Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH NUMBER86
A2250/00	OPINION OF LORD BRODIE in the cause EDWARD PRATT (ASSISTED PERSON) Pursuer; against THE SCOTTISH MINISTERS Defenders: ___________

Pursuer: Summers, QC, Olson; Drummond Miller LLP

Defenders: Milligan, QC, Sheldon; Dundas & Wilson, CS

17 May 2011

Introduction
[1] The pursuer was born on 31 December 1962. In 1991 he joined the Prison Service in England having previously served in the Army. In 1995 he transferred to the Scottish Prison Service ("the SPS"). On 3 August 1997 at about 3.30pm he was working in the course of his employment as a prison officer in HM Prison Barlinnie. A fight broke out in the recreation room in A Hall between a man named Collins and a fellow prisoner. Collins was injured and was bleeding from the face. The pursuer intervened in order to break up the fight. As he did so, Collins shook his head. A sufficient quantity of Collins's blood entered the pursuer's mouth for the pursuer to taste it. The pursuer believed that he might have swallowed some of this blood. He said as much to a fellow officer, a Mr Gibb. Gibb said, referring to Collins, "He is a junkie, I would get myself checked if I were you". From that the pursuer inferred that Collins was an intravenous drug user and therefore quite probably infected with Hepatitis C, the HIV virus or AIDS.. The pursuer became immediately fearful that he might contract one of these diseases by reason of having ingested Collins's blood and that in consequence that he would die. There is no reason to believe that the pursuer has in fact been infected by reason of contact with Collins's blood. Indeed, blood tests had negatived the presence of any infection. Nevertheless, the pursuer's fears have remained. It is his contention that consequently he became clinically anxious and depressed with the result that he was unfit for work. He was granted ill-health retirement from the SPS in January 2001.

[2] In this action the pursuer sues the Scottish Ministers as responsible for the SPS by reason of its failure to provide early therapeutic intervention by way of counselling in order to alleviate his fears and provide him with emotional support and so prevent the development of psychiatric illness. It is averred that such support should have involved a group of officers referred to as the Barlinnie Care Team. Damages are claimed in the sum of £600,000.

[3] The action came before me for proof on 30 November 2010. The pursuer was represented by Mr Summers, QC and the Mr Olson, Advocate. Mr Milligan, QC and Mr Sheldon, Advocate, appeared for the defenders. On 30 November and the six subsequent court days I heard the evidence of the following witnesses for the pursuer: the pursuer; Phyllis Kennedy, the pursuer's partner and mother of his son; Robert Mackie, a serving prison officer who had been the pursuer's shift supervisor on 3 August 1997; Donald Lamont, now retired but in 1997 the pursuer's unit manager; Dr Tim Rogers, consultant psychiatrist; Dr Colin Barrett, general medical practitioner; Francis O'Friel, retired prison governor; and Dr Alan Fraser, a consultant psychiatrist who was responsible for providing the pursuer with a course of cognitive behavioural therapy. The witnesses led on behalf of the defenders were ; Sharanne Cassidy or Findlay, a nurse who held the post clinical manager at Barlinnie in August 1991; Dr Christopher Freeman, consultant psychiatrist; and Alan Haughey, a former prison officer and member of the Barlinnie Care Team. Parties entered into four Joint Minutes of Admission. Among the matters which were agreed between the parties by way of Joint Minute were that on the assumption that the pursuer would have remained with the SPS as a prison officer until retiring at age 60, the pension rights that he will have lost by retiring on 12 January 2001 are as set out in the report by John Buchanan, actuary, dated 4 October 2010 and that report is to be treated as the equivalent of Mr Buchanan's evidence; and that the report of Peter Davies, employment consultant, 6/10 of process and his Supplementary Comments be treated as the evidence of Mr Davies.

[4] On 10 and 13 December 2010 I was addressed on the evidence by Mr Summers, QC on behalf of the pursuer and Mr Milligan, QC on behalf of the defenders. Both counsel had provided written submissions to which I gratefully refer. While I allude to aspects of these submissions in the course of this opinion I do not propose to set them out in full.

[5] My assessment of the witnesses as to fact is that all were trying, as best they could, to tell the truth, although they laboured under the difficulty of being asked about events which had occurred up to 13 years previously and which, at the time, had not in every case been of particular significance to them. Consequently, much use was made of medical and personnel records in order to allow the witnesses to adopt what appeared there as accounts of what had probably happened. As I have already indicated, I regarded the pursuer to be credible. I did not find him to be reliable, particularly when it came to the interpretation of events. As he explained in quite forthright terms, the pursuer considers that he has been badly treated by the SPS. He was, and continues to be, resentful about that and I see this as having coloured both his perception of events at the time they occurred and his recollection of these events when giving his evidence. As matters transpired it did not appear to me that parties were seriously at issue on what were the primary facts. More contentious was the expert evidence, and in particular the expert medical evidence. I shall require to look at that in a little detail.

[6] No order had been made restricting the issues to be determined at proof, but in the course of the hearing before me, parties agreed to restrict the issue for consideration to the question of liability, leaving the quantification of damages over for a future diet, should that be necessary.

The events of 3 August 1997
[7]

Immediately after his conversation with Mr Gibb, the pursuer became worried. He decided to go to the prison medical centre and said as much to his supervisor, Mr Mackie. There he was seen by the clinical manager, Sharanne Cassidy. He explained that he had: "swallowed blood from a junkie". He asked "what happens?" Although Miss Cassidy did not recollect saying this and did not regard it as the sort of thing she would have said, it was the pursuer's evidence that she told him: "Do not worry about it. There is a million to one chance that you will catch something" and that she explained "the virus would have died" travelling in the air from Collins to the pursuer. Miss Cassidy administered an antiseptic chlorhexidine mouthwash. It was likely that she advised the pursuer to contact his general practitioner. That was her standard practice. Her role in relation to prison staff was limited to giving first aid, and although the pursuer did not recollect the advice that he should go to his general practitioner, he did not dispute that that is what Miss Cassidy had said.

[8] Notwithstanding what he recollected Miss Cassidy as saying, the pursuer was not reassured. He spent the rest of the day spitting in order to clear any residue of blood from his mouth.

[9] After spending perhaps half an hour at the medical centre, the pursuer returned to A Hall for lock up at 5pm. He then went home to Rutherglen where he was living alone.

Events over the six months following 3 August 1997

[10] The pursuer came on shift on 4 August, a Monday, at 6.15am and at 9am arranged an appointment for a blood test at the Infectious Diseases Clinic at Ruchill Hospital (then the primary centre in Glasgow for treatment of HIV and AIDS and the best source of authoritative advice on the risk of infection with blood-borne diseases). The records of Ruchill indicate the pursuer attended there on Wednesday 6 August 1997. The pursuer was certain that his appointment was on Tuesday 5 August. Nothing turns on this. The pursuer attended at Ruchill on five further occasions: 1 September, 29 October and 30 October 1997; and 4 and 5 February 1998. In August 1997 Ruchill Hospital provided a confidential testing service for those concerned that they might have been exposed to or infected by blood-borne viruses including HIV and Hepatitis C. The service included pre and post-test discussion of provision of information about the nature of the potential risk of blood-borne virus infections; the severity of that risk in relation to the particular patient in light of the history obtained from the patient; the procedures for the screening of the patient for blood-borne infections; the potential results of the screening tests for these infections together with information on the meaning of the potential results; the implications for the patient of a positive result for each of the blood-borne infections referred to including the potential impact on the patient's physical and mental health and social and financial circumstances; the management, support and treatment available to the patient in the event of a positive test; the obtaining of informed consent to have the screening test carried out; and the making of arrangements to have blood samples taken and appointments for the results of blood tests to be given. The pursuer did not like attending Ruchill because it was "full of junkies" and wanted to spend as little time in the clinic as possible but it is likely that he was provided with or offered all the services available to those who attended the clinic by reason of their being concerned that they had been exposed to a blood-borne virus. It is likely that the pursuer would have been advised on the occasion of his first attendance at the clinic that there was a very low risk of him having been infected by contact with Collins's blood (assuming that Collins himself was infected, which is unknown).

[11] Testing established that the pursuer had been infected neither with HIV/AIDS or hepatitis but he had to wait for three months and six months respectively for these results (as I understood it, these being the relevant incubation periods). He received the hepatitis B and C results on 5 February 1998 and was discharged from the clinic . He had attended the previous day for blood to be taken. The clinical note relative to that attendance states that "He's still very angry with his employers and because of that feels there is no point in continuing with counselling."

Absence of a managerial response to the incident on 3 August 1997

[12] The pursuer's anger with the Scottish Prison Service was a theme that ran through the evidence in the case. As the pursuer put it, referring to his swallowing of Collins's blood, "To me what happened was a major incident". He considered Miss Cassidy's response to have been inadequate. In his view he should have been referred to an outside hospital whereas all she had provided him with was a mouthwash. He had expected someone "from management" to speak to him but there was "not a thing on the Monday" (4 August 1997). He attended at Mr Lamont's office the following day. Mr Lamont indicated that he knew what had happened and said that there should have been a procedure set up for such occurrences but otherwise the pursuer's impression was that Mr Lamont was not interested. The following week, on Monday 11 August 1997, the pursuer attended his general practitioner, Dr Barrett, and was certified unfit for work by reason of sickness for a period of two weeks. As at that date, the pursuer explained that he felt let down with the way he had been treated. He said that he couldn't cope with the idea that he had been abandoned by the SPS. His impression was that he was considered to be "a big fat prison officer" who would shrug the matter off whereas he did not. It was as if the SPS did not want to communicate with him and it seemed that the SPS (and indeed the whole world) was against him. He felt let down by the SPS. He was equally unimpressed by the Scottish Prison Officers Association. The SPS should have done more to help him. Following on 11 August 1997, the pursuer was to remain off work for more than 12 months until returning on 14 September 1998.

[13] The SPS personnel record for the pursuer, 7/8/55 of process notes a telephone call being made to the pursuer on 10 September 1997 during which he gave the information that he was "seeing a counsellor" and expressed his annoyance and anger at the failure of the SPS to be in touch. The note continues: "All assistance came from colleagues. To get visit tomorrow 11/9 from line management".

[14] On 11 September 1997 Mr Lamont and another prison officer, John McDonald, visited the pursuer at home with a view to encouraging his return to work. The visit lasted for 20 or 30 minutes but, according to the pursuer, he did not pay them attention. He considered the visit to be "just a ploy". They had taken a month to come to see him, which was a long time. When the pursuer attended him on 28 November 1997, his general practitioner, Dr Barrett, noted that the pursuer "remains angry" with the Prison Service. When it was put to him in cross-examination that he had been very angry with the SPS in relation to an earlier matter, a refusal of a request for a transfer to Perth Prison in 1996, the pursuer accepted that he had been angry but "not as angry with the Scottish Prison Service as I am now". It was the pursuer's position that the SPS had not supported him and that, as time went by, they wanted to brush the matter under the carpet. He did not trust the SPS.

[15] The pursuer expressed his views about the SPS in quite vehement terms, using, according to both Dr Rogers and Dr Freeman, strong and intemperate language. Mr Milligan described the pursuer's beliefs about the transmission of HIV and hepatitis as abnormal and as indicative of a pre-existing vulnerability which was unknown to his employer. These matters require to be given a context. The evidence left me in no doubt that the pursuer had been immediately and significantly frightened by what had occurred on the afternoon of 3 August 1997. Dr Rogers talked about a "morbid fear of HIV" having gripped the pursuer and that or the expression "phobia" which was also used in evidence, might be an appropriate way of describing the thoughts which, on his own account, came to dominate the pursuer's thinking. However, and on this I would agree with Dr Fraser, I do not see fear or even extreme fear as being an unreasonable reaction to the ingestion of the blood of someone who was believed to be an intravenous drug user. The pursuer's shift supervisor, Robert Mackie, who presented as a thoughtful witness, accepted that, as things stood in 1997, he would have been concerned by the risk of blood-borne infections had he found himself in the position of the pursuer. There was a general lack of knowledge that about HIV, AIDS and hepatitis at the relevant time and, in consequence, a "fair bit of paranoia". Mr Mackie recollected the pursuer's face being covered in blood immediately after the incident with Collins. After the pursuer's face had been cleaned up Mr Mackie had asked him how he was. He thought that the pursuer had had a "wee bit of a fright" and on hand-over the following day he spoke about the incident to the unit manager, Donald Lamont. While Mr Mackie could not remember the terms of his conversation with Mr Lamont, he would not have missed passing on the information that the pursuer had seemed agitated. Mr Mackie was the author of the accident report (production 7/7/377). He made the note: "No H & S recommendation apart from the lack of help or information from the health centre regarding blood contact". He accepted that from his perspective, no help was offered to the pursuer. He had been surprised that the pursuer had not been referred by the health centre to hospital. Immediately when the pursuer went off sick Mr Mackie tried to contact him by telephone on a number of occasions but was unsuccessful. Mr Mackie left A Hall for D Hall in August 1997 and after that had no further line management responsibility for the pursuer. It had occurred to him that the pursuer's fear over having ingested blood might be an issue.

[16] Mr Lamont came across as a rather less empathetic individual than Mr Mackie. He had retired from the SPS in 2000. He did not give the impression of having thought about the issues that he was being asked about during his evidence for some time and, indeed, while giving evidence he did not give the impression of thinking very hard about the questions he was being asked. He only vaguely remembered the pursuer. He had counter-signed the accident report form prepared by Mr Mackie but he accepted that it was possible that he had simply signed it off without giving the matter particular consideration. The accident report included space for comment by the health and safety coordinator. An entry was made in this space by Peter Brogan (who did not give evidence but who I understood to be the health and safety coordinator) headed "This is disappointing". The entry continued: "There is an ongoing review of the quality of support and guidance given in the event of blood spills and more positive counselling is expected to be the result." Mr Brogan's comment is dated 19 August 1997 as is Mr Lamont's counter-signature, under the words: "No real further comment to make other than what the shift supervisor has stated." Mr Lamont thought that he probably had seen Mr Brogan's comment. With hindsight he agreed with what Mr Brogan had written. Mr Lamont said he could understand it if the pursuer felt upset. He accepted that staff in the SPS were generally concerned about the risk of HIV infection if, for example, they were spat on by an infected prisoner. He accepted that the pursuer had not been provided with any help beyond what had been provided at the health centre, at Ruchill Hospital and from his general practitioner. He accepted that what had happened to the pursuer was an unusual event and that a prison officer might find events such as assault or inmate suicide to be traumatic. If he had been involved with the immediate aftermath of the incident Mr Lamont would have pointed the pursuer to the prison health centre. He would expect the pursuer then to be referred on to his general practitioner. Mr Lamont was aware of the existence of the Barlinnie Care Team. He described it as having been formed to dealt with the situations of hostage-taking or a riot. He would not necessarily have expected Mr Mackie to refer the pursuer to the Care Team (assuming Mr Mackie knew about its function) unless perhaps if he knew the pursuer was anxious. He was encouraged by Mr Milligan in cross-examination to explain his own lack of action by reason of his knowledge that the pursuer was being looked after at Ruchill Hospital, but I did not understand him to take up the opportunity that the cross-examiner was offering. I accordingly took from Mr Lamont's evidence that while he may not have appreciated that the pursuer was at risk from harm, whether physical or psychological, as a result of his exposure to Collins's blood, this was because he had not applied his mind to the question rather than that he did not regard it as foreseeable.

[17] Mr O'Friel has had a distinguished career in HM Prison Service for England and Wales. He retired in 1996. He was familiar with the concept of a care team to meet the need to do something for about serious incidents when staff needed to feel supported. He was "fairly certain" that a care team would be listed as part of the contingency plan for difficult incidents. When asked to consider the circumstances of the present case on the hypothesis that Barlinnie had not had a care team in August 1997, he identified a failure on the part of management to respond as he would have expected. Management should have got involved. There was a need to find out what had happened, to learn what the person involved had to say, to look at the options and to get advice, for example from HM Prison Service's psychologists. This was no more than common sense. It was the responsibility of the line manager; in the first instance this would be Mr Mackie. There was a need to speak to the pursuer on the day of the incident. Even if Mr Mackie did speak to the pursuer to ask him if he was ok that was a pretty weak response. The managerial response should have been more proactive. It was inactivity during the first month that he criticised. He was surprised how little management had been involved.

[18] I also understood Dr Freeman to be implicitly critical of the lack of a specifically managerial response to the events of 3 August 1997. When asked what would have been the response within the NHS to a similar incident occurring in 1997 he replied that in addition to referral to a specialist in infectious diseases, the line manager would have had to acknowledge that something had happened, to check that the employee had been given the appropriate advice and to ascertain when it was appropriate for the employee to return to work. When reminded that it was 6 November 1997 when the Human Resources Manager, Dawn Wardrop, first contacted the pursuer, Dr Freeman thought that "a long time after the event". However, while Dr Freeman considered that an acknowledgement by a line manager that something had happened was a proper response to an unusual incident, he emphasised that he did not regard this as a psychological intervention.

Later events
[19] Subsequent to 11 August 1997 the pursuer remained off work until 14 September 1998. During this period he was entitled to full pay until 9 August 1998. He went off work again on 29 December 1998. His general practitioner, Dr Barrett, noted on that date that the pursuer could not cope with work as he was "getting too frustrated". On 26 January 1999 the pursuer's general practitioner certified the pursuer as unfit for work by reason of depression. Notwithstanding an assessment by the Benefits Agency that the pursuer was fit for work as at 19 April 1999, he remained absent until returning to work on 1 September 1999. On 3 April 2000 the pursuer was transferred to HM Prison Perth. He went off work again on 7 May 2000. On 10 May 2000 his general practitioner noted that he "feels not coping at work" and that on 22 May 2000 the general practitioner made a diagnosis of Post Traumatic Stress Disorder. The pursuer remained absent from work until being granted ill-health retirement on 11 January 2001.

[20] The pursuer attended the Langside Priory Hospital at Glasgow on 9 March 1998 for a consultation with Dr Fraser with a view to Dr Fraser providing a report to the SPS. Langside Priory is a private facility. Dr Fraser reported to the pursuer's general practitioner on 31 March 1998 expressing his agreement with the diagnosis of PTSD, although the pursuer did not fulfil all the diagnostic criteria. Dr Fraser expressed the view that the major problem was the pursuer's continued anger with the Prison Service and his associated irritability. He recommended cognitive behavioural therapy. Between 17 July and 28 July 1998 the pursuer received treatment which included cognitive therapy and anger management at Langside Priory. The pursuer attended Langside Priory for further treatment on various dates in September 1998. On 22 September 1998 it was noted that he had met his therapeutic goals. He was discharged on 23 September 1998. These courses of treatment were paid for by the SPS.

[21] The pursuer appears to have acknowledged that the therapeutic programme at Langside Priory had been beneficial to him. He was also appreciative of his general practitioner, Dr Colin Barrett; "My g.p. was there for me; others were not there for me.". However, his anger at the SPS and its officials did not abate. He completed a "life history questionnaire" at Langside Priory on 20 August 1998. In it he identified his main problem as controlling his temper which was directed at the wrong people. He considered that his anger should be directed at SPS management. He identified the cause of his problem as lack of support from the SPS. Subsequent entries in the medical records by various healthcare professionals documented the same attitude which was reiterated by the pursuer in his evidence. Referring to the SPS, he said: "They could not cope with the idea I had swallowed blood and that they had abandoned me ...I did not trust them, not one little bit." He had come to that view, he explained, within weeks of the incident when he was left to cope on his own.

[22] Early in 1999 Dr Barrett referred the pursuer to Dr Derek Palmer, Consultant Psychiatrist. The pursuer attended Dr Palmer for assessment on 23 March 1999. He was then further referred by Dr Palmer to Mr Tom Dowds, Clinical Psychologist. Neither Dr Palmer or Mr Dowds gave evidence but the relevant correspondence and clinical notes are to be found in the Levrendale Leverndale Hospital records, 7/2 of process. These document the pursuer's strong feelings of anger focused on the SPS. Mr Dowds discharged the pursuer on 21 February 2000.

[23] Among the matters which recurred in the evidence of the pursuer was his belief, based on something he said he had been told at Ruchill Hospital, that the hepatitis C virus can be present but lie dormant for up to 15 years, notwithstanding a negative test result. Thus, although by 5 February 1998 when the pursuer was discharged from further attendance at Ruchill, on all blood tests having proved negative, including the tests for hepatitis B and C, the pursuer retained a lingering fear that he might yet develop hepatitis C, notwithstanding the absence of any clinical evidence to that effect. As I understand it, this belief is without any scientific basis and it is very unlikely that the pursuer was given such advice by any healthcare practitioner. His adherence to this erroneous belief would appear to demonstrate a degree of selectivity in what advice the pursuer chooses to accept. That he is clear of infection was recently confirmed by the results of a series of tests at Monklands Hospital reported on 7 April 2009, 19 May 2009 and 4 September 2009. Nevertheless, the pursuer explained in evidence that he wakes up every morning fearful about the possibility of there being a virus in his body. He has had these fears ever since he understood that he had swallowed Collins's blood on 3 August 1997. As far as Collins's infective status is concerned the pursuer has no doubts: "I got told he was a junkie - a needle user - that is enough for me, I am still convinced he was HIV positive."

[24] As I have indicated, the pursuer was reassured by Miss Cassidy that the risk of him having been infected was very low indeed. He received advice at Ruchill Hospital on the nature of blood borne infections, the risk of transmission and the implication of testing including the management, support and treatment available in the event of a positive test. He also underwent a course of cognitive behavioural therapy at Langside Priory, apparently with good effect. He attended his general practitioner. Beginning in November 1997, he received help from the Human Resources Manager at Barlinnie, Dawn Wardrop. Ms Wardrop met the pursuer whenever he brought in a sickness certificate. Initially he was appreciative of Ms Wardrop's assistance but after a difficulty over sick pay he became critical, expressing his views in very strong language, if Dr Freeman's report of 21 June 2010, 7/5 of process, is accurate. However, notwithstanding these various interactions, it was the pursuer's position that, prior to attending Langside Priory, he had never received counselling. He defined counselling as sitting down with someone who would ask him to explain how he felt and what was going on in his mind.

The Barlinnie Care Team

[25] Critical to the pursuer's case is the fact that in 1997 there was in existence something called the Barlinnie Care Team. Mr O'Friel identified that the concept of a care team was familiar in the Prison Service by the mid-nineteen-nighties1990s as a way of responding to serious incidents. The first time he had used a care team in anger was after the Strangeways Prison riots in 1990. Specific evidence about the Barlinnie Care Team was given by a member of the Team, Alan Haughey, under reference to two documents: a leaflet designed to publicise the existence of the Team and the services it provided entitled "A Service to Barlinnie", 6/6 of process; and a document "Traumatic Incidents in the Workplace, Training for Designated Officers: dealing with traumatic incidents and ensuring support for staff involved", 6/7 of process. Certain matters were agreed by Joint Minute. The Team was set up on or about 18 January 1994. It provided a voluntary, confidential support, listening and guidance service within HM Prison, Barlinnie. It was available to staff and prisoners. The Team had 11 members drawn from prison staff. These were prison officers who had volunteered to participate in the Team. They were not qualified to provide medical care or psychological therapies. They were available to provide support or advice in the aftermath of an incident. Where appropriate they would refer the staff member or prisoner to appropriate professionals, such as a nurse or a general medical practitioner. Mr Haughey thought the Team was wound up in about 2000 but it was in operation in 1997.

[26] The publicity leaflet, 6/6 of process, began with the following introduction:

"Where any prisoner or member of staff has been involved in an incident or has suffered a personal crisis, the Barlinnie Care Team will provide, with the individual's co-operation, care, support and advice and will at all times respect the individual right to confidentiality."

The names of the members of the Team were then set out and there followed 11 questions and answers designed to explain the Team's function. The questions and answers included the following:

"1. Q. What is the Care Team?

A. Barlinnie has a group of staff identified as the local Care Team. They
can be from any occupational group, grade or profession and have an interest in providing support to prisoners and staff in a crisis situation. All have had training to prepare them for this work.

2. Q. Why is this service required?

A. It is recognised that serious incidents, personal trauma affect different people in different ways. Almost everyone has some sort of reaction and this normal and natural. The Prison Service recognises that it has a duty of care for all of its staff and prisoners and wants to minimise the harmful effects of a serious incident.

3. Q. What effect might I experience?

A. This varies very much with individuals. The after effects might take the form of sleeplessness, nightmares, intrusive flashback/recall, headache, tiredness, general feeling out of sorts or a number of other things. Whilst they might be normal after a period of extreme pressure they do need attention if they persist. These effects may be delayed and appear some time after the traumatic experience, perhaps even weeks or months later.

4. Q. What should I do?

A. If you think you are suffering from the effects of the incident, no matter how much or how little, talk to a member of your local Care Team. They have been selected to help prisoners and staff to get care and support or talk to a trusted colleague.

5. Q. What can a member of the Care Team do for me?

A. The Care Team is available to every member of staff and prisoner to offer initial support and advice. They will discuss with you your initial reaction, talk about the possible after reactions and explain the service available. They can make arrangements to put you in touch with someone who may be able to provide help, if that is what you need. Alternatively they provide you with a point of contact.

...

8. Q. Does this service replace treatment by my GP?

A. No. If your doctor prescribed treatment you follow it. Even if you are receiving help from your GP, you can still talk to the people providing this service.

9. Q. Do I have be on sick leave before I ask for assistance?

A. No. The service is available to you whether you are at work or on sick leave.

....".

[27] Mr Haughey was led for the defenders. In his examination-in-chief he described what the Care Team did as providing a listening service for staff and inmates. When asked to give examples of when such a service might be necessary, he mentioned suicide, self-harm, staff assault and prisoner assault. If a prison officer had come to him with concern over swallowing infected blood he said he would listen to him and advise him to go and see his general practitioner. In cross-examination Mr Haughey confirmed that had the pursuer come to him in a distressed condition he would have done all in his power to be of help. Had the pursuer told him that he needed to unburden himself, Mr Haughey confirmed that he would listen, albeit that there would come a stage when he would have to let go. He confirmed that he was a designated officer who had been trained to deliver support. The evidence did not disclose who had provided that training. He confirmed that his training had been along the lines of that described in the document "Training for Designated Officers: dealing with traumatic incidents and ensuring support for staff involved", 6/7 of process. This bore to have been prepared by an organisation described as Employee Counselling Service. At page 9 of that document the function of a designated person is set out in a number of bullet points, these being:

"listen, be sensitive to people's anxieties, reassure people that their feelings are normal, arrange a critical incident debriefing for all involved where appropriate, be aware of their own limitations and have access to support within the company or through an outside agency."

Although he provided an affirmative answer to the proposition that he had been trained to deliver these various forms of support, the only example that Mr Haughey volunteered was listening. He was not asked whether he knew what a critical incident debriefing was or whether he had any experience of such a thing or whether he would have attempted to provide it to someone presenting in the circumstances of the pursuer. He did however confirm, in the course of cross-examination, that had the pursuer presented to him as having a need for a "cup of tea and a chat" he would have provided that.

[28] On the fairly limited information I had about the Barlinnie Care Team it appeared to me that there was a discrepancy between the aspiration, as represented by the leaflet and the training document, 6/6 and 6/7 of process, and the actuality, as represented by what Mr Haughey felt able to do. Whether the aspiration was ever entirely realistic I do not know. The evidence of Dr Rogers and Dr Freeman, supported by the terms of the National Clinical Practice Guideline Number 26 on Post-traumatic stress disorder ("NICE Guidelines") published in 2005, 7/12 of process, would suggest that views about the efficacy of the critical incident debriefing have changed since 1993 which is the publication date of "Traumatic Incident in the Workplace". Whereas in 1997 a critical incident debriefing was thought to be helpful in reducing the subsequent development of PTSD, now the practice is thought to be positively unhelpful. For present purposes, that might not matter. In the absence of better information I consider it appropriate to take the terms of 6/6 and 6/7 of process as indicating what the SPS knew or can be deemed to have known in 1997 about the risks of psychiatric injury consequent upon the incident in the workplace and what might be done to alleviate these risks. That is of obvious relevance when considering duty of care. That said there was nothing in Mr Haughey's evidence to suggest that he, or any of his colleagues in the Barlinnie Care Team, were was equipped to do more than to lend a friendly ear to prison officers or prisoners who were anxious or otherwise felt under stress. When the service was offered to a prison officer it would seem to me to be proper to regard what was intended was a form of peer support simply by listening to what a colleague had to say and making reassuring conversational responses. In the course of submissions this was referred to as "tea and sympathy". That expression was not meant to be facetious or pejorative but merely a shorthand which gives something of the flavour of what the Barlinnie Care Team had to offer. When Mr Summers came to make his submissions on behalf of the pursuer, I did not understand him to suggest that there was evidence that the Care Team provided anything more than that.

The issues

[29] In order to succeed with his claim it is for the pursuer to establish that he has suffered an injury (a psychiatric illness taking the form of a depressive episode) which was caused by a breach of the duty of care which is averred in the pursuer's pleadings as having been owed towards him at the relevant time by the SPS.

[30] In the written submission lodged on behalf of the pursuer it is said that the true issues in the case are (a) whether there was a negligent failure to operate the system devised to prevent a foreseen class of injury and (b) whether the negligence was causally connected to the Pursuer's injury? I agree with that statement but it compresses within it a number of ideas which I see it as necessary to tease out. I shall do so under the familiar heads of injury, duty, breach and causation.

Injury

[31] The consultant psychiatrists who gave evidence were unanimous in finding the signs of mental disorder in the pursuer in the period subsequent to 3 August 1997. Their views as to the nature of that disorder diverged. When the pursuer first consulted him, Dr Fraser was of the opinion that he presented with symptoms of PTSD, although he did not fulfil all the diagnostic criteria, as Dr Fraser advised Dr Barrett by letter dated 31 March 1998. When giving evidence Dr Fraser described the pursuer's condition as a mixture of anxiety, depression and post-traumatic symptoms. The primary cause, according to Dr Fraser, was that the pursuer had been told that the blood he had swallowed had come from an individual with a high risk of HIV infection. The secondary cause was the attitude that the pursuer's employer had taken adopted towards to that incident. Dr Freeman accepted that the pursuer had developed a major depressive disorder. What had caused that was the way in which the SPS reacted to the incident and the pursuer's perception of that reaction. Dr Freeman did not consider that the pursuer suffered from PTSD. Neither did Dr Rogers. In Dr Freeman's opinion the pursuer has from an underlying personality disorder. Dr Fraser in his report dated 29 October 2010 described that as a diagnosis plucked from thin air and Dr Rogers, while acknowledging Dr Freeman as a practitioner of the highest calibre and a leading figure in the field, agreed. On the other hand Dr Rogers did supported a diagnosis of depression. In his opinion the pursuer had suffered from a Moderate Depressive Episode since about September 1997, with symptoms waxing and waning since then. Before then the pursuer had not had a significant psychiatric history. He did not consider the pursuer to be depressed as at the date of the diet of proof in that he had settled into a lifestyle of not working and avoiding stressful activities but he was not well. Dr Rogers would recommend that the pursuer continue taking long-term depressants.

[32] Dr Rogers recognised that the pursuer was prone to boiling over in anger but in his opinion the pursuer's hostility, anger and sense of injustice can be interpreted as symptoms of anxiety and depression caused by his morbid fear of HIV or Aids. That fear became so deep-seated that even a blood test was no longer sufficient to relieve it. As Dr Rogers saw it, the pursuer believes that, through no fault of his own, he was exposed to potential contamination and that he started to feel that he had not been given adequate support in the immediate aftermath of the incident. The irascibility caused by his depression drove the pursuer's sense of injustice.

[33] Such differences of opinion among well-qualified experts can present the court with difficulties which can only be resolved, as Lord Prosser explained in Dingley v Chief Constable of Strathclyde 1998 SC 548 at 604 in a passage quoted by Mr Milligan, by the strength of the reasoning underpinning the respective positions. That of course requires the reasoning to be fully explained. That is not always done. I shall have occasion to return to the significance of this later in this opinion. However, where there is a degree of consensus among experts then I would see it as appropriate to adopt that consensus unless it clearly runs counter to other evidence. What the pursuer sets out to prove is that he suffered a depressive illness by reason of the events of 3 August 1997. Here Dr Rogers and Dr Freeman were agreed that he did suffer a depressive illness by reason of what happened on that day. I did not see that the slightly different ways in which they characterised the depressive illness mattered. Dr Fraser also identified an element of depression in the pursuer's condition and again attributed that condition to the incident on 3 August. The pursuer's general practitioner (Dr Rosemary Barrett) included "depression" on her clinical note for 11 August 1997 and the pursuer was prescribed an anti-depressant on 5 September 1997 and, for what it is worth, the pursuer's description of how he felt would be consistent with my understanding of what depressive illness is. I therefore find proved that the pursuer has suffered from psychiatric illness which might be described as a Moderate Depressive Episode since approximately September 1997. I do not find it necessary to determine whether the pursuer suffered from PTSD or that he has a personality disorder. If I am wrong about that I do not consider that I could find either condition established by reference to what I heard in evidence and, indeed, if I understood them correctly, neither Dr Fraser in respect of PTSD, nor Dr Freeman in respect of Personality Disorder, suggested that the pursuer fitted neatly within the relevant diagnostic criteria.

[34] In the third of the propositions with which they begin their written submissions, the defenders challenge the pursuer's averment that he not only has suffered a Moderate Depressive Episode but that he continues to do so. The proposition is in these terms: "esto the pursuer suffered psychiatric injury as a result of breach of duty on the part of the defenders, that injury lasted at most from 11 September 1997 to 22 September 1998". The first of these two dates, 11 September 1997, was when the pursuer consulted Dr Colin Barrett and was certified as unfit for work by reason of depression. The second of these dates, 22 September 1998, was the day prior to the pursuer's discharge from Langside Priory when he was noted as scoring 0 on the Beck Depression Inventory, his levels of anxiety and mood were assessed as normal and he was said to have met all his therapeutic goals. It seems to me that the question as to whether the pursuer's depression has persisted beyond September 1998 comes to be a question of degree. I see the results on psychological testing at Langside Priory to be a reasonably robust indicator that as at that date the pursuer's depressive symptoms had been controlled by cognitive behavioural therapy. Thereafter he returned to work, albeit temporarily. That would seem to show, as Dr Freeman observed, that the pursuer's depression is treatable. However, according to Dr Fraser, the pursuer thereafter relapsed, the treatment at Langside Priory having reduced the severity of the depressive symptoms but not led to their entire resolution. Dr Rogers talked of a depression which waxed and waned. He recommended that the pursuer should be maintained on a long-term anti-depressant but when asked in examination-in-chief whether the pursuer was still depressed he said that he did not think so, beyond some residual symptoms. The pursuer has now not worked in steady employment for some time. While understanding that the pursuer was not currently in employment because of his low tolerance of stress, Dr Rogers said that the pursuer should try and get back to work, initially in sheltered employment and on a part-time basis. There was nothing he identified which the pursuer could not do. Dr Freeman rejected the description of the pursuer's condition as a depression that has waxed and waned. He pointed to the absence of the symptoms of severe depression: such as being housebound, losing weight, or feeling suicidal.

[35] It does not appear to me that Dr Fraser and Dr Roger, on the one hand, and Dr Freeman, on the other, are that far apart when it comes to what continues to be attributable to the pursuer's depressive illness. Neither side suggest that the relevant symptoms are severe. The symptoms or potential symptoms that there are, are controllable with anti-depressant medication. The pursuer is capable of work and would feel better if he were at work, a view which I understood the pursuer to share. In that sense I find that the pursuer's depressive episode continues.

[36] If there was a consensus among the experts as to the pursuer suffering from depression and something approaching a consensus on its duration, there was no consensus on how that depressive illness related to the strong feelings of fear at being exposed to a potentially fatal infection and anger at the way he was treated by the SPS that the pursuer spoke so clearly about in his evidence and which are documented throughout the records. Dr Rogers saw fear as leading to depression and anger as symptom of depression. Dr Freeman ascribed the depression to anger, the anger being generated by the way the SPS and others had reacted to the incident. Dr Fraser had a foot in both camps. According to him, the primary cause of the pursuer's mixed anxiety, depression and PTSD symptoms, was fear, the secondary cause was anger. As Dr Fraser later put it, perhaps altering the emphasis "anxiety had given rise to the depression; anger was part of the picture but not a cause of depression".

[37] As I understand it, fear and anger when provoked by external stimuli can properly be regarded as natural emotions but they may also, when internally generated and extreme, be symptoms of psychiatric illness and thus pathological. No doubt a natural emotion can, through its persistence and pervasiveness, become pathological. For Dr Rogers the natural emotion fear has given rise to a pathological anger. For Dr Freeman it is the natural emotion which has given rise to a pathological condition, an aspect of which is anxiety.

[38] Looking to the whole evidence there is much in Dr Freeman's view on this matter which is persuasive. The pursuer's persistent and often expressed anger at the SPS provided a leitmotif for his evidence. That anger would appear to date from the day of the incident or very soon after it. Contrary to what he expected, no one from management spoke to him. When he saw Mr Lamont on Monday 4 August 1997, "...it was though it was my fault, he was not interested". He dismissed the visit by Mr Lamont and Mr McDonald on 11 September 1997 as "just a ploy". An entry in the general practitioner's records for 28 November 1997 notes that the pursuer "remains angry with the Prison Service". In cross-examination Dr Rogers was asked why the pursuer was so angry. He replied that the pursuer "felt let down by his employer, he felt abandoned, he felt he had not been listened to, he felt that he was not being treated seriously, he had been rejected, he felt unsupported." The pursuer had given evidence to similar effect. Dr Rogers took this to be the perception, not the reality. While that may be the correct way of describing these quite extreme expressions, I would not consider it unreasonable for the pursuer to have been disappointed with and angry about the managerial response to the incident, as discussed above. I therefore reject Mr Summers's invitation to find that the pursuer's anger was secondary to his depression. That is not to say that depression has not made the pursuer more irritable or even that his very powerful anger has not become to an extent pathological. Rather, I find anger as a cause rather than an effect gives cogency to the narrative which would otherwise be lacking. That said, I find it difficult to accept Dr Freeman's formulation of anger as the cause of the pursuer's depression without also factoring in the component of fear. The pursuer believed that through no fault of his own (indeed perhaps as a result of his diligence) he had been exposed to a potentially fatal infection in the course of carrying out his duties. He said in evidence that he was afraid that he would die. I accept that evidence. Again, I find that a reasonable reaction to what he was entitled to regard, at least initially, as a life-threatening event. In a second speech Mr Summers warned me against bringing intuition to bear; I had to rely on the psychiatric evidence. There was no room, he said, for common sense intuition. While I have kept that in mind, it appears to me that I am entitled to take from everyday experience that fear fuels anger. Accordingly, notwithstanding the pursuer's very evident and strong feelings of anger and Dr Freeman's evidence as to its importance, I accept Dr Rogers's assessment that a necessary component in the process that led to the pursuer developing depression were his fears about blood borne infection.

Duty of care

[39] The duty of care relied on by the pursuer is set out at pages 44 and 45 of the Closed Record. Put shortly, the pursuer avers that it was the duty of SPS to have in place and implement a system whereby the pursuer was provided with early counselling and support to help him deal with the trauma of the accident. It goes on to aver that such counselling and support would have involved the Barlinnie Care Team discussing with the pursuer his initial reactions, possible after-reactions, and making immediate arrangements for the pursuer to have a blood test for Hepatitis and HIV. I would note that there is also an averment that the system which it was the duty of SPS to have in place would involve making the pursuer aware within, at most, a few hours of the incident that he had the active support of senior management either by senior management speaking to the pursuer in person or over the telephone. I did not understand that averment to be developed in argument and there was no evidence that it was reasonably foreseeable to the SPS that a failure to act in this way would exacerbate the risk of psychiatric injury in a case of this sort.

[40] Thus, the pursuer seeks damages for psychiatric injury consequent upon his fear of contracting physical illness which, he avers, would have been materially alleviated had he been provided with the "psychological first aid" which could have been made available to him by the Barlinnie Care Team. When the matter was at Procedure Roll, before Lord Emslie, it was argued on behalf of the defenders that the pursuer's case did not fall within any of the recognised categories where such recovery might be permitted. In allowing proof in the action, Lord Emslie rejected that submission for the reasons which appear in his opinion which is reported at 2009 SLT 429. Commenting on the relevancy of the pursuer's pleadings, Lord Emslie observed (2009 SLT 429 at paragraph [22]):

"His claim is firmly limited to the employer/employee relationship, to the immediate aftermath of a traumatic incident at work, and the defenders' alleged failure to implement their own purpose-designed counselling and support system."

That characterisation of the pursuer's case is consistent with what appears in the pursuer's written submissions as the first of the two true issues in the case: whether there was a negligent failure to operate the system devised to prevent a foreseen class of injuries. That is the case that was allowed proof and that is the case, and the only case, that the pursuer is entitled to make. I stress this because of some things that were said by Mr Summers in submission. In his first speech he said that even if the Barlinnie Care Team's services were not engaged there was nevertheless a duty owed by the SPS towards the pursuer and later, under reference to what appears at page 46B-C of the Record, that there was a duty to provide Barlinnie Care Team services by alternative means. He went on to argue that given that Drs Rogers and Fraser were of the view that "tea and sympathy" was what was called for here it may be that this of itself would have been sufficient to avert the injury without the detailed advice set out in 6/7 of process. In his second speech, and for the first time, Mr Summers described referral to the Barlinnie Care Team as his primary case, his secondary case being that, as I noted him, "somebody should have done something".

[41] In my view Mr Summers did not have a secondary case. He only had a primary case and that was circumscribed by what the SPS could be deemed to know and foresee by reference principally to 6/7 and 6/6 of process and by what the Barlinnie Team actually could and did offer. It comes to be a matter of specification, first as a matter of pleading, then as a matter of proof. In submission Mr Summers described the case as being "in uncharted waters". He may well be correct. If he is, it appears all the more important clearly to identify what duty has been pled and the extent to which the averments have been made out in the evidence.

[42] The pursuer has been allowed proof of the averment that SPS was under a duty of care "to implement a system whereby the pursuer was provided with early counselling and support to help him deal with the trauma of the incident". That averment only gets the necessary degree of specification from the "further and in any event" involvement of the Barlinnie Care Team which is averred at page 45D of the Record. As Mr Summers pointed out, the pursuer does have an averment, at page 46B-C: "Separatim, esto the pursuer should not have been referred to the Barlinnie Care Team, (which is denied) it was the duty of the SPS to take reasonable care to support the pursuer after the incident so as to prevent the pursuer from feeling isolated and abandoned by the SPS. Reference is made to Article II hereof." Article II of Condescendence is wide-ranging but it is difficult to discern what is meant by "support ... so as to prevent the pursuer from feeling isolated and abandoned" other than by reference to what was offered by the Barlinnie Care Team.

[43] Even if I am wrong as to whether the pursuer has a secondary or alternative case on the pleadings, it would be my view that he does not have a secondary or alternative case on the evidence. As far as what Mr Summers described as his primary case, the pursuer can rely on what appears in 6/7 and 6/6 of process, particularly in relation to the degree of foreseeability of risk of psychiatric injury to be attributed to the SPS, and the evidence of Alan Haughey. There was no equivalent but different evidence to support a secondary case. I took Mr Summers to acknowledge that when in identifying his secondary case in terms of a duty to provide Barlinnie Care Team services by alternative means, he explained that Alan Haughey's evidence of what he did would be the measure of what the duty required. Certainly, Mr Haughey's description of a listening service is nothing more or less than what was described in submission, with no intention of denigrating it, as "tea and sympathy". Thus, if what is desiderated is "tea and sympathy" and no more, what Mr Summers described as the pursuer's secondary case comes to be the same as his primary case. This being so, I intend to restrict my consideration to Mr Summers's primary case: a duty to refer to the Barlinnie Care Team with a view to the provision of the services described by Mr Haughey.

[44] For the defenders, Mr Milligan's submissions on breach of duty seemed to me to trench on the question of whether the pursuer had established in evidence the duty averred on Record or at least that the circumstances were such that fulfilling any such duty of care required the SPS to intervene by referring him to the Barlinnie Care Team. He reminded me, under reference to Taplin v Fife Council 2003 SLT 653, Rorrison v West Lothian Council 2000 SCLR 245 and Robertson v The Scottish Ministers
[2007] CSOH 186 that an employer could only be under a duty to protect an employee from psychiatric harm if such harm was foreseeable. He commended Sutherland v Hatton
[2002] 2 All ER 1; [2002] 1 ICR 613, a decision of the Court of Appeal in England, as the leading case on foreseeability of, and liability for, psychiatric injury. It had been appealed in part to the House of Lords sub nom Barber v Somerset County Council [2004] 1 WLR 1089. At paragraph 43 of the judgement of the Court of Appeal, Hale LJ (as she then was) enunciated a number of principles (described by Lord Walker of Gestingthorpe when giving the leading speech in the House of Lords as "useful practical guidance", albeit not to be read as if having statutory force). From these principles Mr Milligan derived the following propositions which he said applied in the present case:

a. There was no evidence that the defenders were aware of any pre-existing vulnerability of the pursuer to psychiatric injury due to stress at work.

b. The evidence suggested that the pursuer had a vulnerable personality; a vulnerability which the defenders knew nothing about. In particular they could not be expected to foresee that the pursuer would be especially vulnerable to an anxiety related disorder following an incident of this sort.

c. While the defenders may have foreseen that certain traumatic incidents such as suicides and riots might produce stress related illness, the defenders could not have foreseen the particular type of harm - an anxiety related disorder - which this pursuer appears to have suffered as a result of this particular incident. The evidence of Mr O'Friel was that he had never encountered an incident of this sort in his 30 years of involvement with the prison service. Hostage taking and riots had been shown to result in PTSD. It was impossible to predict that this type of highly unusual incident would result in a different type of psychiatric disorder.

d. Even after the occurrence of the incident of 3 August 1997 the defenders had no means of knowing that the pursuer might be in need of further assistance, since they had been told that he was receiving counselling from a unit specialising in persons exposed to infectious diseases i.e. from those who might be expected to be the foremost experts in the field. They were entitled to take that information at face value. They were accordingly not under a duty to make further enquiries as to what further steps might be taken.

e. Referral to the Barlinnie Care Team would not have resulted in different treatment or a better outcome. The BCT would only have been likely to refer the pursuer to the health centre, Ruchill Hospital, and/or his GP since they did not have the necessary expertise to deal with the aftermath of this type of incident.

f. It is possible that referral to the Barlinnie Care Team would have led to a worse outcome for the pursuer since the Barlinnie Care Team had no psychological training, and the evidence suggested that knowledge about blood borne viruses among Barlinnie staff, including members of the Barlinnie Care Team, was poor at best.

g. The steps which the defenders did take were more than would be expected of a reasonable employer, were appropriately timed, and were more likely to be effective than any other steps desiderated by the purser or his witnesses.

[45] As one sees from the authorities (eg Hartman v South Essex Mental Health and Community Care NHS Trust [2005] 1 ICR 782 in the passage cited by Mr Milligan at para 10), when determining whether a duty of care exists and whether it has been breached, much depends on the facts of the particular case. What the facts are taken to be depends on what evidence is led. Here, in the absence of other evidence beyond what Mr Haughey provided, I considered that I was entitled to rely on the contents of the two documents describing the Barlinnie Care Team, 6/6 and 6/7 of process in determining what the SPS could foresee in 1997 and what it thought could be done about it (correctly or otherwise). I accept that while it may be said that the pursuer did have a vulnerable personality in his morbid fear of infection there was no evidence that the SPS was aware of this. As Mr Milligan stressed, the pursuer's case was conducted on the basis the pursuer had a normal, cheerful, well-balanced personality prior to the incident on 3 August 1997. Mr Summers acknowledged as much; there was "no peculiarity about the pursuer", was the way he put it. However, that the SPS was entitled to regard the pursuer as someone of normally robust personality only takes the defenders so far. On the evidence I heard under reference to, 6/6 and 6/7 of process, the services of the Barlinnie Care Team were not just intended for the vulnerable. Rather they were offered to any prisoner or member of staff who has been involved in an incident (perhaps to be understood as a serious incident) or suffered a personal crisis. In his proposition c. Mr Milligan asserted that only particular events: suicides, riots, hostage-taking, could be seen to give rise to the risk of stress related illness and he cited PTSD as an illness that had been associated with riots and hostage-taking. The explanatory leaflet, 6/6, does not restrict itself to PTSD, rather it notes that "serious incidents [and] personal trauma affect different people in different ways". "Traumatic Incidents in the Workplace", 6/7 of process, has the look of a generic document with only minor adaptations for use in the training of prison officers. It adopts a wide definition of traumatic incidents, as including "unusual events that leave individuals feeling upset and disturbed". It explains that traumatic incidents generally involve individuals: "feeling a threat to their physical integrity, realising they are vulnerable, having little or no control over the situation, [and] being in a situation where they cannot control their feelings of fear or anger". Such an event may be public but "people involved in more private incidents ...may well experience similar feelings as those involved in major events" and "once such an event has occurred the responsibility of the employer is to minimise the consequences for the individuals involved by offering as much support and care as [he] can". "Traumatic Incidents in the Workplace" includes the information that: "Between 30-60% of people involved in traumatic events go on to experience more serious symptoms of Post Traumatic Stress Disorder. Taking steps to help in the early stages can minimise these problems." However, as Mr Summers pointed out, the document is not limited to PTSD. At page 11 of 6/7, there are listed a number of general signs of stress which, taken together, would be suggestive of depression, whereas at page 12 there is the statement: "given support, understanding and care by their employer there is a very good chance that most people will not experience further difficulties."

[46] Mr Milligan said that there was a the crucial fallacy underlying the pursuer's submissions and that was that because the Barlinnie Care Team had been set up to deal with the possibility of trauma causing a mental health problem, all psychiatric injury following all trauma is reasonably foreseeable to the defenders. I can see that a proposition put that way may be fallacious but in determining what was foreseeable to the SPS in 1997 I can only go on the evidence that was led before me. I appreciate that too much may be taken from 6/6 and 6/7. They are not very substantial documents and are aimed at a general readership. Not all the information given there may be accurate, at least from today's perspective, as I understood Dr Rogers to accept. For example, critical incident debriefing which was formerly thought to be of value is now regarded as positively counter-productive. Nevertheless, I heard no evidence to contradict what appeared in the documents as far as the state of knowledge of the SPS in 1997 was concerned. Accordingly, on the basis of the contents of these documents but also what was said by the pursuer and his former colleagues, Messrs Mackie, Lamont and Haughey, I see it as appropriate to ascribe to the SPS an understanding that a serious incident involving an individual might lead to that individual, by reason of his perception of a threat to his physical integrity, to develop a psychiatric illness of which PTSD would be one but not necessarily the only example. I would similarly ascribe to SPS the understanding (whether accurate or not) that that risk could be substantially reduced by the giving of emotional support by allowing the individual to talk to a colleague about how he felt and that colleague responding by expressing his understanding of the situation. I further see it as appropriate to regard what happened to the pursuer as falling into the category of a serious incident as that expression is used in the Barlinnie Care Team documents; it was an unusual incident, it was dramatic in that the pursuer's face and shirt were splashed with a significant amount of blood and it involved a perceived (although perhaps more perceived than actual) risk of infection with serious diseases. According to Mr Mackie the pursuer was immediately visibly affected. Mr Haughey gave suicide, self-harm, staff assault and prisoner assault as examples of circumstances in which the Barlinnie Care Team's listening service might be available but I did not consider that he was providing an exhaustive list. I do not accept therefore that it was not reasonably foreseeable that the incident involving the pursuer might give rise to a depressive illness. On the evidence, this incident was an example of what the Barlinnie Care Team was set up to deal with. I recognise that the provision of a precautionary measure does not, of itself, establish a duty to provide such a measure, but in all the circumstances I accept that following the incident on 3 August 1997 the SPS was under a duty to see that the pursuer was offered early counselling and support of the sort that could be provided by the Barlinnie Care Team.

Breach of duty

[47] The pursuer was not referred to the Barlinnie Care Team. Mr Summers submitted that that was indicative of negligence on the part of the pursuer's immediately superior officers, Mr Mackie and Mr Lamont. Mr Mackie's lack of knowledge of the Barlinnie Care Team was token either of his negligence in forgetting about it or negligence on the part of SPS in failing to make him aware of it. Mr Lamont was aware of the existence of the Barlinnie Care Team. He was told of the incident involving the pursuer at report on Monday 4 August 1997. He did nothing.

[48] I have said that I consider that the SPS, through its responsible officers, was under a duty to see that, following on the incident on 3 August, the pursuer was offered early support of the sort that could be provided by the Barlinnie Care Team. He was not referred to the Team. Does it follow that there was therefore a breach of duty? I am not persuaded that it does. It must always be kept in mind that what gives rise to a duty of care, breach of which can be regarded as negligence, is risk of injury to health. No doubt a good manager will seek to reassure and soothe an employee who, to his knowledge, has had a frightening experience at work or has otherwise become anxious or resentful. One might be critical of the manager who failed to do so, and I consider that there is a basis for criticising the SPS managers in this case, but such failure would not, per se, sound in damages. Mr Milligan drew attention to what was said by Lord Carloway in Fraser v Secretary of State for Scotland 2001 SLT 1051 at 1057H-I:

"It is not disputed that the duty is only to take reasonable care to prevent psychiatric harm. It is not to protect an employee from unpleasant emotions such as grief, anger and resentment or normal human conditions such as anxiety or stress. These do not form any 'injury' at all."

Mr Summers did not suggest otherwise. He accepted in terms that his case was of failure to deliver a proper therapeutic response (strictly a proper prophylactic response) rather than a proper managerial response. Now in fact the pursuer did have the benefit of a number of therapeutic responses within a week or so of the incident, albeit that they had come about by reason of him having to take the initiative. He attended the prison health centre on Sunday 3 August when, according to him, he was advised that the risk of infection was very small; he attended Ruchill Hospital which provided a specialist service in relation to blood borne infection, probably on Wednesday 6 August, when again, as he accepted, he was reassured that the risk was low; and he attended his general practitioner, who he described as very supportive, on Monday 11 August when he was certified as unfit for work due to depression and on subsequent dates. A feature of all these responses is that they were from medically qualified persons in relation to what looked to be an entirely medical problem. Mr Mackie is blamed for not knowing about the exact function of the Barlinnie Care Team and not persisting in his attempts to contact the pursuer when he went off work. Mr Lamont is blamed for doing nothing (on the evidence, not having applied his mind to the matter). That is to suppose that SPS remained under a duty to refer to its in-house counselling and support service notwithstanding the fact that the pursuer was in receipt of advice and support from professional medical services, . I find that rather difficult to accept. In the course of what were very attractively presented submissions, Mr Summers recognised that there may be cases where an employee is physically injured at work without fault on the part of the employer. In these cases the employer has no duty beyond the provision of basic first aid and if the circumstances call for it advice to the employee that the employee should attend their general practitioner but, he went on, "in this class of case" however the employer had recognised that support from within the workplace was a necessary part of the therapeutic process and it was not enough to send an employee to his own general practitioner or otherwise to leave the employee to his own devices. Mr Milligan, on the other hand, submitted that once the pursuer was attending the specialised unit at Ruchill the SPS had no means of knowing that the pursuer might be in need of further therapeutic assistance. I agree with Mr Milligan. I accept that the creation of the Barlinnie Care Team and the provision of training to staff demonstrate that the SPS were was aware of the need for psychological and psychiatric support for their staff in the event of potentially traumatic experiences, as a matter of generality. I do not accept that the evidence here demonstrated that the SPS must be taken to have known that where the pursuer was faced with the specifically medical problem of the possibility of infection and its consequences and was apparently being advised about that by the best qualified available source of advice, that support from within the workplace remained a necessary part of the therapeutic process. The desirability of continuing emotional support from the SPS even if the pursuer was being provided with good quality information from Ruchill was first floated by Mr Summers in his re-examination of Dr Rogers. It also got support from Dr Fraser, again in the course of re-examination. Apart from other considerations I would question the practicality of such an arrangement for parallel counselling. I saw force in Mr Milligan's submission that it is possible that referral to the Barlinnie Care Team might have led to a worse outcome for the pursuer or at least have been thought to lead to a worse outcome. There can be no question but that it was necessary for the pursuer to avail himself of the services of the specialist unit at Ruchill. Had the pursuer taken up a referral to the Barlinnie Care Team and had the Team member offered anything by way of counselling beyond a simple listening service then, given that Team members had no psychological training, and that knowledge about blood-borne viruses among Barlinnie staff, including members of the Team, was poor, there would have been a risk of conflict and confusion as between what the pursuer was being told at Ruchill and what he was being told at Barlinnie. Admittedly, it is questionable whether referral to the Barlinnie Care Team would have resulted in much in the way of counselling. Mr Haughey was asked what he would have done if the pursuer had come to him with concerns about having swallowed infected blood. His response was that he would have listened to him and told him to go and see his general practitioner. In fact that is what the pursuer did. Having taken the view that the SPS was under a duty to see that, the pursuer was offered early support of the sort that could be provided by the Barlinnie Care Team, it appears to me that on the evidence that is what he did receive and the SPS was aware of that, albeit without any referral to the Team. I therefore do not find the SPS to have been in breach of the relevant duty of care.

Causation

The issue on causation

[49] Were I to be wrong in my conclusion about breach of duty the pursuer would succeed in his claim if, but only if he has established that had he been provided with the services of the Barlinnie Care Team the depressive illness of which he complains would not have developed or would have been materially less severe or materially shorter in duration. The pursuer's case is not that the SPS was at fault by reason of his exposure to a traumatic experience which led to psychiatric injury but that he having been exposed to a traumatic experience the SPS failed to take a specific prophylactic measure, referral to the Barlinnie Care Team, which would have prevented the psychiatric injury which the pursuer went on to suffer. The pursuer must therefore prove that but for the failure of the SPS to refer him to the Barlinnie Care Team and see that he was provided with the sort of service that it provided he would not have developed a depressive illness or that it would have been materially less severe or materially shorter in duration. The standard of proof is balance of probabilities. The onus of proof is on the pursuer. The task of determining whether the pursuer has discharged that onus is for the court.

The psychiatric evidence

[50] When the issue is one of whether a particular therapeutic or prophylactic measure would have prevented the development of a recognised psychiatric illness expert psychiatric evidence is clearly relevant. In this case three psychiatrists gave evidence. All were well qualified to do so. I took Dr Freeman, described by Dr Rogers as being "of the highest calibre, a leading figure", to be pre-eminent, having regard to his particular interests and experience, as demonstrated by his curriculum vitae and the peer recognition of his abilities which is implicit in his c.v. and was confirmed by Dr Rogers's spontaneous commendation.

[51] In the course of his submissions Mr Milligan reminded me of what had been said by Cresswell J in a passage in his judgment in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68 at 81 which has been very generally accepted as an authoritative statement of the duties of an expert witness. Point 2 on Cresswell J's list is this:

"An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise... An expert witness in the High Court should never assume the role of an advocate."

Dr Rogers and Dr Freeman were independent experts in the sense that they had been asked to consider the case in the interest of the respective parties, not having had any previous involvement. Dr Fraser had been a treating physician. He is therefore part of the pursuer's history. This confers the advantage that he has personal knowledge of some of the facts in that history, although also the disadvantage that he cannot be regarded as detached from it. I would see the professional obligations of a treating physician, including the promotion of his patient's best interests, as continuing notwithstanding that a course of treatment has come to an end. I would not find it surprising therefore that a treating physician or former treating physician should be partisan in his patient's cause. Here matters were compounded by Dr Fraser appearing to have adopted an adverse view of the SPS over what he perceived as their its failure to fund further cognitive behavioural therapy. Mr Milligan cross-examined Dr Fraser with the object of establishing that Dr Fraser's view on that matter had not been well-founded and that he had simply adopted the pursuer's perspective on the matter. Whether or not that was a fair assessment of the position it seemed to me that it illustrated the difficulty that a treating physician may have in giving evidence which is entirely dispassionate. When the whole evidence in the case comes to be weighed up I regard that as a relevant factor to consider.

[52] I now turn to the evidence which the respective expert witnesses gave in relation to the issue on causation.

[53] As appears in his report dated 17 January 2005, 6/5 of process, Dr Rogers identifies the chief prolonging factor for the pursuer's depression as the absence of early intervention to alleviate his anxiety. This intervention should have taken the form of counselling and psychological support within a few days of the incident on 3 August 1997. On Dr Rogers's understanding of the history it was a long time before the pursuer's beliefs about hepatitis and AIDS were challenged and by that time it was too late. In Dr Rogers's opinion in-house counselling would have made a substantial difference to the subsequent prognosis. He considered that what was described in "Traumatic Incidents in the Workplace", 6/7 of process, would have been helpful, although none of the steps described at page 7 exactly applied to the pursuer. Dr Rogers explains in a later report, 6/10 of process, that the term "counselling" is used by different people to mean different things. The counselling that he had in mind as being beneficial in this case might take have taken a number of forms but the chief ingredients would be education and information about the relevant blood borne illnesses, combined with information about the statistical probability or improbability of an individual acquiring the illness in a given set of circumstances. In evidence Dr Rogers talked about the need to "challenge" the pursuer's misbeliefs. Importantly, he accepted that for it to be effective, the person giving counselling must both know about the relevant risks and have had psychological training. There was a relatively narrow window of opportunity before the pursuer's immediate and natural fear became morbid and obdurate. That window was closing by the time the pursuer had consulted his general practitioner and been prescribed anti-depressants (the date noted in the general practitioner records for the first prescription of an anti-depressant is 5 September 1997). By the time the pursuer began cognitive behavioural therapy at Langside Priory he had, in Dr Rogers's opinion, a developed anxiety and depression. Dr Rogers contrasted what he desiderated with psychological debriefing or critical incident debriefing. In his report dated 7 November 2010, 6/11 of process, he concludes by expressing the view that critical incident debriefing or any other form of post-traumatic counselling would not have been appropriate or helpful (a view confirmed by Dr Freeman) because the real issue with the pursuer was exposure to blood, leading to a morbid fear of HIV or hepatitis. He explained in evidence that the psychotherapeutic measures designed to prevent PTSD were designed for a different kind of problem and would not have been helpful.

[54] In cross-examination Dr Rogers was pressed on the significance of his not knowing exactly what the pursuer was told at Ruchill during his five attendances there. He offered the view that it was not likely that the pursuer's particular concerns were discussed but he did not explain why he thought that to be so, other than the brevity of the relevant clinical notes. It was, as he said, difficult to know what had happened at Ruchill.

[55] The way in which Dr Fraser formulated the pursuer's illness was a mixture of anxiety, depression and post-traumatic symptoms, their primary cause being that the pursuer was told that the blood he had swallowed came from an individual with a high risk of HIV. When asked whether there was anything that could have been done to prevent that state of affairs he replied that, other than not swallowing the blood, if the pursuer had received a degree of support that would have mitigated the severity of the psychological shock and significantly reduced the prospect of depression. He confirmed that on the balance of probabilities the provision of support would have averted the development of the symptoms he had identified and added that the lack of support afforded to the pursuer had exacerbated his psychological shock. When asked what he meant by "support" he identified: recognition of how the pursuer was feeling, allowing the pursuer to discuss how he felt, and offering practical measures. Dr Fraser accepted that there was no literature on this sort of support. His opinion was founded on his experience and the literature on dealing with traumatic incidents. The NICE Guidelines recommended support. Its main advantage was that it prevented psychological symptoms developing from psychological shock. When shown "Traumatic Incidents in the Workplace" he said that in his view the sort of interventions described there would have prevented the development of the pursuer's depression. Employers should convey to employees the impression that they care. In the pursuer's experience the SPS did not care. If the SPS had demonstrated that it did care that would have made a difference. The pursuer's attitude to the SPS was not irrational. According to the pursuer there had been no contact until 6 weeks after the incident. He had been left to go the to Ruchill on his own initiative.

[56] In cross-examination Dr Fraser indicated that he would have expected someone to have met with the pursuer in the first 24 hours after the incident in order to assess how he was coping. Dr Fraser would have been happy for the desiderated support to be provided by an outside agency. A reference to his general practitioner would have been appropriate. Dr Fraser was asked if Dr Rogers had said that for any intervention to be effective, the counselling had to be given by someone with psychological training and an understanding of the risks of infection whether he would agree with that. In answer Dr Fraser said that he would. When asked in re-examination how he reconciled his evidence evidence-in in-chief that had the SPS provided support through the Barlinnie Care Team this would have made a difference with what he had accepted in cross, that to be effective counselling had to be delivered by someone with psychological training, Dr Fraser reformulated his position. He said that what the pursuer had required were two things: first, support from his employer and, second, specialised counselling on HIV. The second he got from Ruchill but he did not get support from his employer. If he had got that it would have prevented his symptoms progressing to the stage when he needed psychological counselling. He was distinguishing the position of those who have suffered trauma and those who have gone on to develop PTSD. Confusion between these two categories could be seen in the NICE Guidelines.

[57] In Dr Freeman's opinion, while he did not dispute (in the absence of any literature) that it might have some therapeutic benefit, the provision of "tea and sympathy" would not have made any difference to the outcome of the pursuer's case. Nor did he agree with Dr Rogers that information on the infection risk from a knowledgeable source coupled with psychological counselling would have been beneficial. Early psychological counselling, whoever delivered it, would not have done any good. There was nothing that could have been done whether in the form of low level counselling, "tea and sympathy" or anything else that would have made a difference.

The use of opinion evidence

[58] I have already touched on the purpose of opinion evidence and how it to be used by the court. I would propose at this point to say a little more.

[59] As appears from the above summary, two of the psychiatric experts support the pursuer's case, one does not. On the basis of a counting of heads and going with the majority the pursuer would succeed. On the basis of reliance on the pre-eminent expert, the defenders would succeed. Neither approach would be correct.

[60] A central issue in McTear v Imperial Tobacco Ltd 2005 2SC 1 was one of medical causation: whether the pursuer's deceased husband had contracted lung cancer by reason of his having smoked particular cigarettes. In the course of his opinion, supra at paragraphs 5.2 to 5.11, Lord Nimmo Smith records submissions made to him by the defenders' counsel, under reference to citation from authority, on the law applicable to expert witnesses. At paragraph 5.17 of his opinion Lord Nimmo Smith indicates that he accepted senior counsel's submissions. Their focus had been on the use that an expert is entitled to make of published material, but underlying the submissions was the law which prescribed the proper function of opinion evidence. Counsel's submissions included the following passages:

"[5.3] In Lewis, Manual of the Law of Evidence in Scotland, it was stated (pp 47-49):

'The term opinion evidence is generally used in the law of evidence in a technical sense, and indicates a species of evidence conveniently described as testimony of experts and regarded as admissible in certain circumstances, the particular limits of which cannot be rigidly defined. Whenever the subject-matter of inquiry is of such a nature that special knowledge is required in order that it may be understood by the tribunal which has to decide on conflicting views, evidence is admissible of ex post facto opinions and theories formed by witnesses possessing peculiar knowledge or skill in the matter in question. The evidence of skilled witnesses or experts is admissible wherever the inquiry involves decision on facts of a technical or scientific nature. The tests of its relevancy are (1) that the opinion is based on the principles of some recognised craft or science in relation to which the witness may be cross-examined on his opinion, and (2) that the subject-matter of the opinion is not such that the tribunal is bound to take judicial notice of it.

The admission of evidence of this description is on the principle recognised in the practice of appointing assessors to sit with the Court in certain cases involving specialised knowledge .... The function of such assessors is to supply the judge with the technical or scientific knowledge necessary to enable him to understand and appreciate the evidence given by witnesses in regard to matters beyond the sphere of ordinary knowledge. Such an assessor is neither a judge nor a witness, and there is no obligation on the tribunal to accept his view.'

...

[5.5] In Davie v Magistrates of Edinburgh 1953 SC 34 a number of issues arose in relation to the expert evidence which had been led in that case. The Lord President (Lord Cooper) (p 40) rejected a submission that, where no counter evidence on the science in question had been adduced for the pursuer, the Court was bound to accept the conclusions of an expert witness for the defenders, saying that this view was 'contrary to the principles in accordance with which expert opinion evidence is admitted'. He went on to explain these principles, as follows:

'Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court .... Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.'

...

[5.6] Counsel ... also founded on a passage in the opinion of Lord Russell (p 42), who said, in rejecting a submission that the evidence of an expert witness required to be corroborated:

'The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science. If it appears to be based on a sufficiency of research directed accurately and relevantly to a particular issue and to be so supported as to convince a Court of its fundamental soundness and applicability to the particular issue, a Court is entitled, although not obliged, to accept it, even if unsupported by any corroborative expert opinion. Secondly the defenders argued that in the absence of any counter evidence of expert opinion in the science professed by [the expert witness for the defenders] the Court is bound to take his opinion as conclusive, and as decisive of the issue. I am clearly of opinion that that argument must be rejected as being contrary to the principles by which the rules of evidence are regulated, and as constituting an unwarrantable encroachment on the judicial function of the Court. I respectfully agree with your Lordship's observations on that topic and would only add to the authorities cited by your Lordship a reference to Lewis on Evidence (pp 47-49).'

...

[5.7] ... what was said in Davie v Magistrates of Edinburgh about the function of expert witnesses remains unaffected by any subsequent development in the law.

[5.8] Another textbook to which counsel made reference was Wilkinson, The Scottish Law of Evidence, pp 65 to 66, in which the author, under reference to the passage in the opinion of the Lord President in Davie which I have already quoted, stated:

'The point that Lord President Cooper was concerned to make is sometimes overlooked. The function of the expert is not to present ready-made conclusions but to provide the tribunal of fact with material on which it can reach its own conclusions. The decision on the various issues in the case, including the issues of fact in the resolution of which the expert may assist, is for the judge or jury. The expert must not usurp their function. On the basis of that perception, it has been said "a question is inadmissible if its purpose is to elicit an opinion on the actual issue before the court". The principle is reasonably clear and intelligible. Judges and juries have their functions and experts have theirs. The expert who crosses the line dividing these functions ceases to assist, and usurps. ... While court or jury are to be furnished with criteria on which to make their independent judgment it is clear that that judgment is to be applied to conclusions which experts have themselves reached. The court will inevitably want to know how the expert has applied the criteria to the facts in order to reach his conclusion. There is, therefore, much ground which both the expert and court or jury must traverse together. The problem of whether a particular question or piece of evidence transgresses unacceptably on the province of judge or jury does not admit of an easy answer.'

...

[5.11] In Dingley v Chief Constable, Strathclyde Police 2000 SC (HL) 77, 1998 SC 548, the Lord President (Lord Rodger of Earlsferry) at p 555 of the 1998 report referred to the opinion of the Lord President in Davie v Magistrates of Edinburgh, which he described as affording '[a]uthoritative guidance on the approach which a court should take to expert evidence'. After quoting the above passage, he said: 'Perhaps the essential point is that parties who come to court are entitled to the decision of a judicial tribunal. ... As Lord Cooper says, an oracular pronouncement will not do.'

Lord Rodger also said that the Lord Ordinary required to test the experts' evidence and, having done so, to use those parts which he accepted and apply them to the facts of the case. If he did not do so it must be inferred that he misdirected himself. Lord Prosser said (p 604):

'... the fact that a particular view was or is held by someone of great distinction, whether he is a witness or not, does not seem to me to give any particular weight to his view, if the reasons for his coming to that view are unexplained, or unconvincing. As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.'"

[61] Thus, neither numbers on the one side or particular distinction on the other can be determinative. In making his submissions on the role of the expert witness, Mr Milligan said that the expert should provide reasoning to allow the court to make its own assessment of the evidence. Simply asserting something and justifying it on the basis of experience is of little or no assistance. I agree. With these principles in mind I turn to how the issue on causation should be determined.

Discussion and decision

[62] Part of the history here is what might reasonably regarded as the slowness of what I have described as the managerial response to the pursuer's circumstances. By that I have in mind that the SPS very much left the pursuer to his own devices prior to the home visit by Mr Lamont and Mr McDonald in September 1997 and the first letter sent by Dawn Wardrop in November 1997. These contacts were made with a view to encouraging the pursuer back to work rather than, as Dr Freeman articulated it, acknowledging that something had happened. With hindsight, what was either a slow or absent managerial response may give grounds for criticism of the SPS. It certainly seems to have fuelled the pursuer's anger. However, as I have been at pains to stress and Mr Summers acknowledged, the pursuer's case, as pled and developed in evidence, is not of a managerial failure leading to pathological anger but of a therapeutic or prophylactic failure which led to a natural fear becoming a pathological fear. The complaint is that the SPS failed to provide "psychological first-aid" by a specified therapeutic mechanism: referral to the Barlinnie Care Team and the listening service it provided, as described by Alan Haughey.

[63] In my opinion the pursuer has failed to prove that but for the failure to refer him to the Barlinnie Care Team he would not have developed the depressive condition from which he suffers.

[64] Dr Freeman's evidence on the matter is not determinative. He explained (and I did not understand this to be controversial) that the current consensus, as expressed in the NICE Guidelines, is that early critical incident debriefing is not helpful and may be positively unhelpful in avoiding the development of PTSD. However, what Dr Rogers advocated was something different, it was counselling with a view to eradicating the pursuer's fears about hepatitis and HIV, the chief ingredients being education and information about the relevant blood borne illnesses, combined with information about the statistical probability or improbability of an individual acquiring the illness in a given set of circumstances. Dr Freeman expressed a firm opinion that there was nothing that could have been done whether in the form of low level counselling, "tea and sympathy" or anything else that would have made a difference in outcome for the pursuer but, as I have it noted, he was not asked to elaborate on the reasoning that underpinned that opinion. Therefore beyond underlining that the matter was controversial, Dr Freeman's evidence did not take me very far in determining whether or not the pursuer had made his case.

[65] Dr Rogers's approach assumes that there was a point when the pursuer could be effectively reassured in the sense of at least reducing his anxieties about blood borne infections to levels which would not drive him into depression. Agreeing with the defenders' submission on this point, I cannot be satisfied that this is so. Dr Rogers accepts that the pursuer was beyond any reassurance within weeks of the incident. The pursuer's testimony was eloquent of the strength of his beliefs and their persistence in the face of evidence to the contrary, including the beliefs that swallowing blood was worse than intravenous transmission, and that the hepatitis C virus could lie dormant in the body even after a negative test. His was, as Dr Rogers conceded, a very extreme reaction. Dr Rogers had not experienced a similar case. The pursuer was not reassured by Miss Cassidy and he was not reassured by the advice he must be taken to have received at Ruchill Hospital. I see it as a weakness in Dr Rogers's position that he maintains that the pursuer could be reassured when he does not know exactly what advice the pursuer received at Ruchill or how it was delivered. For all he knew everything he desiderated had been done at Ruchill but without allaying the pursuer's fears. Be that as it may, I simply do not understand why it might be that a member of the Barlinnie Care Team would have been more successful in eradicating the pursuer's fear of infection than the healthcare professionals have been.

[66] Dr Rogers's view that the pursuer's potentially morbid fears could be eradicated, that he could be reassured, has to be seen in the context of what he considered would have been necessary by way of effective counselling. The person providing the counselling would have to know about the risks of infection and have had psychological training. The intervention might require to be over a period of 8 weeks for the necessary anxiety reduction. That sort of counselling clearly was not available from members of the Barlinnie Care Team; they did not have the knowledge, they were not psychologically trained (at least I had no evidence to that effect), and they did not offer the intensive sort of intervention suggested by a programme lasting 8 weeks. In examination-in-chief Dr Rogers was shown "Traumatic Incidents in the Workplace". He was first asked whether what was described there would have been helpful. He agreed that it would in that this would have allowed anxieties to be picked up. He was then asked whether it would be "sufficient". Dr Rogers answered that, on the balance of probabilities, it would have been "helpful". Helpful is different from efficacious, as I understood Dr Rogers to appreciate. What I took him to be saying was that, contrary to Dr Freeman's opinion, early psychological intervention might have been successful in eliminating the crucial pathological feature which produced the pursuer's depression: his fear of infection provided that it was delivered by people who knew what they were talking about and had been psychologically trained. The service offered by the Barlinnie Care Team would have helped but would not have been sufficient on its own. That is not the pursuer's case. Dr Fraser appeared to agree with what Dr Rogers considered to have been necessary in order to address the pursuer's fears but then re-formulated his position in re-examination. The re-formulated position was that the pursuer required first, support from his employer and, second, specialised counselling on HIV. It may have been implicit in that answer that Dr Fraser was equiparating "support from his employer" with provision of the services on offer from the Barlinnie Care Team, although he did not say that in terms. However, again no reasoning was offered in support of that opinion or in support of the somewhat different opinion to the effect that "a degree of support" would have been sufficient to reduce the prospect of depression which Dr Fraser had given in evidence-in-chief. Dr Fraser conceded that there was no literature that supported his position. He supported it by "my experience". That took me no distance. What I am left with is Dr Rogers's opinion that a very different sort of counselling than was offered by the Barlinnie Care Team might have prevented the pursuer's depression. Even if that is taken to be correct, it does not follow that what the Barlinnie Care Team had to offer would have prevented the pursuer's depression.

[67] Putting much the same point slightly differently and reiterating what appears above in relation to breach of duty, in fact the pursuer received more or less the same care that he would have done had he been referred to the Barlinnie Care Team. . As Mr Milligan submitted, there was nowhere better placed to provide the appropriate advice than the clinic at Ruchill Hospital. The pursuer attended there within a day or two of the incident. He also attended his general practitioner within a few days and received a degree of emotional support there. Had the pursuer been referred to the Barlinnie Care Team a member would have listened to him and suggested that he saw his general practitioner, who would have then referred him on to Ruchill. There could never have been any question of the advice on the risks of infection which Dr Rogers considered had to be given to the pursuer being given by any other agency than the clinic at Ruchill. Certainly a member of the Barlinnie Care Team could not have provided such advice.

[68] Granted, had the pursuer been referred to the Barlinnie Care Team he might have received more "tea and sympathy" because a team member might have longer to talk than the health care professionals on whom the pursuer in fact attended. He might have met with the pursuer on a number of occasions, although that was not explored. Mr Haughey agreed with Mr Summers in cross-examination that he would have done all in his power to help but it was not made clear in evidence what that would have consisted of beyond "a cup of tea and a chat" to use the expression employed by Mr Summers. That would not have addressed the pursuer's fears and it would not have amounted to a recognition by management that something important had happened. I heard no evidence that gave me reasons for concluding that a cup of tea and a chat would have made any difference to the outcome of the pursuer's case where all other therapeutic interventions have been unsuccessful.

Conclusion

[69] The pursuer has failed to prove that any breach of the duty of care owed to him by the SPS has caused him injury. The defenders fall to be assoilzied.