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Cite as: [2003] ScotSC 54

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A213/99 Dundee, 4^th. November, 2003. Judgment

Sheriff Richard A. Davidson

In causa

Stanislau Laudanska

Pursuer

Against

The University of Abertay

Defenders

Act: Party

Alt: Henderson, Advocate; Messsrs. Thorntons, Solicitors.

The sheriff, having resumed consideration of the cause, refuses the motion for the pursuer to allow further amendment of the amended closed record, No.18 of process, in terms of the adjusted revised second minute of amendment for the pursuer, No.26 of process; finds the pursuer liable to the defenders in the expenses as taxed in relation to the perusal of various proposed minutes of amendment Nos 22, 23 and 26 of process and in relation to all procedure since 18^th. December, 2002, except insofar as previously decerned for; appoints the cause to the procedure roll of to determine further procedure.

NOTE

Statutes referred to:

The Prescription and Limitation (Scotland) Act, 1973

Section 17:-

"(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

(2) Subject to sub-section 3 below, and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after-

the date on which the injuries were sustained or, where the act or omission to

which the injuries were attributable was a continuing one, that date or the date

on which the act or omission ceased, whichever is the later; or

..................

In the computation of the period specified in subsection (2) above there shall be

disregarded any time during which the person who sustained the injuries was

under legal disability by reason of nonage or unsoundness of mind."

Section 19A:-

"(1) Where a person would be entitled but for any of the provisions of section 17, 18A

or 18B of this Act, to bring an action, the court may, if it seems to it equitable to

do so, allow him to bring the action notwithstanding that provision.

Section 22:-

"(1) In this part of this Act-

.............. 'personal injuries' includes any disease and any impairment of a

person's physical or mental condition."

Authorities referred to:

Alcock v Chief Constable of South Yorkshire Police [1992] 1A.C. 310.

Anderson v British Railways Board 1973 SLT (Nts) 20

Bourhill v Young 1942 SC (HL) 78

Campbell v North Lanarkshire Council 2000 SCLR 373

Coyle v National Coal Board 1959 SLT 114

Cross v Highlands and Islands Development Board 2001 SLT 1060

Fleming v Strathclyde Regional Council 1992 SLT 161

Fraser v State Hospitals Board for Scotland 2002 SLT 1051

Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455

Green v Argyll & Bute Council 2002 GWD 9-295

Griffin v George McLelland Holdings 1994 SLT 336

Hatton v Sutherland [2002] 2 All ER 1

Jamieson v Jamieson 1952 S.C. (H.L.) 44

Keen v Tayside Contracts 2003 SLT 500

Kelly v Holloway Brothers 1960 SLT (Nts) 65

Khorasandjiian v Bush [1993] 3 All ER 669

McCluskey v National Coal Board 1961 SLT 87

McGrattan v Renfrew District Council 1983 SLT 678

Mather v British Telecommunications plc 2001 SLT 325

Mazs v The Dairy Supply Co. Ltd. 1978 SLT 208

Miller v South of Scotland Electricity Board 1958 S.C. (H.L.) 20

Mowatt v Shore Porters Society 1965 SLT (Nts) 10

N.V. Devos Gebroeder v Sunderland 1990 SLT 473

Pompa's Trustees v Edinburgh Magistrates 1942 S.C. 119

Rorison v West Lothian Council 2000 SCLR 245

Walker v Northumberland County Council [1995] 1 All E.R. 736

White v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509; [1999] 2

AC 455

Text Books Considered:

1. A Pocket Guide to the ICD-10 Classification of Mental and Behavioural
Disorders: World Health Organisation
2. Sheriff Court Practice: Sheriff I.D. MacPhail QC; 2^nd Edition esp. paras 9-12, 9-33; 10-34; 10-40 and 10-41.
3. Prescription and Limitation of Actions : Professor D.M. Walker QC; 6^th.
Edition, esp pp.129-131.

I heard debate on 3^rd. March, 21^st. April and 30^th. May in relation to a proposed 37 page minute of amendment, No. 26 of process, which constituted the pursuer's third set of revisals of amendments, the court having granted her leave to lodge a minute of amendment on 18^th. December, 2002, under reservation of the defender's right to challenge the receipt of any amendment which might materialise. The defenders did indeed oppose both the receipt of the minute of amendment and any question of any further amendment of the existing pleadings, which are contained in the already amended closed record, No.18 of process, opposing the proposed minute of amendment in its entirety and, without prejudice to that generality, in a number of specified respects also. Having heard Miss Laudanska on her own behalf and counsel for the defenders, I have sustained the opposition to the motion and have refused to allow the proposed minute of amendment.

This is an unfortunate piece of litigation which has had an unfortunate procedural history. A warrant to cite was granted on 4^th. March, 1999 and sheriff officers effected service on the defenders on 5^th. March, 1999. At that stage, the pursuer was represented by solicitors but they were granted leave to withdraw from acting on 15^th. July, 1999, since which time it would appear that the pursuer has been unable to obtain alternative representation, though in the course of submissions she has spoken from time to time about receiving assistance from a legally qualified source, without identifying the source and without indicating any other position to the court than that she was representing herself, though she has complained at length about what she perceives as the iniquity of her having to do so. Although I cannot find an interlocutor closing the record, it appears that my colleague, Sheriff A.L. Stewart, QC., on 7^th. September, 1999, assigned a first diet of debate, without specifying the preliminary pleas to be debated, on 15^th. December, 1999. That was discharged on pursuer's motion and, of new, a debate was assigned for 8^th. March, 2000. On that date, on pursuer's motion, the diet was discharged and the pursuer was allowed to lodge a minute of amendment, which would appear to have been No.11 of process, notwithstanding the defenders' opposition thereto. Answers to the minute of amendment having been timeously lodged, the case was then sisted on pursuer's motion to enable her to apply for legal aid. Incredibly, the case then called on ten occasions between June, 2000 and August, 2001 before the defenders' motion to recall the sist was ultimately granted. The sist having been recalled, the pursuer was, once more, granted leave to amend and the cause was appointed to the procedure roll of 11^th. October, 2001. It would seem that a minute of amendment was produced and answered for the cause was then allowed to stumble through a further seven procedural callings while the pursuer advanced a variety of reasons for needing more time to adjust her minute of amendment until the case finally came before me on 4^th. June, 2002 when I allowed the record to be amended in terms of the pursuer's minute of amendment, No.11 of process and the defenders' answers, No.12 of process, all as adjusted by Nos.13, 15, 16, 17 & 18 of process, thereafter closing the record of new and ordaining the pursuer to lodge an amended closed record, which, notwithstanding the foregoing numbering, appears to have been designated No.18 of process. I assigned a debate on the defenders' preliminary plea for 3^rd. July, 2002 and continued consideration of a defence motion for expenses until the diet of debate.

On 3^rd. July, the debate called before my colleague, Sheriff Craig Caldwell, who, having heard from the pursuer and agent for the defenders, was persuaded to discharge the debate and allow leave to the pursuer once more to amend, assigning 29^th. August as a Rule 18 hearing. He made an award of expenses against the pursuer in respect of the abortive diet of debate. On two further occasions, time for lodging the minute of amendment was prorogated until, again, the case called before me on 19^th. September when I refused to allow further time for amendment, closed the record of new, and assigned a debate for 18^th. December. I also refused leave to appeal the interlocutor of that date.

The case called for debate before me on 18^th. December, 2002. On defenders' motion, I allowed their third plea in law to be dismissed. The pursuer, once more, sought leave to amend. Having heard her and the agent for the defenders, I granted leave to lodge a minute of amendment but assigned 20^th. January, 2003 as a hearing on whether the minute of amendment should be allowed to be received into process. That was adjourned until 12^th. February when I allowed a further seven days to adjust the minute of amendment and assigned 3^rd. March as a further hearing on the question whether the minute should be allowed to be received. I made a further finding in expenses against the pursuer in respect of the further abortive diet. On 3^rd. March, 21^st. April and 30^th. May, 2003, I heard submissions from Mr. Henderson, Advocate for the defenders, and from the pursuer personally. Mr. Henderson's principal submission was to the effect that I should refuse to allow the minute of amendment.

I have narrated the procedural history at length as that history itself inevitably has a bearing on the outcome of a motion to allow late amendment. Suffice to say the foregoing history appears to me to demonstrate that the pursuer was given every opportunity to get her pleadings into order over a very substantial period of time.

While it may be unfortunate that she has not had the benefit of legal representation since 1999, it is not for me to explore the reasons for that. I am bound to observe, however, that the contents of the proposed minute, No. 26 of process, do not contain much material that ought not to have been available in 1999 and which therefore ought to have been known to her then solicitors. Insofar as the contents of the proposed minute may be relevant, it is hard to see why the bulk of the material it contains could not have appeared in the Initial Writ. The pursuer made no effort to explain that state of affairs and I make no criticism of her then solicitors but simply make the point that no good explanation for the delays which have occurred since was advanced.

Counsel took me through the foregoing history of the litigation and made the point that there had now been four years of pointless procedure the bulk of which had been at the instance of the pursuer. It was undesirable and contrary to the interests of justice to permit a minute of amendment, which had the potential to give rise to a further year of adjustment, to be received after such a length of time. It would lead to a need for substantial further investigation of issues arguably stretching back to the commencement of the pursuer's employment with the defenders in 1972 and the defenders would suffer expense and prejudice in being required to investigate events stretching back over a thirty year period. While it was hard to be specific, the likelihood was that some of the potential key witnesses would be dead and others would simply have no recollection of the events. Documents which might have been available at an earlier stage might well have been destroyed. And what would be the point in all this further investigation when the pursuer had still not stated a relevant case in law ?

Prejudice to the defenders was one of the four heads under which counsel indicated that he intended to oppose the minute of amendment being allowed to be received. The others were causation - how could she hope to recover damages; relevancy; and time-bar. Inevitably there was a degree of overlap among these heads, he said.

What was now proposed in the minute, No.26 of process, was substantially a complete re-writing of the cause and by no stretch merely an elaboration on the existing pleadings. He particularly emphasised the difference between the present and proposed fifth articles of condescendence in relation to the alleged consequences she now intended to claim to have sustained which she attributed to the defenders' fault and negligence and breach of contract. She now seemed to be proposing to attribute diagnoses of myalgic encephalomyelitis ("ME"), ischaemic heart disease (angina), colitis, high cholesterol and back pain to her stressful working conditions. She also proposed to make what I can only describe as inspecific reference to "depression." Counsel drew my attention to the decision in Rorison v West Lothian Council & Anr 2000 SCLR 245 and submitted that that was authority for the proposition that there was a need to aver the onset of a recognised psychiatric illness caused by stressful conditions at work as a prerequisite to recovery of damages. The case is certainly persuasive authority for that proposition though, apart from the reference to White v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509, I cannot find in the judgment of Lord Reed any particular reason why a recognised psychiatric illness should be an essential prerequisite of recovery if loss be sustained as a consequence of negligence and it seems to me to be eminently foreseeable that if someone in a supervisory position negligently accuses an employee over whom he has supervisory power of, for example, misconduct or incompetence, that that employee might suffer a sufficient degree of stress to result in absence from work. In any event, Lord Reed makes it clear that the decision is not authoritative where it is averred that the harm was the result of a deliberate course of conduct nor where the harm averred to have been suffered includes physical illness.

Counsel posed the question when should an employer recognise that he is causing ill health. As the present claim stood, in his submission it was a claim for damages for causing psychological difficulties. In terms of its aetiology and development, as counsel put it, one can see that on a charitable view of the existing pleadings, the pursuer was offering to prove that trouble at work led to her suffering psychological difficulties. There was however in the existing pleadings no reference to her suffering any recognised psychiatric illness nor to receiving any psychiatric treatment.

The pursuer's pleadings as contained in the record, No.18 of process, which she now seeks to amend, insofar as they are comprehensible, seem to me on balance to consist of averments alleging a deliberate course of conduct against her, as opposed to negligent conduct. While I accept that there is no reference to her having been diagnosed as suffering from any recognised psychiatric condition, in the current edition of ICD-10, the World Health Organisation's classification of mental and behavioural disorders, phobic anxiety disorder, generalised anxiety disorder and mixed anxiety and depressive disorder are all recognised conditions, and while the pursuer undoubtedly faces formidable obstacles of proof, as a matter of relevancy I am to be convinced that these are circumstances to which the decision in Rorison, on the hypothesis that that decision is correct, should automatically be followed. In any event, the pursuer does aver that she has sustained physical illness as a consequence of the defenders' fault and negligence and it is clear beyond peradventure that Section 22 of the Prescription and Limitation (Scotland) Act, in defining personal injuries includes "any disease and any impairment of a person's physical or mental condition," and therefore would include, for example, ischaemic heart disease caused by stressful conditions in the workplace, and it is trite that where the result of a delict a person suffers a physical illness then there would be a right normally to recover damages.

The proposed new fifth article of condescendence, submitted counsel, would open a veritable hornets' nest were it to be allowed. The pursuer wished to be allowed to aver that she had suffered 'depression,' that, of itself, being an ill-defined word which had properly caused Lord Reed sufficient concern to conclude that, on its own, it did not disclose a recognised psychiatric condition as a matter of relevancy and fair notice. She also intended to aver that she had suffered from a number of physical illnesses for which stress was the aetiology, though all that she actually averred was her belief, which was insufficient especially where no factual basis for the belief was averred. There was no reference to medical treatment or medical opinion, until her proposed new averments about ME. She proposed to aver that her general practitioner had diagnosed depression and that she had been referred to a "specialist" at Ninewells Hospital, Dundee, a Dr. R. Davies, who "confirmed the likelihood of ME."

She goes on to propose to aver complaining of chest pains, also investigated at Ninewells, but she does not propose to aver by whom, confirming "the presence of angina." She apparently also proposes to make averments about fatigue, abdominal pains, colitis, diagnosed by a Dr. Mills, also at Ninewells, hypertension and arthritis. Eventually, at page 35 of the proposed Minute of Amendment, she says, "All her physical medical conditions and symptoms, except for the cancer, are known to have a stress-related aetiology, and the pursuer attributes all of these to the unwarranted stresses she was subjected to at work from 1989 to 1996 in particular." I see no proposed averment, however, that anyone properly qualified to make the assessment makes the same attribution and it seems to me that it will simply not do as a matter of proper pleading which should, as a matter of propriety, have some factual basis, for a pursuer to proceed on her own attribution of the causes of her complex medical condition as opposed to that opinion being properly grounded in medical expertise. In the absence to reference to such expertise, it is my opinion that this entire passage is irrelevant and, were the minute otherwise to be permitted, then I would not allow the proposed new article five of condescendence.

Counsel said that, were this minute of amendment to be allowed, the defenders would require to employ something of the order of six or seven medical experts. They would require to have the pursuer examined by a consultant psychiatrist, by a consultant physician with expertise in ME, by a general surgeon or physician who was an expert in abdominal pain, an orthopaedic surgeon to explore the cause of back problems and a rheumatologist. In this respect time, i.e. its passage, was an issue. What records would now be recoverable ? All the medical conditions alleged to have contributed to the pursuer's early retirement would require what counsel described as "retrospective assessment," which would be a peculiarly difficult task for a medical expert to undertake even with good contemporaneous records.

Counsel submitted that the pursuer was not offering in any normal sense to prove that she had sustained loss and damage as a consequence of fault on the part of the defenders or anyone for whom they were vicariously liable. This was not an inquiry - it was supposed to be a reparation action where the onus of proof would rest with the pursuer and, in particular, the onus of proof of loss and its connection causally with any act or default of the part of the defenders. In the absence of any offer to prove such connected loss, the minute of amendment, insofar as it purported to rewrite the pursuer's pleadings, was no more relevant than the pleadings as they presently stood.

If the pursuer's pleadings amounted to anything, they were habile to demonstrate an action for damages for stress caused by an unhappy working environment. As matters presently stood and as proposed, there would only be one sum craved and there were only two potentially relevant pleas-in-law relating to liability, one habile to a reparation action based on negligence on a vicarious liability basis, in the existing record and one proposed, seeking damages from the defenders' "and said colleges" for breaches of her contract of employment. However, said counsel, there were claims in the minute of amendment, subsequent to the termination of her employment, to the effect that she has "suffered multiple invasions of privacy, primarily illegal remote accessing of her un-networked home PC and thefts of documents from her home, the purpose of a considerable number of which, the pursuer believes and avers, has been to frustrate her success in this action. The name of one individual, until early 2000 a technician with the defenders, has appeared in the record of occasions of remote accessing of the pursuer's PC, namely Steven Roud. The pursuer believes and avers that these occurrences have been in some way instigated by the defenders and/or their associates."

These pleadings, quite rightly, came in for severe criticism from counsel in a number of respects. In the first place, he said, these were averments of a course of criminal conduct in respect of which it had been repeatedly stressed that proper specification of times, places and methods was essential to give proper notice to the defenders and that level of specification was entirely lacking. Further, there was no averment that these criminal acts had been reported to the police nor of any action being taken on such reporting. Thirdly, esto there was any merit in the assertion, there was no averment detailing the loss sustained as a consequence. Fourthly, and running in tandem with the last observation, there was neither crave nor plea-in-law which would support a claim for damages for loss sustained as a consequence of deliberate criminal activity. Fifthly, there was no specification, beyond the vague reference to Steven Road, properly setting out the alleged connection between this illegal behaviour and the defenders. It was unacceptable that the defenders' alleged involvement in this behaviour was based on nothing more than the pursuer's belief. The allegation that the defenders would instigate a course of criminal conduct against her was a scandalous one and should be struck out on that basis. In any event, it was unclear to whom the pursuer intended to refer when she made reference to the defenders' "associates."

Turning then to the issue to limitation, counsel submitted, rather loosely if I have noted him correctly, that what the pursuer was now seeking to do, some four years after the initiation of the proceedings and, as he put it, hence my observation, "some years" after the alleged wrong was committed, was to introduce new grounds of fault. I appear to be left to draw the inference that "some years" means more than four. As I understand the law, an obligation arising out of a contract would normally subsist for a period of five years, having regard to the provisions of section 6 of the Prescription and Limitation (Scotland) Act, 1973, as amended, but that, nonethelesss, Section 17 of that Act applies to any action where the damages claimed consist of or include damages in respect of personal injuries, and any such action must be commenced within three years of the date on which the injuries were sustained. Section 22 provides that "personal injuries" includes any disease and any impairment of a person's physical or mental condition. In the sphere of amendments, where amendment to an existing cause is proposed following the expiry of a statutory limitation against the commencement of new actions, the principles as laid down in Pompa's Trs v Edinburgh Magistrates 1942 S.C. 119 continue to be regarded as sound. What a pursuer is not permitted to do, by amendment, is substitute the right defender for the wrong defender, cure a radical incompetence in his action, nor change the basis of his case - see Sheriff Court Practice; I.D. MacPhail; 2^nd. Edition at para. 10-34 - and those principles have been followed through a long tract of authority in which the distinction has repeatedly been drawn between on the one hand attempting to make a fundamental change in the factual content of the mechanism of the accident or circumstances giving rise to injury in the broadest sense of that word and amendment which is no more than an elaboration on the existing case, and much judicial ink has been spilt in determining on which side of the divide a given proposed amendment falls. In the present case, it was counsel's submission that the proposed introduction of a case seeking damages for personal injuries based on the breach of a term of the pursuer's contract of employment would be wholly out of time i.e. beyond the three year limitation period, and that was without prejudice to the issue whether the averments of breach of contract were well founded. It was a new basis altogether for her claim which had never been previously canvassed and therefore now fell foul of the time limit. In any event, it was difficult to discern what she was averring the contractual position was. In the proposed new 4^th. article of condescendence, the pursuer made reference to both express and implied terms of her contract of employment. Her employment terminated in November, 1996. Any obligation arising out of it prescribed in November, 2001. Any claim under it involving personal injuries was subject to limitation from November, 1999. He referred me to the judgment in N.V. Devos Gebroeder v Sunderland 1990 SLT 473. His submission was that all reference to any case grounded upon any alleged breach of contract should be disallowed and excised from the proposed minute of amendment if it were otherwise to be allowed.

He then returned to what he described as the series of discrete claims for various ailments. Each and all of these were time-barred, he submitted. Angina appeared to have been first diagnosed, according to the proposed pleadings, in 1993. There had been prior reference to angina but this had been in the background rather than being said to have been caused by any action on the part of the defenders. The same was true of ME and colitis. Now what was proposed was that the defenders should be held accountable for causing each of these conditions. In each case, having regard to the averments about onset of each of these conditions in the proposed minute of amendment, each would be time-barred.

Counsel said that his major submission remained that, in the minute of amendment as proposed, there was nothing which would be likely to have the effect of getting the pursuer to a proof or proof before answer. There had been no successful stress at work case in Scotland. There had, however, been a number of unsuccessful ones. There was a developing body of case law requiring stringency in pleading relevant cases. He referred to Cross v Highlands & Islands Development Board 2001 SLT 1060, a stress at work case where the "complainer" had died, giving rise thus to significant evidential problems, whatever else. He further referred to Hatton v Sutherland [2002] 2 All ER 1. This, he said, was an important persuasive authority from the Court of Appeal in England arising out of four conjoined appeals, where damages were sought on the basis of an employer's alleged failure to take reasonable care to protect an employee from the foreseeable risk of danger to health caused by stress at work. Two of the claimants were teachers; a third was a local authority administration assistant and the fourth was a factory process worker. It was held that there were no special control mechanisms applying to claims for psychiatric or physical illness or injury arising from the stress of doing the work that the employee was required to do. The ordinary principles of employer's liability applied. The threshold question was whether the particular kind of harm - an injury to health as distinct from occupational stress - which was attributable to stress as work, as distinct from other factors, to the particular employee, was foreseeable. Foreseeability depended upon what the employer knew or ought to have known about the particular employee. "An employer was usually entitled to assume that the employee could withstand the normal pressures of the job unless he knew of some particular problem or vulnerability."

Factors likely to be relevant in answering the threshold question included the nature and extent of the work done by the employee and signs from the employee of impending harm to health. The employer was generally entitled to take what he was told by his employee at face value. He did not have to make searching enquiries or consult the employee's medical advisers. "The employer would only be in breach of duty if he had failed to take the steps which were reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which might occur, the costs and practicability of preventing it and the justifications for running the risk." The assessment of damages would take account of any existing order or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event.

All four claimants were said to have suffered psychiatric illness caused by stress at work. I observe, however, looking at the detail of the four claimants, that they appear to have suffered from a series of both physical and psychiatric illnesses, some of which are not more specifically described than as being "a nervous breakdown." In my opinion, the judgment of the Court of Appeal pays more attention to the general nature of the illness than whether it is capable of categorisation as a recognised psychiatric illness and I can see no particular merit in a claim relating to alleged stress at work in being unnecessarily prescriptive about the nature of the illness sustained provided it is causally connected to an act of delict and is more than a short term emotional reaction to such stress. Miss Donoghue, after all, is said to have sustained both shock and revulsion, which might reasonably be categorised as psychological conditions, as well as severe gastro-enteritis, at the sight of the snail emanating from the ginger beer bottle after she had already consumed some of its contents from the iced drink she was in the course of concocting. The Court of Appeal also pay much more regard to the difficult issue of foreseeability and come to the conclusion, which I have to say I find attractive and logical, that foreseeability depended upon what the employer knew or ought reasonably to have known about the individual employee and whether harm to that employee from stress at work was foreseeable, though I do observe that in some of the other cases which I will come to consider, the content and level of workload generally seem to have influenced the outcome - see esp. Walker v Northumberland County Council (infra). The point was made in the judgment of the Court of Appeal that causing a mental disorder is harder to foresee than causing a physical one and that an employer was usually entitled to assume that the employee could withstand the normal pressures of his job unless he, the employer, was aware of some particular problem or vulnerability. There were no occupations which should be regarded as intrinsically dangerous to mental health. Factors likely to be relevant in answering the threshold question included the nature and the extent of the work done by the employee, and signs from the employee of impending harm to health. The employer did not have to make searching enquiries but was entitled generally to treat information from his employee at face value. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work had to be plain enough for any reasonable employer to realise that he should do something about it. The employer would only be in breach if he had failed to take the steps which were reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which might occur, the costs and practicability of preventing it and the justifications for running the risk. An employer could only be expected to take steps which would do some good and the court was likely to need expert evidence as to what might be required, but, generally, an employer who offered a confidential advice service, with referral to appropriate counselling or treatment services, was unlikely to be found in breach of a duty of care. If the only reasonable or effective step open to the employer would be to terminate the employment of the individual, the employer would not be in breach of duty in allowing a willing employee to continue in the job.

Counsel directed my attention to a number of other passages in the judgment but I have confined myself to setting out what seemed to me to be the main points of principle the judgment raises. Having regard to its content, he made the point that there were no averments in the minute of amendment effectively addressing the issues raised about foreseeability. There was nothing to suggest that she complained to anyone in an appropriate position that she was finding her work difficult to cope with or that she was suffering from stress, and the illnesses she had suffered from prima facie had organic causes which would not have alerted an employer to suspect stress at work as an operative factor. In the absence of relevant averments about foreseeability, all the averments about the various illness said to owe their derivation to stressful working conditions were irrelevant.

Counsel then turned to the curious averments to be found at page 2 of the Minute of Amendment, from line 19 onwards, where the pursuer proposed to aver that:-

" Though the pursuer had, in the main, a good working relationship with Mr. Leveson (her then head of department), from this early point in her employment with the defenders, she began to experience a range of acts and omissions on the part of the employees of the defenders which ranged from blatantly discriminatory treatment to bullying, harassment and victimisation on a serious scale for which the American and European term 'mobbing' serves as a catch-all. The pursuer believes and avers that, because these were of such an overt and persistent nature over the period from 1989 to 1992, they were clearly indicative of a systematic and vindictive campaign against the pursuer and that this was orchestrated at senior management level. They continued, after Dr. Cumming's retirement in 1992, usually in a more covert form and primarily at the level of her department/school. Further, in the course of attempting to defend herself, particularly in relation to the disciplinary action taken against her, the pursuer doubtless took on the role of whistleblower, and the defenders, she believes, treated her in ways experienced by many whistleblowers."

Not unreasonably, counsel complained vigorously about the serious nature of these allegations made without a hint of specification. What one sees, he submitted, is a series of complaints when she found herself to be under stress but no averments that the controlling mind of the defenders knew or ought to have known that she was under stress likely to cause her harm if continued nor any averments as to what reasonable care they might have taken to prevent any breach of any duty to her. It would be fair to add that there is neither an existing or proposed plea-in-law directed to a direct responsibility on the part of the defenders arising out of this "conspiracy" as opposed to the plea asserting vicarious liability. Had there been reference in the pleadings to a medical report fixing them with knowledge of her stress related difficulties, that might have made a difference but no medical certificate exhibited to the defenders ever suggested anything other than that the pursuer would be able to return to work. If anything, it appeared that there were other sources of stress in her life and esto she had suffered from stress, there was no particular reason to consider that these factors had not been the main cause.

In any event, bland inspecific averments of harassment and bullying were unacceptable. The defenders did not know when, where, by whom or in what form the pursuer claimed to have been harassed or bullied. If, as appeared to be suggested by the references to "systematic" and "orchestrated," what was being suggested was that there was some kind of conspiracy against her, then she had to specify who was involved. By inference, Dr. Cumming might have been but it was by no means clear who else was alleged to have participated and an individual could not conspire on his own. There was a lack of fair notice.

In summary, there were no averments from which it could be established that the defenders should have foreseen that the pursuer would be harmed by stress at work whether as a result of overwork or any deliberate policy against her interests nor was there any averment as to what the defenders should have done to prevent her suffering such harm. The Minute of Amendment in its entirety should be refused.

Without, I trust, being in any way unfair to the defenders, I expres sed, not for the first time, to the pursuer my concerns about her health and about her lack of qualified legal representation given the difficult and unusual features of the claim she was attempting to pursue. She maintained that she had no choice but to be a party litigant and further maintained that I had no need to be concerned about her mental health. I do not consider it would have been proper in the circumstances to go further but I retain significant reservations about her fitness to conduct these proceedings on her own behalf.

She maintained, in any event, that the Minute of Amendment should be allowed. She submitted that its contents were "relevant to the action raised prior to the expiry of the triennium." Her explanation for attempting to amend at this stage she characterised as her "perceived dilatoriness." She accepted that the action was "only just raised in time" but that the delay in properly elaborating the averments since then was due to "compelling extenuating circumstances." These appeared to include a fracture of her right wrist in 1996 which she alleged rendered her disabled until the end of 1997. Thereafter she alleged that she had suffered "major tragedy," claiming to have been "victimised in a most heinous fashion with major effects on my life." She asserted that the "consequences were catastrophic reputation loss," and that she suffered trauma almost every day over a three year period. She had complained both to the police and to the Justice Minister and some investigation had taken place leading to "secret proceedings in the police cells at Dundee Sheriff Court," which she asserted had a "Russian element." She claimed that she was "pornographically victimised," explaining that she was a Russian as well as German linguist and that her former long term boyfriend had been a friend of President Vladimir Putin. All this had "severely affected my actions" and explained the constant delays. This was compounded by the fact that the block of flats in which she used to live was scheduled for demolition and she was the last tenant to leave, suffering from two housebreakings and being "mugged, threatened and harassed by local youths." As an explanation for the delay in progressing the litigation it was undoubtedly novel but regrettably suggested either that the pursuer's life was continuing to be one full of stressful incidents or, alternatively, that she was ill. She is, however, entitled to the presumption of sanity and, having raised the issue of her health with her and having been told that she had consulted a psychiatrist and that she was not presently suffering from any mental illness, I felt unable to do anything further to resolve the question in my mind as to whether what I was hearing was the product of a disturbed mind.

She then submitted that, on the basis of the decision in Griffin v George McLelland Holdings 1994 SLT 336, I should exercise discretion in her favour in terms of Section 19A of the Prescription and Limitation (Scotland) Act, 1973, as amended. As I understand the law, in relation to whether a minute of amendment should be allowed after the expiry of a period of limitation, Section 19A would only have any application if, by amendment, a pursuer sought to add an additional defender or sought to substitute a new defender for the original one, neither of which situations pertain here --see MacPhail, Sheriff Court Practice at paras 10-40 and 10-41. Griffin is a case where the pursuer was diagnosed as suffering from pulmonary fibrosis caused by exposure to asbestos in an employment many years earlier where the company by whom she had been employed had been struck off the Register of Companies leading to the need for a petition for its restoration before proceedings could be served, after the expiry of three years from diagnosis, leading to a successful invocation in these patently difficult circumstances of permission for the late initiation of this new action. Insofar as the case is of any relevance to the present, and I remain unconvinced that it has any relevance, it relates to the start date for the triennium rather than the justification offered in support of the exercise of the discretion section 19A confers on the court. As I read Lord Mayfield's judgment, there appeared to be no issue about the date when the pursuer was diagnosed as suffering from pulmonary fibrosis caused by asbestos being the date from which the three year period should run. In the present case, in the record number 18 of process, which contains the present pleadings, Art 2 of condescendence contains averments which state in terms that the pursuer suffered "a whole series of discriminatory, victimising, bullying, harassing, excluding and other damaging behaviour from 1977 to 1996." The question is begged, and no argument was addressed to me on the topic, whether that is to be regarded, in the language of Section 17(2)(a) of the 1973 Act, as a continuing act, in which event 6^th. March, 1996 would be the prime candidate, being the last date, as I understand it, on which the pursuer avers she was subject to harassment, for the start date for the running of the triennium. If what is alleged is a continuing act, that date would still be the start date notwithstanding that, inter alia, the pursuer avers that there was specific conduct on the part of a Dr. Hotho in June, 1994 which she claims "led to a reversal of the good post-operative recovery she had been making....the stress and distress of that incident caused a lowering of her immunity and led to her having to be re-admitted to hospital twice with infection problems." If on the other hand each incident should be regarded as a separate incident, then there should be a series of craves for each and there would be a corresponding series of start dates for the running of triennia. It is perhaps in the nature of a claim for stress related illness, which the literature suggests is likely to be caused by an accumulation of stressful events, particularly when the stress is alleged to be caused by a deliberate course of conduct, that the course of conduct should be regarded as a continuing act. In those pleadings, the pursuer says two things which seem to me to support, at least partially, the notion of a continuing act, namely, in Art. 4 of Condescendence at page 14 of the Record, having said that from 1990 onwards she developed a range of stress related medical conditions:-

" None of her medical conditions, however, individually, caused her to become so ill that she was forced to retire on grounds of ill health. It was ultimately the further stresses suffered in March 1996, the pursuer's inability to face any more stress of this nature, and the further exacerbations she suffered as a result of the events of March, 1996, and the failure of the pursuer to recover from these, that additively (sic) led to her being not able to 'take any more.' When in May, 1996, she had failed to recover, on medical advice, she began the ill-health retirement process, and retired on 30^th. September, 1996 at the age of 50."

And in Art 7 at page 16,

" The pursuer is of the firm belief that the unwarranted stresses and distress she suffered in her employment with the defenders, particularly from 1989 onwards, led to her developing medical problems and conditions which, by mid-1996, cumulatively rendered the pursuer unfit for further employment with the defenders and [led] (sic) to her ill-health retirement in September 1996, at age 50."

It might be argued that these two passages are not consistent, but I am not at this stage considering the relevancy of the pleadings as contained in the Amended Closed Record, No. 18 of process, but whether these pleadings therein contained should be allowed to be amended. Looked at generously, broadly both appear to be attempting to convey the notion of a continuing act ending on 6^th. March, 1996, as counsel submitted, with the various medical conditions said, in terms, not individually to be such as would lead to the pursuer not being able to continue in her employment but to having that effect cumulatively. That now has to be contrasted with what is proposed in the Minute of Amendment, No. 26 of process.

In the first place it is apt to notice that Articles 2 - 9 of Condescendence are to be deleted in their entirety. Articles 2 to 9 take up 17 of the 18 pages of the Record, No.18 of process. Those 17 pages of pleadings would be replaced by 36. On a simple arithmetical approach, it can be inferred that the proposed amendment is pretty radical. The proposed new Art 2 manages to get to its 10^th. paragraph, after eight pages of averments, before there is any mention of the word "stress," and the alleged cause of the stress appears to be being said to be a lack of support in response to criticism. The first nine paragraphs contain averments which appear to me to be averments of unfair treatment which might amount to discrimination but in the absence of any suggestion of any such discrimination being on the grounds of sex, race or creed, it is difficult to see what legal remedy there may be for the pursuer, unless the defenders can be said to have acted in breach of the contract of employment. There appears to be nothing in paragraphs 11 or 12 that relates alleged misbehaviour on the part of employees of the defenders to any stress related illness sustained by the defender and the next reference to illness comes towards the end of the proposed 13^th. paragraph where, in connection with an allegedly unfairly conducted disciplinary hearing, the pursuer claims that she required to be prescribed beta-blockers to get her through it and, subsequent to it, states that she went off work for six months. There do not appear to be any averments as to why she required to be prescribed beta-blockers nor as to the illness from which she suffered for six months on the conclusion of the disciplinary hearing.

Paragraph 14 makes averments about "intimidation" in connection with disciplinary proceedings but does not make it clear what the effect of any such intimidation was on the pursuer nor how any act of intimidation gives rise to any right to damages for wrongfully inducing any stress-related illness. Nothing in the factual averments in this paragraph appears in any event to amount to intimidation, using the word in its ordinary English meaning. Similarly, paragraph 15 alleges a breach of the duty of confidentiality on the part of the defenders towards the pursuer but it is unclear how this impinges on a claim for damages for stress-related illness.

In paragraph 16, the pursuer avers that the threat of a transfer of duties "shook and upset her." She avers that this was a deliberate act intended to induce her to resign. Being shaken and upset is something rather different from suffering from a stress-related illness. Prima facie the averments do not set up any circumstances from which a claim for damages for personal injuries could arise. Similarly, paragraph 17 contains averments of harassment caused by an unusually early request for information leading the pursuer to believe it was part of a process of setting her up for dismissal, but again there is no averment properly connecting this alleged state of fact with any delictual loss.

Paragraph 18 at last contains some averments which might be germane to establishing a degree of foreseeability on the part of the defenders following the imposition of additional teaching duties, for it is averred that a complaint was made to them that the pursuer was likely to suffer adverse effects from this additional burden, as she saw it. There are, however, no specific averments that she did suffer any harm from this alteration to her workload.

I have some difficulty in comprehending paragraph 19. The complaint seems to be that the report to the defenders' Board of Governors from the disciplinary hearing involving the pursuer was both inaccurate and deliberately distorted, allegedly for the purpose of casting the pursuer in an "even more negative" light. But, again, it is not clear what harm this caused the pursuer. Nor is it clear what action she took at the time to have the report declared to be inaccurate. In paragraph 20, she then goes on to complain about the unfairness of the Board of Governors in rejecting her appeal and accusing them of a lack of impartiality. But it appears that the Appeals Committee considered the evidence and, apart from her dissatisfaction with the outcome, it is hard to see any averment from which it could be concluded that the Committee had acted impartially. In any event, again, there are no particular averments to connect this behaviour with any loss sustained by the pursuer by way of suffering personal injuries. In Paragraph 21, she goes on to complain about the failure of the Committee to follow its own rules and to issue findings but, again, it is impossible to see how this alleged failure is habile to a claim for damages for personal injuries.

In paragraph 22, she alleges a conspiracy between the defenders and HM Inspectorate (I presume of Schools and Higher Education but that is not specified) and appears to blame the defenders for being the subject of an inspection at short notice. She does say she missed the inspection as a result of the renewal of her ill health but she does not say that the threat of this inspection affected her health nor why that should be considered to be the fault of the defenders.

In Paragraph 23, she makes averments about unfair criticism of her work and unfair accusations of unfairness in her assessment of the work of students, which she says were unfounded. She avers that in at least one instance, there was an attempt to fabricate evidence in support of this. She does aver that she was "considerably stressed" by this instance of "dirty tricks being used in an attempt to incriminate her, and by the allegation of unfairness in assessing students, especially at a time when all the signs were that the defenders were attempting to secure her departure from the university." These averments may be relevant to a claim for damages caused by a stress related illness.

In paragraph 24, she also avers that she was caused "much stress and upset" by her perception, which appears to be no more than supposition, that there was a deliberate policy to delay purchasing course materials for the language courses she was teaching with the intention of making her look inefficient or inadequate. Theoretically, these averments may be relevant.

In paragraph 25 she alleges what amounts to discrimination, as she perceives it, on account of the defenders' decision to appoint a senior lecturer in French and Spanish and not to appoint her with her specialties in German and Russian as a senior lecturer. There are no averments as to what harm or loss she sustained as a result and, in any event, it is difficult to see what fault there might have been on the part of the defenders in following the course of action averred by the pursuer. If you want a senior lecturer in French and Spanish why would you consider a lecturer in German and Russian for the post ?

Paragraph 26 goes well beyond verging on the ridiculous.

She avers having been caused "distress" by the facts, insofar as they can be so described, averred in Paragraph 27. While the normal dictionary definition of "distress" is "mental pain," in my opinion it would normally be used in the context of a temporary phenomenon to which the de minimis principle might reasonably be applied. In any event, the averments in support of this alleged condition amount to little more than minor affronts.

Paragraph 28 again seems to me to contain averments of little more than minor affronts and while it is averred that these made her "very unhappy" there is no averment that they made her ill. What is averred in Paragraph 29 has the potential to be a more significant affront but she does not aver that she suffered any ill health consequent upon it. In paragraph 30, the complaint is of being unappreciated and undervalued, a not uncommon complaint on the part of employees, but unless it was of sufficient substance to amount to a breach the contract of employment, it is not clear to me that there is any legal remedy for these conditions. In any event, she avers that the complaints arising out of what she perceived to be unfair treatment were taken up by her union and resulted in a settlement of £700, which would suggest that a plea in bar in relation to any further claim arising in this context might have been arguable, though that was not argued and there is no such plea.

Paragraph 31 contains averments habile to a claim for damages for work related stress, as does paragraph 32.

It is not evident that there was any deliberate failure on the part of the defenders, taking the pursuer's averments at face value, in relation to Paragraph 33. In any event, the pursuer does not aver any ill health or other damage resultant upon the alleged failures.

While paragraph 34 might contain averments relevant to cases under the Health and Safety (Display Screen Equipment) Regulations, 1992 and the Provision and Use of Work Equipment Regulations, 1992, there are no averments setting out any breach of duty under either set of regualtions nor are there any concomitant pleas-in-law and there is, of course, only a single crave for damages. These averments are, accordingly, irrelevant and any attempt to introduce a new case based on the alleged breach of any such Regulation would be time-barred.

Paragraph 35 does not amount to more than another gripe by a dissatisfied employee and no relevant claim is said to have arisen from the alleged behaviour.

Paragraph 36 does contain averments potentially relevant to a claim for damages for a stress related illness induced by the defenders though it does appear from the pursuer's pleadings that the Dr. Delcloque, of whose actions she complained, was a bully to everyone and not just her in particular. Paragraph 37, similarly, contains allegations from which it might be possible to infer a relationship between stress inducing behaviour and illness which might be attributable to stress, so this seems to me to be potentially relevant. Paragraph 38 infers that her complaints about the source of her stress were not dealt with effectively and, if true, would also be relevant on the authority of Hatton.

In paragraph 39, it is averred by the pursuer that she suffered "further pressure and stress," as a consequence of her not having prepared minutes for a linguist's meeting. The averments suggesting that this failure led to deliberate harassment leading to that further pressure and stress are hard to understand as causative of such a result but potentially these averments are relevant.

The averments in paragraph 40 are undoubtedly relevant.

It is less clear paragraph 41 contains any material that would be relevant to the pursuer's principal action.

These 41 numbered paragraphs are then succeeded by the following paragraph:-

" In consequence of these circumstances, the pursuer frequently suffered burnout by the end of most academic sessions, was, from 1989 until 1996, in a state of long duration anxiety and stress - though these were at certain times very acute, was unable for long periods to lay claim to a proper personal life because of the encroachment of work duties into her personal time, and ended up developing a range of stress-related physical illnesses and conditions."

This is patently intended as a kind of catch-all. I am driven to the conclusion, having regard to the observations of the Court of Appeal in the Hatton case, that a stress related illness is likely to be caused by an accumulation of events rather than by a single episode which then makes it very hard to draw the line between the apparently trivial and the more important events in the pursuer's list. If I were considering the relevancy of these 41 paragraphs as part of pleadings in an existing record, I would, I think, be driven to the conclusion, having regard to the House of Lords authority of Miller v South of Scotland Electricity Board 1958 S.C. (H.L.) 20, that a proof before answer should be allowed but of course these averments appear, many of them for the first time, in a proposed Minute of Amendment enrolled more than three years after the commencement of the litigation, never mind after the event.

What I can be clear about is that the penultimate paragraph of the proposed Minute of Amendment cannot be permitted to enter the pleadings. The action seeks reparation for stress related illness caused by her working conditions. By no means could the defenders, under that particular umbrella, be said to have any responsibility for alleged invasion of privacy subsequent to the cessation of her employment. What is alleged in this passage is a course of conduct apparently intended to pervert the course of justice and I need only repeat the advice to be found at Para 9-12 of the 2^nd. Edition of Sheriff Court Practice: I.D. MacPhail as to the unacceptability of such averments, viz:-

" In particular, allegations of fraud, bad faith or immoral conduct should not be pleaded unless expressly instructed and unless there is in the papers before the pleader clear and sufficient evidence to support them."

There is absolutely no basis in the pleadings for the suggestion that, esto the pursuer has suffered any invasion of her privacy, including remote accessing of her computer, the defenders have any responsibility for that.

The pursuer continued in support of her proposition that Section 19A of the 1973 Act should apply submitting that the damage inflicted upon her reputation by the defenders had affected her ability to find a solicitor. She observed that male solicitors held her in a kind of odour, no matter how hard she tried. I confess that I did not fully understand this part of her submission. She had tried outwith Dundee to obtain representation as she "did not believe" that any Dundee solicitor would handle her case. It is instructive that in this, as in so many other things, no reasonable basis for that belief was advanced. Her infamy, as she put it, had even affected the decision of the Scottish Legal Aid Board. She returned to her earlier remarks about having been hypnotised for sexual purposes and about having her Internet connections closed. She considered that the coincidence of her alleged victimisation with other illicit activities where she had been the victim was an indication of the utilisation of dirty tricks against her by the defenders' insurers as she had been informed by "The Chief Reporter of The Herald" that this was what insurers got up to. Calls to her mobile telephone had been intercepted. Remote accessing of her computer had taken place. All these matters had been reported to the police but there had been no investigation and she felt that she was unable to obtain justice. That had been compounded by the deterioration of her mother's health.

She referred to what she described as the 2002 edition of Prescription and Limitation of Actions by Professor D.M. Walker Q.C., to something which she described as Johnston on Prescription and Limitation, with which I confess to being unfamilar, though I now understand it to be an English textbook and I would have considerable hesitation before considering the law as stated in an English textbook on the Scots law on prescription and limitation, and to a series of authorities, namely McCluskey v N.C.B. 1961 SLT 87; Coyle v N.C.B. 1959 SLT 114; Kelly v Holloway Brothers 1960 SLT (nts) 69; Mowatt v Shore Porters Society 1965 SLT (Nts) 10; Anderson v British Railways Board 1973 SLT (Nts) 20; Mazs v The Dairy Supply Co. Ltd. 1978 SLT 208 and McGrattan v Renfrew District Council 1983 SLT 678.

Though I was not directed to any particular page of Professor Walker's 6^th. Edition, I have confined myself to consideration of the passage between pages 129 and 131 where he deals with the topic of amendment of actions subject to time limits. As he correctly observes with his opening remarks, " A problem which has arisen many times is whether and to what extent an action, which is subject to a limitation of time for its commencement, and has been raised within that time, can be amended after the time limit has expired." I gratefully adopted the following observations thereafter:-

To allow amendment or not is at the discretion of the court.
The leading principle is that a pursuer is not entitled to change the basis of his case by amendment at a time when he would have been time-barred from raising an action.
The courts have frequently refused to allow amendment where in substance the pursuer was seeking to make fundamental change or really make a new case.
Amendment will not be allowed inter alia where substantial alterations in the case were proposed and the amendments were long delayed, especially where there would be demonstrable prejudice to the defender.

With regard to the case of McCluskie v NCB, it is clear from the judgment of Lord Guthrie that there are two immediate distinctions between that case and the present, namely that that case was at the instance of a widow, where the three year limitation, at least in terms of the Law Reform (Limitation of Actions, &c.)Act, 1954, Section 6(1)(b) applied from the date of death rather than in relation to any act or default giving rise to a claim for damages, which Lord Guthrie considered left him entitled to allow amendment to insert averments on a different basis for liability provided they still related and were relevant to the fatal accident. At page 89 he said in terms that he was expressing no opinion on the question whether the amendment would be competent in an action within the scope of section 6(1)(a). Further, the issue was debated unusually at the conclusion of the proof despite Lord Guthrie's observations that the competency, as he described it, of the amendment should be debated when the motion to amend is made.

The decision in Coyle v NCB is immediately distinguishable as applying to adjustment of pleadings prior to the closing of the record rather than to a proposed minute of amendment after the record has been closed.

With the greatest of respect to the Lord Ordinary, Lord Walker, who gave the judgment, I doubt whether the judgment in Kelly v Holloway Brothers (London) Ltd would stand up to scrutiny nowadays. I am conscious that the report, such as it is, is contained in the "Notes of Recent Decisions," in the Scots Law Times and I do not therefore have the benefit of the full terms of the judgment. I am also conscious that any case decided prior to 30^th. December, 1985, when Section 19A of the 1973 Act came into force, must be to some extent affected by the introduction of the equitable consideration therein promulgated. In any event I do not regard the decision in Kelly as authoritative having regard to the current considerations to be applied to a proposed minute of amendment which is prima facie time-barred and I was greatly encouraged to observe that Lord Maxwell in Anderson v British Railways Board considered it to be an "extreme case difficult to reconcile with opinions in other cases," with which observation I would respectfully concur. The general proposition emerging from Lord Kissen's decision in Mowatt v Shore Porters' Society is that amendment will be allowed after the expiry of a time limit if the basis or substance of the case remains the same after amendment, a general statement well supported by authority and with which I take no issue, nor did counsel for the defenders. In Anderson's case, Lord Maxwell helpfully reviews a number of the authorities and comments that in most cases it is a question of degree in the light of the whole circumstances. What he considered important was that "the manner in which the accident is alleged to have occurred is not changed, nor in my opinion is there a change in the real substance of the pursuer's complaint. The foreseeable risk to which he complains he was exposed is precisely the same before and after the amendment." In Mazs v The Dairy Supply Co. Ltd. Lord Grieve suggested at page 211 that one way of testing whether the pleadings proposed by amendment would fundamentally affect the substance of the case was to consider whether if the case had gone to proof on the unamended pleadings a plea of res judicata would have been upheld in relation to fresh proceedings as averred in the proposed minute of amendment. Finally, in McGrattan v Renfrew District Council, Lord Ross listed the facts relied on by the pursuer, the same danger being complained of and the continuance of a ground of fault at common law against his employers, as being indicative of an elaboration on an existing competent and timeous action rather than a complete change in the substance of the case.

The pursuer then went on to express surprise and to demonstrate, with due respect to her, her own state of confusion following the indication by counsel at the outset of the debate on 2^nd. March, 2003 that in the principal action he was no longer insisting on his time-bar plea. She could not understand, at least initially, the distinction to be drawn between that plea directed as it was to the competency of the proceedings in their entirety and the argument that, having regard to the wide discretion conferred upon a court in relation to the process of amendment, a time bar plea should not be circumvented by amendment. She also complained that she had been misled by several statements made in the course of the process, including a statement made in relation to the lodgment of productions, but none of these complaints appeared to me to have any merit nor to detract from her basic problem that, as a party litigant, it was her responsibility to know the law and to understand how to draft competent and relevant pleadings and to present appropriate arguments to the court in support of her pleas-in-law and in response to those of her opponents.

She went on to maintain that, in her original pleadings, she had pled a case to the effect that she had been the victim of a campaign at work which had resulted in her suffering stress, causing her to develop physical illness. She particularly referred to the pleadings in her original Art. 4 of Condescendence and rejected the suggestion that the various references to various physical illnesses having been the result of stress which she proposed to aver by amendment were novel as opposed to an elaboration upon what had already existed in the pleadings. It was wrong, she said, to interpret the pleadings as seeking damages for a series of individual illnesses. The stress of the repeated harassment at the hands of the defender's employees had led to physical and not psychiatric illness. The circumstances were thus distinguishable from Rorison.

She submitted that the law might not yet have taken full cognisance of how stress could manifest itself in physical conditions. Most of the conditions to which she referred were known to have stress as at least a factor in their aetiology. Her position was also to be distinguished from the Hillsborough football disaster cases, certainly White v Chief Constable of South Yorkshire Police where what was under discussion was the position of secondary and not primary victims. She was alleging that she was a direct, primary victim of harassment and that was not the same situation at all as someone who viewed a stressful occurrence and suffered as a consequence.

She referred me to the decision in Walker v Northumberland County Council 1995 1 All E.R. 736 This was a case involving an area social services officer who had been employed by the defendants for 16 years when he suffered a nervous breakdown because of "the stress and pressures of work." After three months absence and a promise of a reduced burden at work, the plaintiff returned to work but found that only very limited assistance had been provided and that the number of stressful child care cases had markedly increased. Six months after he returned, he suffered a second mental breakdown and was forced to stop work permanently. In February, 1988 he was dismissed on the ground of permanent ill health. He brought an action for damages against the local authority in respect of their failure to take reasonable steps to protect him from a "health-endangering workload." Mr. Justice Colman concluded that while the original nervous breakdown had not, in the particular circumstances of the case, been foreseeable, as to the second illness, the local authority ought to have foreseen that if the plaintiff was again exposed to the same workload there was a risk that he would suffer another nervous breakdown which would probably end his career as an area manager. The local authority ought therefore to have provided additional assistance to reduce the plaintiff's workload even at the expense of some disruption of other social work services and, in choosing to employ the plaintiff without providing effective help, it had acted unreasonably and in breach of its duty of care. It is instructive that that conclusion was arrived at after a full hearing of the evidence in the cause. Mr. Justice Colman concluded, on the preponderance of the expert evidence, that the volume of work the plaintiff had to contend with, or its stressful content, as in the case of field workers dealing with child abuse cases, or the combination of volume and content, had the potential to cause a stress related illness. Further he concluded, on the evidence, that having to prioritise in such areas involved making what he described as "stressful and unattractive choices." At page 748 he said, " There has been little judicial authority on the extent to which an employer owes to his employees a duty not to cause them psychiatric damage by the volume or character of the work which the employees are required to perform. It is clear that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the employee rather than to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care or from the co-extensive implied term in the contract of employment. That said, there can be no doubt that the circumstances in which claims based on such damage are likely to arise will often give rise to extremely difficult evidential problems of foreseeability and causation." In the present case, of course, the pursuer in effect avers a deliberate course of conduct to harass and bully her, at least by inference, into quitting her post. If she proves that, then she will elide any difficulty about foreseeability. Causation is a rather different matter but it is difficult to see how whether or not the harm suffered by the pursuer in the form of her series of physical illnesses is attributable to the breach of the duty of care can be established without proof, had the case been the subject of timeous and relevant averments.

It was time now, said the pursuer, for the law to acknowledge the relationship between physical illness and stress at work. The law develops all the time and in Hatton it had been acknowledged that stress can lead to either physical or mental illness or both. It was unnecessary that stress at work had to be the sole cause of such illness or illnesses. The trouble from the pursuer's view about Hatton is that the remedy which Mr. Justice Coleman may have had in contemplation in Walker, which is not reported in the decision to which I was referred, damages still having to be assessed, may have been greatly restricted by the observations thereon by the Court of Appeal.

She next referred me to Khorasandjiian v Bush [1993] 3 All ER 669 as an illustration of a case in England where the court had been prepared to grant an injunction against the activities of an ex-boyfriend "since there was an obvious risk that the cumulative effect of continued and unrestrained harassment would cause the plaintiff to suffer from physical or psychiatric illness." She accepted that stress was an almost inevitable incident of teaching but distinguished the type of stress that normally went with the job and would be able to be tolerated by an individual of reasonably robust personality and that deliberately induced by bullying and harassing behaviour. It was recognised that long term bullying led to ill health.

On foreseeability, apart from the consequences of a deliberate course of harassment being eminently foreseeable on the application of common sense and human experience, in her case there had been, as averred, a number of intimations and warnings about the risk of her becoming ill if the treatment were allowed to continue. Some of the worst episodes averred followed periods of absence through ill health. The late imposition of additional teaching responsibilities had been the subject of discussions. All the contents of her proposed minute of amendment were amplification of her existing case which was plainly grounded in allegations of a course of bullying and harassing treatment.

The balance of medical opinion was in her favour, said the pursuer, saying that she believed that medical evidence could readily become available. That, of course, begs the question why it is not currently available when logically it should have been available for some years. The defenders were however aware of her medical problems, she submitted. There was plenty literature linking M.E. with stress. The same was true of ischaemic heart disease, though there were, of course, other well known causes, including smoking and obesity. Esto it was the case that a number of medical experts would require to give evidence in the case, that was not a reason for denying her access to justice. In any event there were occupational health experts who could express opinion about the range of illnesses though it was not apparent that she had consulted or been referred to any.

Turning to the issue of the allegedly scandalous averments, she submitted that they were not scandalous if they were true, though that seems to me to be a misunderstanding of the law - they would not be scandalous if they were relevant and true. The averments which counsel was concerned in the present case to dub as scandalous and irrelevant were those suggesting that the defenders were somehow involved in the alleged remote accessing of the pursuer's computer and in alleged break-ins to her property subsequent to the termination of her contract of employment. Apart from the submissions of counsel, it is, of course, pars iudicis to notice and order the deletion of scandalous averments. An allegation of involvement on the part of a university in a course of criminal conduct is undoubtedly scandalous and, if it as an allegation has any relevance at all to the present litigation it can only at best be in relation to collateral issues. Were I otherwise prepared to admit the proposed minute of amendment, I would order the deletion as scandalous and irrelevant those averments to be found at page 25 of the minute being the penultimate paragraph of the new Art 2. of Condescendence.

The pursuer did make submissions at some length about the remote accessing of her computer and break-ins to her property which she complained had not been adequately investigated by Tayside Police. Obviously I am not in a position to make any observations on that. She did however concede that, despite her beliefs to the contrary, she was not in a position to say that the defenders or their agents or insurers, whom she also implicated in this alleged criminal conduct, had in fact been involved, blaming the inadequacy of the police investigations for this state of affairs. She said that this was contrary to the interests of justice and should be of concern to the court. In my opinion, these observations from the pursuer merely serve to confirm that the averments branded scandalous and irrelevant by counsel for the defenders have no factual basis and are properly so categorised and therefore must be deleted as I have already indicated.

At the resumed hearing of the debate on 30^th. May, after having returned briefly to the theme of averments ex facie scandalous not being scandalous if true, which added nothing to her earlier submissions, she also reverted to her argument about the exercise of discretion in relation to the delay in getting the present proposed minute of amendment prepared. She explained that another part of the delay had been caused by the theft or destruction of relevant documentation by either break-ins to her home or remote accessing of her computer. She accepted that this was "difficult to prove" but she had reported matters to the police. Their failure to respond effectively and these actions had also added to her existing level of stress. She submitted that there had been 3,200 occasions of illegal remote accessing to her lap top notwithstanding that it was not connected to any power supply or Internet connection. It was difficult for her to say that this was being carried out by or on behalf of someone connected with this action but the major targets appeared to be the documents connected with this case. She hinted darkly at the involvement of the defenders' insurers. She said that this form of accessing was only within the capability of the military and that Stephen Roud, to whom she had earlier referred, was a member of the Territorial Army. He had been on an electrical course, as she described it, at the University of Abertay.

She also submitted that her own lack of knowledge of the legal process and "being misled by my legal adviser," had led to things not being with the court. However, she now had expert witnesses "currently working on reports."

She further complained about having been "wrong-footed" by the Scottish Legal Aid Board but she did not appear able to formulate any specific complaint of any merit about how they had handled any application she might have submitted. The main complaint appeared to be that they had delayed the progress of the litigation by taking some twenty months to reach a conclusion on the application. I want to make it clear that I am in no position to make any comment about the treatment of any application for legal aid which may have been made by the pursuer.

Counsel had submitted that a recognised psychiatric condition was a necessary trigger for an award of damages where work induced stress related illness was claimed. She referred me, however, to Fleming v Strathclyde Regional Council in which she said that the pursuer had sustained distress and inconvenience as a consequence of flooding. I assume this to be a reference to the decision of the now Lord President reported at 1992 SLT 161 though I was not, in fact, offered any citation. In that case involving flooding in the Rutherglen area, Lord Cullen, as he then was, refused to exclude as irrelevant averments of inconvenience and distress consequent upon the flooding of a person's home, though they were excluded as time-barred. He considered such averments to amount to a relevant claim for solatium, as I understand his judgment on the basis that they referred to "some form of mental suffering." A recognised psychiatric illness did not seem to be required for the trigger. I also observed the decision in Keen v Tayside Contracts 2003 SLT 500. That was a case with considerable local interest arising out of the horrific accident at Claypotts Junction, Dundee, in 1998 when four persons travelling in a vehicle were crushed and burnt when a laden grain lorry toppled on to the vehicle in which they were travelling. The pursuer in this case was a road worker who had been directed to the scene to assist the emergency services and who was exposed to the gruesome sight of the dead and mutilated bodies at the locus. He brought an action against his employers alleging negligence on their part and on the part of a supervisor for whom they would be vicariously liable for failing to have a safe system of work in not instructing supervisors that no employee should be required to remain at an accident scene where they would be exposed to gruesome sights and in failing to have, in effect, a counselling service to help those who had been so exposed; and in respect of the failure of the supervisor to permit the pursuer to leave the scene at the time. The diagnosis averred was post traumatic stress disorder. The pursuer had sued his employers rather than the person responsible for the accident presumably because in relation to his presence at the scene he was not within the ambit of the duty of care at the time of the negligent act giving rise to the accident (Bourhill v Young 1942 SC (HL) 78) and therefore at best would be categorised as a "secondary victim" as defined in the decisions arising out of the Hillsborough disaster, especially Alcock v Chief Constable of South Yorkshire Police[1992] 1 AC 310; and White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, as now applied in Scotland in Campbell v North Lanarkshire Council 2000 SCLR 373. However, Lady Paton, in a judgment in which the authorities were comprehensively canvassed, unlike the present case before me, reached the conclusion that even in an action against his employers he was still to be regarded as a secondary victim of the events causing him to sustain nervous shock and that, in the absence of any close ties with the victims, his claim was excluded on a public policy basis. While I do not for one moment question the correctness of the verdict as a matter of interpretation of the law as it presently stands, looking at matters from the standpoint of the victim, one cannot help but feel a certain unease at the outcome. What is of importance to the present case, however, are Lady Paton's observations at paragraphs [68] to [70] on page 511 of the report where two points of note are made, namely that in the context of foreseeability, the question is whether the kind of harm to the particular employee was reasonably foreseeable and not whether psychiatric injury was foreseeable in a person of ordinary fortitude; secondly, in the context of consequence or remoteness of damage, it had to be reasonably foreseeable not simply that an employee would be distressed, upset or emotionally disturbed, but that he would suffer psychiatric damage. Without demurring from that, I still incline to the view that, where what is averred is a deliberate course of action of harassment or bullying, if the element of deliberation is proved, the requirement otherwise for foreseeability is removed and, standing the opinions of the Court of Appeal in England in Hatton, I see no need to distinguish between psychological and physical illness, provided the victim can demonstrate having suffered significant illness causally connected to the alleged deliberate conduct.

In Keen's case, reference was made to four other recent Scottish decisions which have some bearing on the issue of stress related illness. The first of these is Mather v British Telecommunications plc 2001 SLT 325, where Lord Osborne required to deal with issues of relevancy and time bar in a case where an employee complained that she had sustained mental health injury as a consequence of stress at work. The stress appears, as I understand the averments, to have been generated, allegedly, by an increase in workload and certain other changes to working practices including the layout of the workplace and by the unfortunate attitude, allegedly, of the pursuer's manager. Lord Osborne, at para.[36] of his judgment, made reference to the decision in White v Chief Constable of South Yorkshire Police and recorded that both sides accepted that, for there to be a remedy in damages, there had to exist a recognised psychiatric illness caused by the events in question, as opposed to a mere emotional reaction. In the present case, I am inclined generally to the view that it is a matter for proof whether the physical illnesses from which the pursuer avers she suffered could be said to be caused by stress generated by the adverse situation in her workplace and would have allowed a proof before answer had there been timeous and relevant averments to support such a claim otherwise. I think it is also a matter for proof whether, so far as her mental health is concerned, she suffered from a recognised psychiatric illness causally connected to the alleged adverse situation at work. Again it appears to have been accepted, in relation to foreseeability, that either the injury had to be reasonably foreseeable as a likely consequence of the acts or omissions in question upon persons working in the same class of employment as the pursuer, or that such injury was reasonably foreseeable to a pursuer, who had a known propensity to suffer psychiatric illness. In the present case, however, in the proposed minute of amendment, there are averments about the incidence of stress at work and about the pursuer's medical history. In addition, it is a recurring theme of the pleadings that she offers to prove that the behaviour directed against her was of a deliberate nature, which seems to me to make a fundamental difference to the whole issue of foreseeability.

The second case was Fraser v State Hospitals Board for Scotland 2002 SLT 1051. This case went to proof before Lord Carloway and involved a charge nurse at the State Hospital, Carstairs, who developed a depressive illness allegedly sustained during the course of his employment. It was submitted on behalf of the pursuer that a particular work regime which had been inflicted upon him was the cause of his depressive illness. It seems to have been a matter of concession that the pursuer did suffer from a depressive illness and the imposition of the regime was a factor in its development and therefore a cause of it in the legal sense. The case appears to have turned largely on the issue of foreseeability, the particular question appearing to be whether the pursuer's managers could have foreseen that as a result of the imposition of the regime upon him, which appears to have been done for disciplinary purposes, the pursuer would suffer a recognised psychiatric illness, as opposed to an emotional reaction. Lord Carloway held that in the particular circumstances there was no evidence to support a conclusion that the management of the defenders had any reason to foresee that the pursuer would become psychiatrically ill as a consequence of their imposing a disciplinary step on them and he was clearly and understandably sympathetic to a management structure where poor performance would be visited by disciplinary steps and to the remedy in constructive unfair dismissal if such action were taken carelessly or otherwise inappropriately. At Para. [119] Lord Carloway first of all concludes that there is no reason for a qualification restricting the nature of the injury sustained by a pursuer who has been the victim of an act of negligence to physical injury. With than observation I respectfully concur. I further concur with his conclusion that the cases pertaining to secondary victims have no application to a situation such as this and am grateful for his careful and helpful analysis of the Scottish, English and Commonwealth authorities on this issue. The control mechanisms illustrated best in cases such as Frost v The Chief Constable of South Yorkshire Constabulary have no application to circumstances such as the present. Lord Carloway felt able, on the evidence, to dispose of the pursuer's claim on the basis that "nothing that the defenders' management did was or ought to have been perceived by them as a potential cause of psychiatric illness," in other words that there was no foreseeable risk of injury. I can distinguish the present case given the pursuer's averments that she was deliberately targeted for abuse and bullying. It does also seem to me that there ought to be a distinction between this type of case, as best illustrated in the cases considered by Hatton and also in Walker v Northumberland County Council, where the claim consists of allegations of wrongfully causing the employee to suffer illness through a stressful situation in the workplace which, ex hypothesi, does not arise out of a single event, and cases of, for example, post traumatic stress disorder of the type suffered by some of the survivors from Piper Alpha, who were primary victims, because of their presence on the rig and need to escape from it, but who suffered no physical as opposed to psychological injury or a case like Keen (supra). The policy decision that recovery in the latter type of case should be restricted to those who have sustained a recognised psychiatric injury does not seem to me, at least in the particular circumstances of the present case, to be an appropriate approach to the assessment of the causation of stress related illness. I accept there is still a distinction to be drawn between causing illness on the one hand and merely causing an emotional reaction on the other but that is a matter for proof in much the same way as industrial deafness or pneumoconiosis or any other recognised industrial illness. Stress at work, as an issue for employers, has been around for a long time, as was recognised by the Court of Appeal in Hatton and I find their approach to causation preferable to, for example, the approach adopted by Lord Reed in Rorison.

Finally in Green v Argyll & Bute Council reported only briefly at Greens Weekly Digest 2002 9-295, Lord Bonomy, dealing with a case which went to proof brought by a social worker who had suffered, it was held, a major depressive disorder as a result of an excessive workload, reached the conclusion that there was no foreseeable risk of the pursuer suffering such a condition. The report is not particularly illuminating in explaining how that conclusion was reached and, given that the evidence appears to have been that the pursuer's workload was grossly excessive and involved a large number of community care cases, I have some difficulty in understanding the conclusion, though the report suggests that the evidence in some respects may have been unsatisfactory.

Returning then to the pursuer' submissions, she went on then to submit that the defenders had policies in relation to harassment and had an employee assistance programme. She wanted to make reference to this. I do not recall any reference to it in her proposed minute of amendment.

The issues over foreseeability were completely answered in the proposed minute of amendment in terms of warnings about the effect of the behaviour of the defenders' employees upon her, the illnesses she developed which should have been recognised as being stress-related, resulting from deliberate acts of victimisation and discrimination, all of which come into the category of bullying, she submitted. Bullying is intended to cause harm and therefore the occurrence of harm is entirely foreseeable. That begs the question exactly how 'the employer' is supposed to know, but I suppose an employer must be vicariously responsible for one employee bullying another employee especially where the bully is in a position of authority over the victim.

She then talked about the need to demonstrate constructive knowledge and even more worryingly about the need to adjust her minute of amendment to make averments about, as I understood it, the defenders' knowledge of her developing illnesses and the need for her to be referred to a counselling and assistance programme.

She claimed that she had only recently gained access to her file which had previously been denied. I understood her to be speaking about her personnel file as a former employee of the defenders though she did not spell that out. The records "indicative of injustice," as she put it, were not there or had been removed. While she did not identify what these particular records might have been, she claimed that there was a letter from the defenders' solicitors advising them to remove documents from the file so they could not be perused. I was not shown or otherwise referred to this alleged letter. I felt obliged to warn the pursuer against making any further unsubstantiated allegations of unprofessional conduct on the part of the defenders' solicitors.

She then returned to her argument that, "given the number of difficulties in my life," it would be inequitable to prevent her from amending her writ. It was an elaboration on her existing pleadings. It was fundamentally the same case with greater detail. It has always been based on the development of illness caused by deliberate harassment and bullying by employees of the defenders.

In response to a suggestion from counsel that no medical documentation which supported the alleged connection between any of her health conditions and stress at work had been lodged or exhibited to the defenders, she maintained that she had such documents and that she should be allowed to lodge them. Responding similarly to a claim that she did not offer in her pleadings to prove that any of the illnesses which she attributed to stress at work were so attributed by any qualified medical practitioner, she accepted that she might not have expressed herself properly in the pleadings, but that is what she intended to do.

She then turned to the case of Hatton, and submitted that there no distinction was drawn in dealing with claims for stress related illness between physical and psychiatric manifestations of work induced stress. She accepted that she had not averred that she had suffered from a psychiatric condition but maintained that that was irrelevant where she had sustained physical illness as a consequence.

In relation to relevancy, she directed me to a passage from the 2^nd. Edition of MacPhail's Sheriff Court Practice at page 275, para.9-33 which contains a direct adaptation of the words of Lord Normand from Jamieson v Jamieson 1952 S.C. (H.L.) 44 to the effect that "an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved." There is, of course, no issue about that statement of the law but we are not here presently dealing with the relevancy of pleadings, as such, but whether a minute of amendment should be allowed, so the consideration addressed at this passage is itself not relevant to this discussion.

The pursuer acknowledged that she had suffered major trauma unrelated to the work place and had suffered from gynaecological problems which had lead to an operation in the 1980s, but maintained that otherwise all her medical problems were attributable to the activities of the defenders and their employees. This, she considered, could be demonstrated by an expert in occupational health and she disparaged the suggestion that a whole range of experts would require to be instructed by the defenders to express an expert opinion on her conditions and their causes.

Finally she reverted to asking me to exercise discretion in terms of Section 17 of the Prescription and Limitation (Scotland) Act, 1973, as amended, to allow her pleadings to be amended notwithstanding the expiry of the triennium. That section, of course, does not confer any right of discretion and the Act does not confer any right to exercise discretion in relation to the amendment of pleadings. Once more she told me that the contents of the minute represented no more than an elaboration of her existing case. Once more she told me that there was a whole vista of extenuating circumstances which explained her inability to get legal representation and to get on with things herself. She told me that she had been an active person, prior to becoming ill, and that she was able, competent and well regarded by students and colleagues alike. There had been no justification for the kind of treatment she had received. Were her minute of amendment to be refused, she would suffer great prejudice, greater than any prejudice to the defenders from its allowance. There were still enough people around to enable the evidence to be effectively explored. The events were still etched on peoples' recollections. There were still documents available. It was therefore not unreasonable to the defenders to allow the proposed amendment. Part of the admittedly lengthy delay had been caused by the Scottish Legal Aid Board and otherwise the delay had been caused by the pursuer's poor health. Further, all the matters she intended to raise were "in the public interest." It could not be right, she submitted, for a public authority to spend a vast amount of money on solicitors to support actions. This public authority had failed to abide by its own rules.

To allow the minute of amendment would accord with the pursuer's right to a fair trial under reference to Art. 6 of the European Convention. It was an involuntary state of affairs that she was a party litigant but her failure to obtain legal representation was nothing to do with the merits of the case.

In a brief reply. Mr Henderson said that it was clear from the pursuer's comments that what she really sought was a public enquiry. She had referred to a number of issues which were wholly irrelevant to any stress at work claim which she might otherwise have. There should be nothing in an action for reparation other than a claim for money. There should be no question of any judicial determination of the propriety of the actings of an institution, which appeared to be what the pursuer sought. That on its own was sufficient to justify the defenders asserting that enough was enough. The proposed amendment would lead to an extremely lengthy proof.

In relation to the pursuer's so called complaints about the behaviour of the defenders' solicitors, it was not, of course, for an opponent's solicitors to explain their tactics to an opponent in a litigation and no excuse for the pursuer's own ignorance of the law.

He thought that the letter referred to obliquely by the pursuer to the defenders from their solicitor would fall within the solicitor's duty of confidentiality and that the pursuer had no right to refer to it, though without seeing it it was hard to comment further.

The defenders' approach had largely been to ignore procedural niceties and concentrate on what appeared to be the substantive issues.

The obligation to ensure a fair trial in a civil litigation enured to the benefit of all parties to the litigation, not just the pursuer. One of the factors determinative of whether there had been a fair trial was the question of delay. Four years to present a minute of amendment seemed rather a long time and was not consistent with this concept.

The court should have regard to the pursuer's failure, as he saw it, properly to address the issues he had canvassed on the earlier occasion. Firstly, in relation to causation, while, for the purposes of relevancy at least he would be satisfied if it were averred that she had sustained some medical condition causally connected to stress at work, it was not acceptable for her to proceed merely on the basis that she believed that she had sustained a medical condition so connected. It did not matter whether the illness was physical or psychiatric. There was no medical report supporting her position. The report, such as it was, that she had produced made only general observations about possibilities.

The defenders appeared to be being accused of criminal behaviour through the actions of a technician without any support or justification for the accusation. It had been a long tradition of the legal profession in Scotland that, where allegations of criminal activity are being made, then there should be proper specification of those allegations. What one had here was a blatant suggestion of the defenders' involvement in such activity without a shred of specification to support that position. At all costs, the averments demonstrative of criminal activity should be excluded from probation. The averments were irrelevant to the cause in any event, being after the event giving rise to the claim.

In relation to time bar, nothing had been said by the pursuer germane to that issue. The two versions of Art. 4 as it presently existed and as proposed were worlds apart. In the first version, in 1996, everything came to a head, resulting in the pursuer requiring to give up work and averring her existing conditions to support knowledge on the part of the defenders of her deterioration as her approach to the problem of foreseeability. In the second version, she appeared to be suggesting an accumulating continuing wrong. So, for example, for the first time she proposed to aver that the defenders should bear a liability for each of the various conditions said to have manifested themselves in the early 1990s. It was the equivalent of averring in the first version a single accident and then trying to replace that with an allegation of suffering from repetitive strain injury. She therefore sought to bring in a much wider case or, arguably, series of cases about a series of conditions said to have arisen throughout the 1990s.

On the nature of damage for which an award would be made, the law remained as set out in Rorison. On a proper reading of the pleadings, the case did not come within the range of cases such as Hatton or Cross. It was not foreseeable that the pursuer would suffer in her health as a consequence of any stress suffered at work. She could only succeed if she could demonstrate that injury to her health was foreseeable. Inquiry into a person's state of mental health could be seen to be intrusive.

Insofar as she proposed now to make averments about something happening in the year 2000, what an employer did after an accident to improve things in the light of experience does not mean that there was any failure in duty amounting in law to negligence in 1996.

It would be a grave imposition on the defenders if this minute of amendment were allowed to be received. A lot of time and money would require to be expended if its contents were to be explored properly. The pursuer had expressed concern about the expenditure of public funds but if amendment were allowed to this extent and at this stage it would be her and no one else who was causing that expenditure of public funds. Accordingly, I should refuse to allow the minute of amendment. Expenses in connection therewith should follow success. I should sanction the cause as suitable for the employment of counsel standing its importance and novelty.

The pursuer indicated that she was content that expenses should follow success. She considered it would have been sufficient for the allowance of the minute of amendment to have been opposed by a solicitor, because she was a party litigant.

Decision:

I have come to the conclusion that the minute of amendment should be refused in its entirety. The first reason for doing so arises from counsel's submissions about delay in the proceedings to date and the likely prejudice which would result to the defenders were this minute of amendment now to be allowed. I have set out at length the unsatisfactory history of the litigation and need say no more about that. It is not the fault of the defenders that the pursuer's legal representative at the outset of the proceedings has not pled a case considered to be sufficiently relevant and specific some four years later that it should need to be the subject of a 37 page minute of amendment. I do not mean to criticise the then representatives of the pursuer as I am not privy to the quality and extent of her instructions to them nor as to the background to their withdrawing from acting. What is to the point, however, is that it is hard to see anything in the minute of amendment as proposed which could not have been made know to legal advisers in 1999 or earlier for that matter. As is made clear at para. 10.14 of the second edition of Sheriff Court Practice by Sheriff I.D. MacPhail, the allowance of amendment is an exercise of discretion if it is considered in the interests of justice to do so. What we have here is an attempt to obtain reparation for illness or illnesses caused by stress at work arising through fault or negligence on the part of employers where the causation is said to consist of acts of bullying and harassment by various of their employees principally between 1989 and 1996. It seemed to me of significance that the exploration of whether any alleged acts of bullying or harassment had led the pursuer to suffer from stress related illness by the instruction now of appropriate professionals would be extremely difficult, if not impossible. As counsel submitted, even with the benefit of good contemporaneous records, it was hard to see how a medical expert could attribute up to fourteen years after the event whether a condition, such as colitis, for example, was stress related or had some other organic cause. But in more general terms, the sheer practical difficulty of exploring the detail contained in the proposed minute of amendment would inevitably cause prejudice and considerable expense to the defenders, a publicly funded authority. It is inherent in having a system which limits rights of action for damages after a given period that there is a recognition of the unfairness to potential defenders of having to investigate stale claims. Looking at the other side of the coin, there did not appear to me to be any acceptable explanation for the delay. I have no doubt that the pursuer has had difficulty in obtaining the services of legal representatives especially where the Scottish Legal Aid Board have taken a particular view, but that is a matter for the pursuer to resolve with those responsible for the provision of the services of solicitors and legal aid. I have no doubt that she has suffered ill health but, from her own mouth, there came a series of indications of causes of stress outwith her working environment, for example, having to contend with gynaecological problems and the untimely loss of her sister. I am also conscious, as I now require to be, of the provisions of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and its requirement for a fair and public hearing within a reasonable time. I do not consider, having regard to the whole circumstances, that it would be just to permit the pursuer, who has had opportunity after opportunity to get her pleadings right, a further opportunity leading as it inevitably would for the need for the usage of further time to respond and substantial enquiry with the expense inevitably associated with that, some of which enquiry will inevitably be hapmered merely by the passage of time, where there is no adequate explanation for that lapse of time. On this basis alone, accordingly, I would refuse to allow leave to amend.

Counsel's next general heading was causation i.e. the general obligation upon a pursuer in a reparation action to establish the link between the alleged breach of duty and the alleged harm sustained. Looking at No.18 of process, the amended Closed Record which the pursuer currently seeks to amend, the duties said to be incumbent upon the defenders are set out in what appears to me to be a singularly inspecific way (though I must make the point that I am not currently considering the relevancy of the pleadings in that Record). The consequence of the alleged breaches of duty is set out in Art. 7 of Condescendence as being that:-

"The Pursuer is of the firm belief that the unwarranted stresses and distress she suffered in her employment with the Defenders, particularly from 1989 onwards, led to her developing medical problems and conditions which, by mid-1996, cumulatively rendered the Pursuer unfit for further employment with the Defenders and led to her ill-health retirement in September 1996, at age 50."

Art 8 goes on to set out, equally inspecfically, the quantification of her claim. There are in Art. 4 of condescendence some references to what the defenders ought to have been able to foresee and what steps they should have taken in the light of what they should have foreseen, for example, the provision of counselling services, but there does not appear to me to be anywhere in the existing pleadings any formulation of a duty to take reasonable care not to cause injury to the pursuer pertinent to the particular circumstances of this case. For example, there is no suggestion that the defenders had a duty to take particular care because of the pursuer's vulnerable personality or health. There is no suggestion that a person of ordinary fortitude would have been rendered a stress victim by the behaviour otherwise referred to. And it is of course trite to say that an attribution of harm based on a belief that it was caused by a particular set of circumstances which may or may not be founded upon a duty which has been breached, without there being any averments of fact to support that belief, is irrelevant. Counsel's question then was is there anything in the proposed minute of amendment which addresses effectively the issue of causation. Para. 18 of the proposed new Art. 2 does, as I have already said, appear to me to contain some averments which might be habile to set up a claim of work related stress induced illness and, on a charitable interpretation, the same might be said for paragraphs 23, 24, 31, 32, 36, 37, 39 and 40. It is said that of these and all the other numbered paragraphs of the Article, cumulatively as I understand it, that the pursuer suffered "burn-out" and ended up developing a range of stress related physical illnesses and conditions.

In the light of all this, the proposed new Art. 3 opens with an assertion that the liability of the defenders is vicarious though, with the possible exception of Dr. Cuming (deceased), no particular employee appears to be named as having failed in some duty of care to the pursuer. It is then to be averred:-

" The defenders had a duty of care towards the pursuer. Said duty of care made it incumbent on the defenders to take reasonable care to avoid injury to the pursuer."

That strikes me as a somewhat cumbersome and unusual way of stating that the defenders had a duty to take reasonable care not to cause injury to the pursuer. The nature of the relationship between the parties giving rise to that obligation is not set out however. The pleadings then immediately continue:-

" Separatim, esto the defenders did not breach their duty of care (which is denied) the defenders had a duty to maintain a reasonable standard of care to avoid injury to the pursuer."

Whatever precisely that might mean, it does not seem to me to elaborate upon the existence of a duty to take reasonable care. It is then to be averred:-

"The pursuer believes and avers that a large proportion of the said acts and omissions were of a wilful nature."

There appears to be nothing at this stage averred about the factual basis for that belief. I assume that the acts and omissions referred to are those set out at length in Art. 2. It is not clear what is meant, in terms of identifying what is alleged to be wilful and what is not, by " a large proportion." It seems to me that there is a distinction to be drawn towards acts done wilfully with the intention of causing harm and those done negligently so the foregoing observation is not merely academic. It is then to be averred:-

"Separatim, esto this was not so (which is denied), the defenders should have taken reasonably practicable steps to avoid injury to the pursuer of the kind that took place. In the exercise of their duty of care they should have taken reasonable steps to make the workplace safe, to have a safe system of work, and to provide safe fellow employees where this could result in foreseeable injury to their victims. They should have taken reasonable steps to ensure that the pursuer's physical working conditions were safe by repairing the floor covering in her room, and by providing her with a swivel chair and a screen for her computer monitor. They should have taken reasonable steps to create a safe system of work by taking measures to prevent the pursuer from being overloaded with work and to allocate work tasks and functions fairly. They should have taken reasonable steps to prevent the pursuer from suffering bullying and harassment from fellow employees, by taking note of the pursuer's complaints and monitoring and supervising the behaviour of their employees and modifying this, as necessary. Separatim, esto the defenders had a safe workplace, a safe system of work, and provided safe fellow employees, (which is denied) the injuries to the pursuer were caused by the fault and negligence of the said employees of the defenders. It was reasonably foreseeable that if the defenders failed to take reasonable care, the pursuer would suffer the injuries, loss and damage as did occur."

One might uncharitably criticise the foregoing as an attempt to encompass just about every possible known variation of the law of delict, but I am left wondering what making the workplace safe and putting screens on computer monitors has to do with stress related work. Nor is it clear in what respect the defenders provided fellow employees who were not safe. The foregoing extract from the pursuer's proposed amended pleadings is, sadly, illustrative of the confusion in the mind of their progenitor. And I am still left wondering what is averred as being the duties of care incumbent upon the defenders.

One then moved to page 27 of the proposed amendment where it is to be averred that the pursuer suffered serious loss, injury and damage as a result of all these acts and omissions. In there we find that the pursuer suffered stress and exhaustion from the work overload in 1986. There is no averment currently on record about a diagnosis of stress related illness in 1986 and, if that is what is now to be suggested, that is potentially material, given the decision in the Walker case and would require the defenders to investigate matters from some 17 years ago. It also begs the question about the state of knowledge a reasonable employer would be expected to have in or about 1987 when the pursuer returned to work, about her vulnerability thereafter, about which there are no averments. Throughout the proposed minute of amendment it is alleged that the defenders are vicariously liable though I can find no reference to any particular employee either by name or by description nor to any act or omission by any particular employee from which such vicarious liability might arise. The bottom line remains that, despite a proposed lengthy new fifth Article of Condescendence, it is not clear that, beyond the pursuer being convinced, there is any averment from which it might be proved that any of the conditions suffered by the pursuer arise as a consequence of stressful circumstances in the course of her employment which arise from a breach of any duty of care arising out of any identifiable duty of care owned to her by the defenders, vicariously or otherwise. In the absence of any clear averment of a causal connection between a duty, its breach and the damage sustained, the pursuer cannot possibly succeed in a claim for reparation and I agree with counsel on his observations on causation. Looking strictly at the minute of amendment, it means that the whole of the minute, given the extent to which it purports to replace the existing action, almost completely, is itself irrelevant and on this basis too I shall accordingly refuse to allow the minute of amendment.

Counsel said properly at the outset of his submissions that there was an overlap among the four heads he was advancing and though I have dealt with his second head under the heading "causation," it is quite clear how the lack of averments of causal connection render the proposed minute of amendment irrelevant. Relevancy was counsel's third head and under that I now propose to deal with a number of issues of relevancy which would at least lead to the exclusion from probation of certain parts of the proposed minute of amendment. The issues which arise, in no particular order, are:-

whether there is a need to aver a recognised psychiatric condition before there can be a recovery of damages;
whether the averments about criminal conduct on the part of the defenders and others should be excised; and
whether there are any relevant averments of breach of contract.

I have already considered the authorities relating to the first issue and do not propose to dwell further on the matter. Suffice it to say that where there were relevant averments of physical or psychological illness attributable to work induced stress, I would allow a proof, if necessary before answer, regarding Hatton as the most authoritative statement of the law on the subject, distinguishing the present case from the decision in Rorison, given that I do not consider that it should be necessary to aver a recognised psychiatric illness as a consequence where what is averred is a course of bullying and harassment and where, in any event, it is averred that physical illness has been the consequence.

I have already stated clearly that there is no possible justification for the averments about criminal conduct on the part of the defenders or for anyone for whom in law they might be responsible and if I were otherwise inclined to permit the minute of amendment, I would be disinclined to permit those averments suggestive of such behaviour. These averments are to be found at page 25, line 5 to 15 of the proposed new Art 2 of Condescendence

In relation to the case to be based upon the employee's contract of employment, again I need not dwell on this for, in my opinion, any case seeking damages for personal injuries occasioned by a breach of an express or implied term of a contract of employment would be open to the criticism that allowance of amendment to let in such a case would be to circumvent the three year time limit in relation to such averments. It is true that in the existing record at Art. 6 there is a reference to the acts and omissions of the defenders including "breaches of the contract of employment between the defenders and the pursuer." That however is the extent of the present averments in relation to alleged breach of contract. Such an averment in isolation is hopelessly irrelevant. What is proposed, however, apart from being too late as a matter of law, is also irrelevant. First of all, the breach of contract is alleged to be vicarious. I have some considerable difficulty with the concept of vicarious liability for breach of contract. Beyond that, no real effort is made to relate any of the express or implied contract terms to any breach of contract nor is it clear to me from the proposed averments what damages are said to flow from any particular breach. Accordingly I would exclude the proposed new Art. 4 of Condescendence in its entirety along with the reference in the first and second lines of Art. 5 relating to alleged breaches of contract.

Finally, on the issue of time bar, firstly I would, as I have already indicated, refuse to allow what would be a new case proposed in Art. 4 of the minute of amendment to introduce a claim based upon a series of alleged breaches of the pursuer's contract of employment with the defenders on the simple basis that to do so would be to circumvent the personal injuries time-bar contained in Section 17 of the Prescription and Limitation (Scotland) Act, 1973.

With some hesitation, I have come to the conclusion that it would otherwise be inappropriate to refuse to allow the minute of amendment on account of its contents containing a radical alteration to the basis of the case. I have to say that I do think there is some merit in the submission by counsel that the foundation of the case would be altered from one where the claim is based on an accumulation of factors coming to a head in 1996 to one at least giving rise to the argument that each of the various ailments attributed to stress at work arising out of the defenders' fault gives rise independently to a claim. There is, however, only one crave for damages which suggests a single cause of action and in my opinion there can only be one date from which a right of action would run. Taking a broad and possibly too charitable view of the proposed pleadings, it does seem to me that we would be left with a case about stress at work caused allegedly by fault and negligence some of which at least is said to arise deliberately through harassment and bullying of the pursuer by the defenders. If all other factors were equal, and, in particular, there was some identification of the alleged perpetrators of the bullying and harassment, which there is not, I would not be for refusing amendment on this basis. However, suffice it to say that there is ample alternative justification for the refusal of the minute of amendment.

Given the value of the cause and its importance to the clients, I have no difficulty in giving sanction for the employment of counsel. I find the pursuer liable to the defenders in the taxed expenses of all procedure relating to the consideration and opposition to the allowance of the proposed minute of amendment. I shall appoint the cause to the procedure roll to determine further procedure.

SHERIFF COURT

JUDGMENT RECORD AND CATEGORISATION SHEET

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CASE NAME: STANISLAU LAUDANSKA v UNIVERSITY OF ABERTAY

CASE NUMBER : A213/1999

AUTHOR: SHERIFF RICHARD A DAVIDSON

DATE SIGNED BY AUTHOR: 4^th. November, 2003

DATE RECEIVED BY MRS. CRANSTON:

DATE PUBLISHED ON WEB

SHERIFF'S EDITING COMMENTS:

Was editing necessary ? No.

Judgment has been edited as required: Not necessary

CATEGORISATION OF JUDGMENT:

This judgment should be recorded under the following categories:

Reparation.

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