Scottish Court of Session Decisions

Pursuer: H Campbell QC; Thompsons

Defender: I Davis; Ledingham Chalmers

9 December 2011

[1] In this action the pursuer seeks damages for personal injuries sustained as a result of alleged negligence and breach of statutory duty by the defender. The case called for discussion on the procedure roll on the defenders first plea in law, a plea of res judicata.

[2] In the present action the pursuer avers that she has been employed by the defenders in various capacities since about 1982. In about March 2003 she was appointed Depute Manager at Mitchell Street Residential Home, Airdrie. The said home was a 12 bedded children's home run by the defenders. She worked in that home until August 2006. Between March 2003 and August 2006 she alleges that she was submitted to a large number of unpleasant and upsetting incidents, caused by the violent and disruptive behaviour of the children in the home, all of which caused her anxiety and distress. She alleges that she had a number of periods of absence from work as a result of this behaviour and its effect upon her. Eventually in August 2006 she stopped work for a period of months during which time she was diagnosed as suffering from a "Generalised Anxiety Disorder". Following this she was seen by the defenders' occupational health department to whom she indicated that she wished to continue in her career. There were then a number of meetings which culminated in her being made an offer of a job with the defenders at Buchanan House in Glasgow from August 2007. The pursuer avers that she was keen to take up this job "but required conditions to be met before doing so, in order to safeguard her health." She then stipulated a number of terms relating to the conditions of her employment with all of which it is averred the defenders agreed to comply. The pursuer thereafter returned to work. It is averred that the defenders did not comply with the conditions that had been agreed and that as a result thereof the pursuer was exposed to further disruptive and violent behaviour perpetrated against her by the inmates at Buchanan House. Eventually she went off work in February 2008 and never returned. The pursuer raised an action against the defenders in April 2009 as a personal injuries action under Chapter 43 of the Rules of the Court of Session. Decree of absolvitor was granted in favour of the defenders in that action by interlocutor dated 23 December 2009. The current action was signeted on 21 July 2010 and subsequently served upon the defenders in August 2010.

[3] Against the foregoing background the defenders pled res judicata. In support of that plea the defenders first submitted that the parties to the present action are identical to the parties to the first action signeted in July 2010. The defender further submitted that the pursuer was aware of the facts and circumstances averred in the current action at the time of raising the previous action. It was submitted that there were no new material matters of fact which were not, or could not reasonably have been, known to the pursuer at the time of raising of the first action. The subject matter of the two actions was the same. Both actions involve psychological damage allegedly suffered by the pursuer during the course of her employment with the defenders as a result of violent attacks, overcrowding and lack of staffing in the care home where she worked. Both actions related to alleged failure on the part of the defenders to adequately protect employees. The first action was framed under the abbreviated pleadings of Chapter 43. It was accepted that the second action was more fully pled but that was irrelevant. The proper approach was to consider the characterisation of the case rather than mainly having regard to the formal pleadings. Both actions were based on fault at common law for failure to take steps to protect the pursuer from foreseeable harm. Both actions were within the same factual matrix. It was accepted that in the second action the pursuer included a statutory case in supplement to the original common law case. The statutory case was different in technical form but, statutory negligence was nonetheless negligence and inferred the same breach of duty which underlay the common law case pled in the first case. Having regard to these factors it was submitted that the media concludendi in both actions was the same.

[4] The principles upon which the plea of res judicata is said to be based were said to be properly and succinctly expressed by Lord Macphail in his work on Sheriff Court Practice (3^rd Edition paragraphs 2.104 - 2.109) in the following way:

"The rule may be stated thus: when a matter has been the subject of judicial determination pronounced in foro contentioso by a competent tribunal, that determination excludes any subsequent action in regard to the same matter between the same parties or their authors, and on the same grounds...For the plea to succeed, the five conditions referred to in the following paragraphs must be satisfied. If these conditions are satisfied, the plea may be elided only by a successful plea of res noviter veniens ad notitiam...

(1) The prior determination must have been made by a competent tribunal...

(2) The prior determination must have been pronounced in foro contentioso, without fraud or collusion. It is not, however, necessary that the action should have been fully litigated to make the decree pronounced decree in foro contentioso. ... a decree of absolvitor and a decree by default will support the plea.

(3) The subject matter of the two actions must be the same...

(4) The media concludiendi, or points in controversy between the parties, in the two actions must be the same...

(5) ...the parties to the second action must be identical with, or representative of, the parties to the first action, or have the same interest."

[5] Counsel for the defenders did not dispute the legal basis upon which the plea of res judicata was said to rest. Counsel explained that subsequent to commencement of the first action it came to be appreciated by those advising the pursuer that the test which required to be met to found liability of this sort as desiderated in Walker v Northumberland County Council [1995] 1 ALL ER 737 could not be met. For this reason the pursuer consented to decree of absolvitor being pronounced against her in respect of the first action. The second action was subsequently commenced this time with averments relating to the first period of employment when the pursuer was exposed to the allegedly harmful acts, that is between 2003 and 2006, and further averments now relating to the discussions and consequent agreement relative to her return to work in August 2007, and also how averments relating to the conditions of work following August 2007 and her subsequent permanent cessation of work in February 2008. Reformulation of the case in this way, it was said, met the requirements of a claim for damages of this sort as set forth in Walker (Supra). As a consequence of these additions, the case was submitted to be of a different nature and involved new material not present in the first action.

[6] There is no doubt as to the basis of the plea of res judicata in Scot's law. It is based upon considerations of public policy and seeks to prevent duplication or repetition of litigation by the same parties about the same issues. The five conditions required to found the plea are set forth in the passage quoted from Lord Macphail's on Sheriff Court Practice. These are (1) that there is s prior determination by a court of competent jurisdiction, (2) that the decree and the prior action is pronounced in foro contencioso without fraud or collusion, (3) that the subject matter of the two actions must be the same (4) that the media concludendi in the two actions must be the same, and (5) the parties to the second action must be the same as or representative of the parties to the earlier action, or have the same interest. In the present case it is not disputed that all of these requirements are satisfied save for the fourth condition. It is the fourth of these conditions, whether the media concludendi of the actions are the same, which is a matter of contention between the parties.

[7] The issue of what constitutes the media concludendi in an action, and the authorities relevant thereto, has recently been helpfully reviewed and discussed by Lord Hodge in Primary Health Care Centres (Broadford) Limited v Ravangave [2009] SLT 673 as follows:

"What are the media concludendi? In Edinburgh and District Water Trustees v Clippings Oil Company Limited ..., the Lord President (Lord Robertson) acknowledged the difficulty in defining 'this abstract expression' and in drawing a line between grounds of action and arguments. Lord Macphail in the book mentioned above equated the media concludendi with points in controversy between the parties. Lord Trayner in Latin Maxims and Phrases defined them as the grounds of action - those allegations are grounds on which the pursuer seeks to have decree pronounced - and Paul Beaumont in his article on the plea in 1985 SLT(News) 133, treated them as the grounds of claim or issues. But the precise meaning of the phrase and the difference between it and the subject matter of the action may not matter. In Grahame the Lord President (at p.387) opined that that the Boyd and Forrest appeal had corrected a tendency in earlier Scottish cases to concentrate too narrowly on the precise terms of the conclusions or of the pleas in law and that judges were 'directed to look at the essence of the matter rather than the technical form, and simply to enquire - What was litigated and what was decided?'."

[8] If the matter is approached in that manner, that is to look at the "essence of the matter", then it is in my view plain that what is being litigated in the second action is the same as that which was litigated in the first action, namely a claim for damages for a psychological injury allegedly sustained as a result of the actions or omissions of the defenders during the course of the pursuer's employment. In attempting to look for differences between the two actions the first point to observe is, as counsel for the pursuer accepted, that the insertion of a statutory case in the second action is of no materiality. The breach of statutory duty is based on negligence and the same negligent acts as is the common law case. It follows that if a difference in the media concludendi between the first and second action is to be found it rests upon the new averments relating to the pursuer's discussions with her employer prior to her return to work in August 2007 and the conditions that she was subjected to in that employment following such return and her eventual cessation of employment in February 2008.

[9] If the averments relating to the discussions prior to return to work and the work conditions following return to work employment in the period between August 2007 and February 2008 represented new matter previously outwith the knowledge of the pursuer it might be relatively easy to conclude that there was a new basis for action, new media concludendi. This conclusion is, in my view, more difficult to reach when consideration is given to the fact that these matters were all within the pursuers, and for that matter that matter the defenders, knowledge prior to decree of absolvitor being pronounced in the first case. As was observed by counsel for the defender, the first case was disposed of in that manner whilst the case was still at the adjustment stage. There was no reason suggested to me as to why the additional material could not have been pled in the first action. Moreover, pleading of the additional material would presumably have surmounted the difficulty the action faced caused by the approach to such cases, which is accepted as necessary, following Walker (Supra). Had this matter not been within the pursuer's knowledge at the time the previous case was disposed of then the pursuer might have been able to plead res noviter veniens ad notitiam. That matter is dealt with by Lord Macphail (Sheriff Court Practice paragraph 2.110) as follows:

"A party is not debarred by the plea of res judicata from again presenting a case before the courts founded upon new and material matters of fact (relevant to support the crave of the initial writ) or new and material evidence (relevant to establish facts on which proof has already been led) which have come to his knowledge and of which he is able to prove that, through no fault of his, he was previously ignorant. ...Nothing can be res novitor that was within the power of the party to discover with ordinary care."

Plainly, the material relating to the circumstances between August 2006 and February 2008 were within the knowledge of the pursuer throughout the entire period when the first action was live.

[10] Having regard to all the foregoing I have reached the conclusion that the media concludendi in both actions is identical. I am accordingly of the view that all the requirements desiderated by Lord Macphial to found a plea of res judicata are present in this case. I shall accordingly uphold the defenders first plea in law and pronounce decree of absolvitor.