Scottish Court of Session Decisions

Pursuer: Comiskey; Simpson & Marwick, WS

Defenders: Sheldon; Brodies, LLP

20 June 2008

Introduction

[1] Between 1990 and 2004 the pursuer was employed as a prison officer in the Scottish Prison Service, an executive agency of the defenders. He retired from work on medical grounds, which were psychiatric in nature, at the age of 40. In this action for damages, he claims that his medical problems were caused by the fault and negligence of the defenders. The pursuer founds upon a history of psychological problems at work. He also points to events involving a prisoner named Francis Kelly. In July 2003, Kelly made threats against the pursuer. The following month, he witnessed the aftermath of an assault by Kelly on another prisoner. The pursuer states that it was these events that led him to retire from his post.

[2] At debate, counsel for the defenders maintained that the pursuer's claim was irrelevant and should be dismissed. Counsel for the pursuer invited me to send the case to a proof before answer, leaving all pleas standing. During the course of the debate, however, Miss Comiskey made two separate motions to amend the pursuer's pleadings. Those motions were opposed and I refused them both for reasons which I shall outline later in this Opinion. I shall anticipate my conclusion by stating that I took the view that the defenders' arguments were well founded and I dismissed the action.

[3] The facts upon which the pursuer relies can be divided into three broad chapters: (a) his period working at Shotts Prison; (b) his employment at Barlinnie Prison; and (c) his experiences with Kelly.

[4] The pursuer was employed as a Prison Officer at Shotts Prison from 1990 to 1995. For about the last eighteen months of his period there, he worked in E Hall. It was a "lock down" hall for the prison's most violent prisoners. Staff members, including the pursuer, were repeatedly exposed to assaults (both verbal and physical), dirty protests and hostage taking.

Barlinnie Prison

[5] When he transferred to Barlinnie Prison in 1995, the pursuer began by working in E Hall, which was the old "Special Unit". It had been converted to hold six prisoners from Peterhead, who had been deemed to be the worst prisoners in the Scottish penal system. From late 1996 until his retirement in August 2004, the pursuer worked in A Hall.

[6] In 1998, the pursuer was off work for about six months as a result of a fracture to his hand following an assault by a prisoner. Between July 1999 and May 2000, he was absent from work as a result of stress. From about March 2000, he began receiving medical treatment for his condition. He attended his general practitioner, together with a clinical psychologist and a consultant psychiatrist. His application for extended sickness benefit was initially refused by the defenders. In December 2000, however, they allowed an appeal. They accepted that the pursuer had psychological problems stemming from his experiences at work, including the violence to which he had been exposed between 1993 and 1996. Accordingly, he received extended sickness benefit for the period of about ten months that he was off work. When the pursuer returned to work on 22 May 2000, he was placed on duties with no or limited prisoner contact. He was off work again for about seven weeks between May and July 2001 for an operation to remove a benign tumour.

[7] In July 2001, the defenders were informed that the pursuer continued to have psychological problems, which might lead him to act inappropriately at work. They were also told that although anger management counselling might assist him in some areas of his life, it was unlikely to assist him with regard to prisoner contact. In October 2001, the Occupational Health Department advised the defenders that if it was operationally possible, the pursuer should be permanently placed in a job that did not involve direct prisoner contact.

[8] On 18 January 2002, the pursuer left work early to attend a medical appointment. Later that day, the Human Resources Department left a message on his home telephone enquiring why he was not at work. On hearing the message, his wife questioned his fidelity. That placed a great deal of strain on the marriage, which was already under pressure due to his health problems. The pursuer was very angry about the phone call and made a formal complaint against the Human Resources Department. Whilst awaiting the outcome of this complaint, his anger increased and he made threats to attack his Line Manager. Acting on the recommendation of the pursuer's general practitioner, the defenders decided that he should not return to duty until he was medically cleared to do so. He was absent from work from about 24 January 2002 until 5 August 2002. His application for extended sickness benefit for that period was refused.

[9] In April and May 2002, a number of further medical reports indicated that the pursuer was fit to return to work, subject to certain conditions being fulfilled. The Occupational Health physician stated that the pursuer seemed to have made "a quite magnificent recovery from his stress related illness". The psychologist confirmed the improvement, but queried whether the underlying psychological condition was permanent. He referred to the adverse effect of prisoner contact upon the pursuer in the past. The psychologist suggested a staged return to work, with a mentor to offer support as the pursuer's duties increased. He added that if increasing stress became a problem after such a return, a referral to psychological services should be considered a priority. On 27 May 2002, the pursuer's general practitioner confirmed that in her view he had improved dramatically. She supported the suggestion of a staged return to work, subject to supervision and reassessment.

[10] On his return to work on 5 August 2002, the pursuer was allocated a role that did not involve direct prisoner contact. During his first week back, the defenders issued him with an oral warning regarding his absences in the preceding six months. In his pleadings, the pursuer goes on to aver that by 3 September 2002 the defenders were aware (i) that they had experienced difficulties in managing his day-to-day structured return to work; (ii) that he appeared to have found it very difficult to adapt to his return to work; and (iii) that he had openly criticised the role, questioned the content of the programme and at times displayed challenging behaviour.

[11] In the autumn of 2002, there were further medical reports about the pursuer. On 17 September, the Occupational Health physician assessed the pursuer as being angry and agitated, but did not find him to have any significant signs of illness. On 1 November, the treating psychiatrist advised the defenders that the pursuer showed considerable improvement in his mood and demeanour compared to May 2002. The pursuer had reported to him that he was happy to be back at work, and believed that he was competently performing his duties. The psychiatrist advised the defenders that a return to full time duties should not be prevented solely because of any difficulty between the pursuer and another member of staff. On 11 November 2002, the Occupational Health physician considered that the pursuer was fully fit for a return to duties. He did so knowing of the pursuer's formal complaint against the Human Resources Department and his potential unwillingness to raise or identify any problems with it.

[12] On 11 November 2002, the pursuer returned to his normal duties with direct prisoner contact. By the end of the month, he had returned to work in A Hall. His supervisor, Peter Christie, was appointed his mentor at work. The pursuer was absent from work for the whole of March 2003 due to asthma. On 27 June 2003, he received an oral warning from the defenders regarding his absences. On 3 July 2003 the pursuer was placed under police investigation regarding an accusation of assault made by a prisoner called Neil Munro. The defenders were aware of the complaint and the investigation. On 6 July 2003, the pursuer was informed that his complaint against the Human Resources Department had been unsuccessful.

[13] In 2003, Francis Kelly was a prisoner at Barlinnie. The pursuer first came across him when he escorted him to the Segregation Unit, apparently without incident. On 31 July, a prison officer prepared an Intelligence Report concerning Kelly for the defenders. It stated that twice that month, Kelly had made threats against staff. He stated that he would follow home any member of staff who had crossed him. He said that he would break into their cars, place a quantity of drugs inside and alert the police. Kelly also threatened on his release to contact a tabloid newspaper and make allegations against such staff. Kelly expressly mentioned the pursuer, who was told about the threats and advised to contact the police by his Security Line Manager.

[14] On 8 August 2003, a case conference was held to discuss Kelly's possible move from the Segregation Unit. It was chaired by the Operations Manager. The A Hall First Line Manager and Kelly himself were also present. During the conference, Kelly indicated that he was unwilling to go to either A Hall or B Hall. He stated that he had issues with the staff in both halls. The threats made by him against the pursuer were not, however, discussed. Kelly expressed a wish to spend the rest of his sentence in the Segregation Unit. Subsequently, he changed his mind and requested a move to A Hall. This was not communicated to the A Hall First Line Manager. He had understood at the end of the conference that Kelly would not return to A Hall and had not sanctioned it. On 13 August 2003, the Manager of the Segregation Unit telephoned a prison officer asking him to return Kelly to A Hall. Shortly thereafter, Kelly returned to A Hall.

[15] The pursuer had understood that Kelly would serve the remainder of his sentence in the Segregation Unit. When he learned of Kelly's return to A Hall, the pursuer complained to his supervisor. He indicated that Kelly's return to A Hall was inappropriate in light of the threats that had been made against him. He was informed that nothing could be done about the situation. Within about fifteen minutes of his return to A Hall, Kelly assaulted another prisoner. In response to the staff alarm, the pursuer went to the scene of the assault straightaway. On arrival, he found Kelly being restrained by other officers. Kelly was then returned to the Segregation Unit. Following the assault, Kelly made a number of threats to Supervisors and Governors, although it is not averred that any of these threats concerned the pursuer.

[16] Subsequently, the pursuer struggled to cope at work. The presence of Kelly in A Hall caused him considerable stress and anxiety. He feared that his personal safety had been put at risk. He became increasingly anxious at the thought that he could have been the subject of an assault. He had two meetings with his union representative, Mr Cassels, to discuss his concerns. They met on 21 August and 1 September 2003. At the second meeting, the pursuer was extremely agitated, angry and aggressive. His behaviour caused Mr Cassels to believe that he was on the verge of a breakdown. Mr Cassels informed the defenders that he had concerns not only for the pursuer's own wellbeing, but also for that of others. By agreement the pursuer stayed off work until an appointment with his GP on 8 September 2003. On that date the pursuer was signed off sick. He has been unable to work since then. On 23 April 2004 the Director of Occupation Health Services certified that the pursuer's absence from work from 5 September 2003 as being due to anxiety mainly and directly attributable to the events surrounding Kelly and the nature of the duty undertaken by the pursuer. Consequently the defenders granted the pursuer extended sickness benefit from 5 September 2003. He retired on medical grounds in August 2004.

[17] Both parties relied principally on the summary of propositions to be found in the judgment of the Court of Appeal in the case of Sutherland v Hatton EWCA Civ 76; [2002] ICR 613:

"1. There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do ... The ordinary principles of employer's liability apply ...

2. The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable ... this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) ...

3. Foreseeability depends upon what the employee knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large ... An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability ....

4. The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health ...

5. Factors likely to be relevant in answering the threshold question include:

(a) The nature and extent of the work done by the employee ... Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level for sickness or absenteeism in the same job or the same department?

(b) Signs from the employee of impending harm to health ... Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

6. The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers ...

7. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it ...

8. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk ...

9. The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties ...

10. An employer can only reasonable be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this ...

11. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty ...

12. If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job ...

13. In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care ...

14. The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm ...

15. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment ...

16. The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event ...

Defenders' Submissions

[18] The primary submissions made by counsel for the defenders were that on the pursuer's averments: (a) the harm which occurred was not reasonable foreseeable; and (b) there was a failure to specify what the defenders ought to have done to avoid causing loss. He also submitted that it was not fair, just and reasonable to impose a duty of care and that the appropriate standard of any such duty would be that applicable to cases of professional negligence.

[20] Counsel submitted that although the defenders knew that the pursuer had had difficulties in his career, they were also entitled in large measure to discount them. That was because the defenders were entitled to assume that he was up to the normal pressures of the job (Hatton para 29). They had received medical advice that he was fit to carry out his duties. Further, the pursuer had undertaken his duties without difficulty in the period prior to the incident. Those duties included daily contact with prisoners. There was no sign that the pursuer might have an adverse reaction simply by seeing Kelly. Accordingly, the indications were not so plain as to make the defenders realise they had to do something to prevent the pursuer going over the edge (Hatton paras 30 and 31). They had not fallen below the standard to be properly expected of a reasonable and prudent employer (Barber v Somerset County Council [2004] 1WLR 1089 per Lord Walker of Gestingthorpe at para 65).

[21] Counsel emphasised that the incident itself was an unusual trigger event. The pursuer had only come upon the scene after the assault had occurred. Counsel suggested that his response came "out of the blue". It followed that the injury which he sustained was not reasonable foreseeable. Counsel referred to propositions (3), (5), (6) and (7) in Hatton.

[22] Counsel submitted that there was no adequate specification of what the defenders ought to have done to avoid a breach of duty. On the pursuer's own averments, Kelly was a difficult and disruptive prisoner. Accordingly, it was a problem to place him anywhere within the prison. It was not, however, pled that the decision to transfer Kelly to A Hall was unreasonable. Instead the pursuer maintained that it was the defenders' duty:

[23] Counsel for the defenders contended that in order to be relevant, the pursuer would have to aver (a) that a proposed course of action was reasonable and practicable; (b) that it could have been accomplished within the relevant time scale; and (c) that it would have prevented the pursuer's injury taking place.

[24] Counsel contended that a duty to consider and nothing more had no content. Even if the injury was reasonably foreseeable, it was necessary to set out the steps that the defenders ought to have taken to prevent the injury (Barber paras 18 to 20 per Lord Rodger of Earlsferry). Further, Counsel argued that if the pursuer was so close to the edge, then it is hard to see how any changes would have altered the course of events. Placing him on other duties elsewhere in the prison service, with his underlying problems might have led to the same result.

[25] Counsel referred to Melville v the Home Office (a case reported within Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6, [2005] ICR 782, para 126f). Mr Melville was a prison health care officer, whose duties included recovery of the bodies of prisoners who had committed suicide. Since he started work in 1981 he had attended 8 such suicides, the last of which was on 4 May 1998. On that occasion he had helped to cut down the body, remove a ligature and attempt revival. Subsequently, he developed a stress related illness and retired on the grounds of ill health early the following year at the age of 49. Counsel said that the distinguishing feature in Melville was that the Home Office recognised that witnessing a suicide was a traumatic event. It had procedures in place for providing support to such persons. In those circumstances, it was held that it plainly did foresee that Mr Melville might suffer psychiatric injury by being exposed to suicides. That could be contrasted with the incident in the present case, which could not be classed as particularly traumatic.

[26] Counsel also drew attention to a number of specific averments made by the defenders regarding the steps they had taken in 2002 in relation to the pursuer's proposed return to work:

[27] Counsel also argued that if the pursuer had pled a relevant duty of care, nonetheless it would not be fair, just and reasonable to impose such a duty on the defenders (Gibson v Orr 1999 SC 420 Lord Hamilton pp 436-7). He said that prison authorities have various duties toward prisoners, including those placed in segregation. He argued that there were strong policy reasons which militated against imposing a duty on the defenders to place a prisoner in a particular place within the prison. To do so would concede to prisoners a degree of control over their placement within the prison. As a second alternative argument, counsel submitted that the pursuer had failed to aver that the decision to transfer Kelly was not one which any ordinarily competent prison authority, acting with ordinary skill and care, would have taken. Accordingly, there were no relevant averments as to the appropriate standard of care.

Pursuer's Submissions
Leave to Amend

[28] Counsel for the pursuer began her submission toward the end of the first day of the debate. At the commencement of the second day, she sought to leave to amend. She conceded that there required to be a greater degree of specification regarding the duties of care. Counsel for the defenders opposed the motion. He argued that there was a complete lack of specification as to the nature of the amendment that was proposed. The pursuer had failed to give any indication of how the points made on behalf of the defenders would be met. No draft Minute of Amendment had been tendered. Further, the motion was made in the middle of a Procedure Roll discussion. He pointed out that an earlier diet of debate fixed for June 2007 had been discharged as a result of a Minute of Amendment lodged by the pursuer. The earlier Minute was 19 pages long and had only been allowed under opposition. Counsel for the defenders stressed that his Note of Arguments had been lodged in March 2007. Accordingly, the pursuer had been given ample opportunity to respond to the points raised in advance of this hearing.

[29] In the exercise of my discretion, I refused the pursuer's motion. In my view, the grounds of opposition advanced on behalf of the defenders were well founded. The action was signetted in February 2006 and the pursuer had been aware of the defenders' legal arguments for over a year. He had already significantly revised his written case. Against that background and in the absence of specification as to the nature of the amendment, I decided that it was not in the interests of justice to grant further leave to amend.

[30] Subsequently, counsel for the pursuer made a further motion at the bar seeking leave to amend Article 7 of the Condescendence (i) by deleting "properly considering" at page 35D of the closed record and substituting "using"; and (ii) by deleting "considering the feasibility of" at page 35E. That motion was also opposed. In my view, counsel for the pursuer was in essence inviting me to revisit a decision that I had already made. Further, the proposed amendment did not meet all of the points made on behalf of the defenders. In those circumstances, I also refused that motion.

[31] Counsel for the pursuer submitted that it was reasonably foreseeable to the defenders that the pursuer might suffer harm, if he became involved with Kelly on A Hall. She relied on a number of factors in advancing that proposition. First, there was the pursuer's history of psychological difficulties in his employment. In the past, he had suffered from a generalised anxiety disorder and the defenders ought to have known that he was at risk of another episode. Secondly, they had received medical advice that the pursuer should be monitored on his return to work in 2002. Thirdly, direct threats of harm had been made against him by Kelly. Those threats were deemed sufficiently serious for his supervisor to advise him to contact the police. Fourthly, counsel submitted that it was only by chance that the pursuer was not one of the officers involved in restraining Kelly. Against that background, the defenders should have realised there were clear risks that the pursuer might not cope. She founded on Hatton propositions (3) and (5) and Melville.

[32] Counsel accepted that the pursuer was keen to return to work in 2002, but stressed that was only on the basis that he would require to be monitored. She submitted that Kelly was known to be a violent and aggressive prisoner. Given that he had made direct threats against the pursuer, it was incumbent upon the defenders to discuss the pursuer's position and minimise any risks to him. Their options were: (a) to place Kelly in B Hall; (b) to leave him in the Segregation Unit; or (c) to examine the practicability of using the pursuer elsewhere for a few weeks. This was not done (Hatton propositions (8) and (10)). Counsel also submitted that the pursuer did not have to establish that the breach of duty caused the injury. It was enough for an employee to show that the breach made a material contribution to his ill health (Hatton para 35).

[33] Counsel for the pursuer made no detailed submissions in respect of these arguments. That may be because they had not been pressed with force by counsel for the defenders.

[34] This is an unusual "stress at work" case for two reasons. First, it does not involve any question of work overload, which is a typical feature of such cases. Secondly, the actual event which led to the pursuer's early retirement was not one which on its face was obviously traumatic.

[35] On the question of the defender's knowledge, it is plain that they knew that the pursuer had a history of problems associated with stress at work. They were also aware that in July 2003 (a) he was subject to a police investigation; (b) he had been unsuccessful in his complaint against the Human Resources Department; and (c) Kelly had made threats against him.

[36] However, those factors must be set in context. The defenders had received medical advice indicating that the pursuer was fit to return to work in November 2002. They were entitled to assume that he was able to perform his duties. There was no evidence in the eight month period prior to the assault that he was suffering from any difficulty. In particular, there was no plain sign that he was suffering from stress. There had been no frequent or prolonged absences from work. The pursuer did not complain of problems, nor were there warnings from others, such as his mentor.

[37] The pursuer accepts that it is not unusual for prisoners to threaten prison staff, (19D-E of the Closed Record). So the fact that Kelly had made threats was not of itself something which should in my view have alerted the defenders to the likelihood of the pursuer being at risk of psychiatric injury. Further, there was nothing to put them on notice that the police investigation and the rejection of his complaint were causing him difficulty.

[38] Those considerations require to be coupled with the actual event which led to the pursuer's injury. In my view, the defenders could not reasonably foresee that he would react in the way he did. The assault by Kelly was on another prisoner. Although the pursuer came upon its aftermath, he did not witness the assault itself, nor did he participate in restraining Kelly.

[39] It follows in my view that the injury kind was not reasonably foreseeable and therefore the threshold question (Barber proposition (2)) falls to be answered in the negative.

[40] Lord Walker of Gestingthorpe has approved the Hatton propositions as "useful practical guidance" (Barber para 65). He continued, however, that "the best statement of general principle" remains that given by Swanwick J in Stokes v Guest, Keen & Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783:

[41] The pursuer avers that following his return to work in contact with prisoners in November 2002 and in particular in July and August 2003, it was the defenders' duty to obtain adequate assessment, assistance and guidance on how the pursuer was coping in the workplace. The information sought should have covered two matters. First, the risk of his suffering harm to his psychiatric health. Secondly, what steps they might reasonable take to avoid or in any event minimise the risk

[42] In my view, the use of the phrase "properly considering" presented a real difficulty for the pursuer. In order to be relevant, the pleadings require to say that after such consideration (a) the defenders would have adopted a particular course of action; and (b) that course of action would have made a difference. Otherwise the duty has no content, because the outcome might have been exactly the same. The defenders could have decided to transfer Kelly to A Hall and not altered the pursuer's duties, without being in breach of duty.

[43] The pursuer places reliance on a policy document issued by the defenders entitled "Goal 2". It states that

[44] There is also the question of what effect the proposed arrangements, if implemented, would have had on the pursuer. On the pursuer's own account, it appears that he was likely to sustain psychiatric injury simply by seeing Kelly anywhere in the prison. No case is made, however, that the defenders required to set up some cordon sanitaire to prevent the two men from coming into any form of contact at all. Given

[45] Accordingly, I held that the duties pled by the pursuer are irrelevant.

[46] Both these submissions were made on an esto basis. Standing the view I took in relation to the first two grounds of challenge and having regard to the lack of discussion about this matter at debate, I declined to form any final view on these issues.

[47] In light of the above, I sustained the defenders' first plea-in-law and dismissed the action.