise. The allegations,
moreover, were seriously lacking in specification. It was not suggested that Jack's statement
regarding community charge default and consequent harassment was untrue, nor
that any access to the pursuer's file had been unauthorised. Furthermore, the averment of previous
"victimisation, intimidation and harassment" arguably referred, not to positive
averments of such conduct, but only to a quotation from a preliminary
discipline report which, in the end, was not upheld. In any event, since Jack was suspended from
duty at the material time, no vicarious liability within the triennium could be established against
the defenders.
[21] As regards section 19A of the 1973 Act, counsel referred me to
the case of Clark v McLean 1994 SC 410 and submitted, by
reference to the opinion of the court at page 413, that the pursuer here had
failed to make any of the requisite averments to entitle the court to embark on
the exercise of its equitable discretion.
Esto the action was out of
time, there were no averments as to the circumstances in which that had
occurred. There were no averments of the
conduct of parties, nor of any prejudice which might affect either party depending
on the way in which the court's discretion might be exercised. In short, no issue under section 19A had been
relevantly raised in this case.
[22] In reply, counsel for the pursuer maintained that, at this
stage, it was impossible to hold that the action was time-barred. The pursuer offered to prove that the new
complaint in October 2001, whatever its intrinsic nature, was part of an
ongoing campaign of victimisation, intimidation and harassment, and on these
averments she was entitled to go to proof.
Moreover, the question whether the conduct averred was different in kind
from what had gone before, and the issue regarding vicarious liability, were matters
of fact and degree which could not be resolved by the court at this stage. Having adopted that position with reference
to section 18B of the Act, counsel for the pursuer did not seek to advance
any further submission relative to the application of section 19A.
[23] In my judgement the pursuer has averred no relevant basis for
her plea under section 19A of the 1973 Act.
As illustrated by cases like Clark it is well settled that, as a precondition of the
court embarking on any exercise of its equitable discretion, the pursuer must
aver at least a minimum basis on which that discretion might properly be
exercised. There would, in my view,
require to be some offer to prove the circumstances in which proceedings had
been raised out of time, together with averments of the respective conduct of
parties and of any prejudice which the pursuer might put forward in
justification of the court's discretion being exercised in her favour. Put simply, the pursuer has made no such
averments in this case, with the result that her purported reliance on section
19A of the Act must be regarded as irrelevant and excluded from probation
accordingly.
[24] That said, however, I am not persuaded that the defenders'
primary time-bar plea can be sustained at this point. For one thing, the pursuer's averments of a
new complaint within the triennium at
8A/C are in my view sufficiently relevant and specific to go to proof, and I am
certainly not in a position to hold that they self-evidently relate to conduct
different in kind from anything that had gone before, or that continued
harassment for the purposes of the 1997 Act is plainly not in issue. In any event, so far as the pursuer's remaining common law case
is concerned, section 17(2) of the Act allows proceedings to be commenced
within three years of the date when relevant injuries were sustained. There is no suggestion in condescendence 5
that any such injury was sustained prior to 9 September 2001.
Indeed, on the pursuer's pleadings, the diagnosis of post-traumatic
stress (as anxiety disorder) was not made until December 2002, and that of a
moderate depressive episode was not made until April 2005. Taking all these factors into account, I am
unable to hold that either of the live branches of this action is time-barred
at this stage.
[25] A question arises here as to whether a preliminary proof on
time-bar alone would be appropriate, or whether I should allow a proof at large
with all live pleas standing, as suggested by counsel for the pursuer. In my view there is a considerable overlap
between the matters on which evidence would respectively require to be led on
time-bar and on the merits, and I think that it would be undesirable to run the
risk of duplication in that context. On
balance, therefore, I consider that a proof at large, with all remaining pleas
standing, would be the preferable course in the circumstances of this case, and
I did not understand counsel for the defenders to suggest otherwise.
Disposal
[26] For all of these reasons, I shall exclude from probation
(a) the pursuer's averments in condescendence 6 from "The Scottish
Prison Service" at 15A to "another prison" at 15D, and (b) in
her first plea-in-law the words "having breached their duties of care to the
pursuer and". I shall also exclude from
probation the sentence beginning "Esto
the claim" in condescendence 7 at 17C/D, and in the same context I
shall repel the pursuer's third plea-in-law.
Quoad ultra I shall allow a
proof before answer with all remaining pleas standing.
[27] In disposing of the case in this way, I express no view as to
whether the pursuer will ultimately succeed in establishing liability against
the defenders on either of the two remaining branches of her case. My decision is simply that at this stage,
applying the well-established test of relevancy, it is not possible to hold
that either branch of the pursuer's averred case must necessarily fail after
proof. In this context I am in full
agreement with the judicial observations mentioned at paragraph [10] above,
to the effect that everyday upsets and incidents - even extending to rude,
boorish, abusive or offensive behaviour - should not too readily be held actionable,
either at common law or under the 1997 Act. In the present case, however, it seems to me
that the pursuer's averments reflect a persistent course of victimisation,
intimidation and harassment which, if proved, could properly be regarded as
falling into a different, and more serious, category altogether.
