Scottish Sheriff Court Decisions

A1937/01

The Sheriff Principal, having resumed consideration of the cause, recalls the interlocutor of 7 July 2004 complained of; on the unopposed motion of the pursuer and respondent allows the closed record no 24 of process to be opened up and amended as follows:

of new closes the record; excludes from probation the following averments:

quoad ultra before further answer allows parties a proof of their respective averments on dates to be afterwards fixed; reserves all questions of expenses and appoints parties to be heard thereon on 15 September 2004 at 10.30 a.m. in the Appeal Court, Court No 9, Sheriff Court House, 27 Chambers Street, Edinburgh.

[1] This is an action of damages for psychiatric illness caused by stress at work. The pursuer was employed by the Scottish Prison Service (SPS) as a prison officer at H M Prison, Edinburgh. The defenders are responsible for the administration and management of SPS who are in turn responsible for the administration and management of the prison service in Scotland. The pursuer claims that she suffered a psychiatric illness caused by her exposure to harmful levels of work-related stress. The defenders have stated a general plea to relevancy in these terms:

The Sheriff has heard parties in debate on that plea and has allowed a proof before answer, having excluded certain of the pursuer's averments from probation. The defenders have appealed and have argued that the Sheriff should have sustained their plea and dismissed the action.

[2] The pursuer's pleadings are prolix. It will be necessary to examine them in some detail later, but they may be summarised as follows. In 1998 the pursuer was working in the textile workshop in the prison. From February 1998 she started to experience difficulties in working with her supervisor, Mr John Telfer. She started to complain to her unit manager about these difficulties in April 1998. On 4 June 1998 she was so stressed that she went off work. Her doctor diagnosed her as suffering from work-related stress and prescribed anti-depressant medication. He supplied SPS with medical certificates. The pursuer told her unit manager that she could not work owing to work-related stress. She gave the same information to the human resources department of SPS and told them she was having to take medication for the stress. She went back to work on 14 September 1998. She experienced the same difficulties as before. SPS did nothing to help her. She made further complaints to the unit manager, the staff welfare officer and the governor of the prison. She was so stressed that she went off work again on 25 November 1998. Her doctor again certified her as sick by reason of work-related stress and he prescribed anti-depressants. This was an episode in a prolonged depressive reaction coded at F43.21 on the ICD10 classification of mental and behavioural disorders of the World Health Organisation. She was absent until 19 April 1999.

[3] The pursuer claims damages for the loss, injury and damage she suffered after her return to work in September 1998. She says it was caused by the fault of SPS. She avers that they knew or ought to have known that work-related stress had caused damage to her mental health during the period of her first absence from work from June to September 1998. She claims that it was their duty to take reasonable care to enable her to return to work without suffering further psychiatric injuries as a result of work-related stress. She specifies a number of particular duties of care in which she avers they failed.

[4] The defenders' counsel argued that the pursuer's pleadings, in so far as they were sufficiently specific, did not pass the test of relevancy. In so far as they were relevant, they did not give the defenders fair notice of the case they had to meet. The cases relied on by the Sheriff, Jamieson v Jamieson 1952 SC (HL) 44 and Miller v South of Scotland Electricity Board 1958 SC (HL) 20, did not address the issue of fair notice. It was necessary to have regard to the issue of fair notice when considering relevancy: Argyll & Clyde Health Board v Strathclyde Regional Council 1988 SLT 381; Smith v Advocate-General for Scotland OH, 19 January 2001, unreported.

[5] The defenders' counsel also advanced the following propositions:

(1) Where non-physical injury is concerned, the employer's duty is to take reasonable care to avoid causing psychiatric symptoms suffered to such a pathological degree as to constitute a psychiatric disorder.

(2) It follows that the pursuer must prove that it was reasonably foreseeable by the employer that such symptoms would be suffered. It is not enough to say that the employer should have foreseen that the pursuer would suffer distress or anxiety.

(3) As a matter of relevancy, the pursuer must not simply assert that that was reasonably foreseeable, but must establish facts from which the employer should have foreseen that such symptoms would be suffered. The employer must have fair notice of the facts the pursuer intends to establish.

(4) When considering whether the averred facts would be sufficient to establish the reasonable foreseeability of psychiatric illness, it is important to remember that 'stress' has acquired a vague, catch-all meaning, used by different people to mean different things (Hatton v Sutherland [2002] 2 All ER 1 at 8, para 7).

(5) It is easier to conclude that psychiatric illness was reasonably foreseeable if the employer was imposing or permitting demands on the employee which, judged objectively, were unreasonable, such as a heavy workload, or behaviour such as bullying which, so judged, was unreasonable. Later, developing this proposition in response to the reply by counsel for the pursuer, counsel for the defenders said that if there was nothing wrong with the working conditions, objectively viewed, and the pursuer had a perception of those conditions which was unfounded in fact, it was difficult to see that the employer had any duty to do anything about it. Negligence did not exist in the abstract, but could only be judged by reference to the particular duties desiderated (Morrison's Associated Companies Ltd v James Rome & Sons Ltd 1964 SC 160). If the pursuer's perception was not justified, there was no basis in fact for laying on the defenders a duty to take the steps she desiderated.

(6) A consideration highly relevant to the standard of care is whether or not the employer was imposing unreasonable demands on the employee.

[6] Counsel analysed in detail the judgment of the Court of Appeal in Hatton v Sutherland and the three cases conjoined with it, and the speeches in the House of Lords in the appeal in one of the latter cases, Barber v Somerset County Council [2004] 1 WLR 1089. She also examined Rorrison v West Lothian Council 2000 SCLR 245 and referred to Salisbury v Kirklees MBC [2001] CLY para 4485. She went on to scrutinise the pursuer's pleadings in detail. I shall refer to her criticisms when I consider the pleadings in later paragraphs. In the course of her scrutiny counsel cited other cases to which I shall also refer later.

[7] In reply, counsel for the pursuer adopted the whole of the Sheriff's reasoning. As to the principles to be applied where pleadings were challenged on grounds of relevancy or lack of specification, the appropriate test was to be found in Jamieson. Further, absence of specification was important in relation to a matter which was material to the pursuer's case, not in relation to background averments. The party invoking the plea must be justifiably ignorant of the case against him, and could not pray in aid matters which ought to be within his own knowledge. There must be a likelihood that lack of specification will cause him material prejudice.

[8] The pursuer's counsel then made submissions as to the principles applicable to the examination of averments relative to foreseeability, especially where the injury concerned was of a psychiatric nature, and applied these principles in his rebuttal of the defenders' attack on the pursuer's averments. He relied on Hatton and also referred to Walker v Northumberland County Council [1995] 1 All ER 737, Stevenson v East Dunbartonshire Council 2003 SLT 97 and Keen v Tayside Contracts 2003 SLT 500. He similarly made submissions about the principles applicable in an examination of averments of breach of duty, with reference to psychiatric illness, and applied them to the pursuer's pleadings, again under reference to Hatton.

[9] Counsel appeared to be agreed that the legal principles and their application in a case of this kind were authoritatively set out in the passage comprising paragraphs 1 to 35 of the judgment of the Court of Appeal in Hatton which was approved by all the members of the House of Lords in Barber. It would be idle to summarise or paraphrase these pages here. I have no difficulty in accepting the six propositions advanced by the defenders' counsel (set out in para 5 above), subject to two qualifications. First, in proposition (1) I would substitute the expression 'psychiatric illness' for the more elaborate formulation 'psychiatric symptoms suffered to such a pathological degree as to constitute a psychiatric disorder'. I appreciate, of course, that both here and in her proposition (4) counsel was properly concerned to draw a critically important distinction between a psychiatric illness, on the one hand, and on the other, the pressure or stress which is an unavoidable part of working life and which in some cases may lead to psychiatric illness.

[10] Secondly, nothing said in Hatton or elsewhere appears to me to support the developed form of counsel's fifth proposition. That was that if the pursuer's illness was caused by a perception of her working conditions which was unfounded in fact, the defenders had no duty towards her to take any of the steps by way of reasonable care which were desiderated in her pleadings (see para 5(5) above). I think that the correct view of the matter is this. '[T]he threshold question is whether this kind of harm to this particular employee was reasonably foreseeable' (Hatton at 13d, para 23). It is 'not the job but the interaction between the individual and the job which causes the harm. Stress is a subjective concept: the individual's perception that the pressures placed upon him are greater than he may be able to meet. Adverse reactions to stress are equally individual, ranging from minor physical symptoms to major mental illness.' (Hatton at 14a, para 24). 'All of this points to there being a single test: whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components: (1) an injury to health; which (2) is attributable to stress at work. The answer to the foreseeability question will therefore depend upon the interrelationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him.' (Hatton at 14b-c, para 25).

[11] Thus, if the employer knows or ought to know that an individual employee is liable to experience psychiatric illness caused by his or her reaction to his or her working conditions, however unexceptionable these may be when objectively considered, it is for the employer to consider whether there is anything he should do in the exercise of his duty of care towards that particular employee. 'If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of breakdown in mental or physical health, then the employer will have to think what can be done about it.' (Hatton at 14h-j, para 27.) In some unfortunate cases there may be nothing he can reasonably be expected to do. But it is not an answer to a charge of breach of duty to say that there was nothing objectively wrong with the employee's working conditions.

[12] I shall now consider the defenders' criticisms of the relevancy and specification of the pursuer's pleadings. I respectfully adopt the test stated by Lord McCluskey in Argyll & Clyde Health Board. His Lordship said:

[13] I shall apply that test to the pursuer's averments of (a) fact, (b) foreseeability and (c) breach of duty.

[14] The principal description of the working conditions which are said to have caused the pursuer to become ill through stress is given in article 2 of the condescendence. The pursuer attributes her stress to difficulties in working with her supervisor, Mr Telfer. It is not immediately obvious from her averments, however, whether these difficulties were caused by the pursuer's perceptions of Mr Telfer's conduct which was not in fact blameworthy, or by certain things Mr Telfer actually did which were in fact blameworthy, or by both her perceptions and his conduct. Thus, the pursuer appears to aver her perceptions when she says that she 'felt' unsupported and undermined by him. As to what he actually did, it is said that he frequently left her working on her own, and reversed disciplinary decisions she had made. Only one 'example' of the latter is given: the defenders are not given any notice of any other examples. It is not said that he was not entitled to leave her to work on her own, or to reverse her disciplinary decisions. It is also said that his management style was autocratic and distant, but no specification is afforded. It is averred that the defenders had not trained him in management and supervisory skills, but it is not said that he lacked such skills, and no specification is given of how he demonstrated any lack of such skills. It is also said that he did not accept suggestions she made (again, notice is given of only one instance) and did not inform her or consult her about the future work in the workshop, but again it is not said that he was not entitled to act in that way. On one view of the pleadings, the pursuer's theme seems to be no more than that she 'felt' this or that and 'found' the working environment with Mr Telfer extremely stressful. Accordingly the pleadings may be read as meaning that the pursuer's stress was caused by how she reacted to her working conditions and not by anything objectively unsatisfactory in these conditions. Her counsel appeared to suggest that that was how her pleadings were intended to be understood. He stated that her object was not to allocate blame for her stress: all he needed to show was that she was experiencing a level of stress which created a risk of psychiatric injury, and that the cause of the stress was her working conditions. On the other hand the pursuer offers to prove that two other named women 'found' Mr Telfer difficult to work with. If the pursuer's case is grounded on her personal reaction to her working conditions, the perceptions of other workers would appear to be neither here nor there.

[15] The pursuer's averments are confusing and convey the impression that they have not been carefully thought out and expressed. It is with much hesitation that I have concluded that the defenders have fair notice that the pursuer is founding on her reaction to her working conditions. Notwithstanding all that is said about Mr Telfer, the defenders do not have fair notice that any particular feature of her working conditions was objectively unsatisfactory. No case is pleaded to the effect that SPS are vicariously liable for any failures on the part of Mr Telfer, nor is any criticism made of the system of work provided to the pursuer by SPS. I am unable to appreciate the relevance of the averments about the two other women and I have excluded them from probation.

[16] The pursuer's averments relative to whether SPS knew or ought to have known that it was reasonably foreseeable that she would suffer psychiatric illness through stress as a reaction to her working conditions begin in article 3 of the condescendence. Her averments in article 2 about her complaints to the unit manager between April and June 1998 show no more than that she indicated to SPS that she found working with Mr Telfer difficult. The first intimations that something was medically wrong came in the shape of the medical certificates provided by her doctor which were given to SPS. Her treatment by her doctor with anti-depressant medication is narrated in article 3 and the terms of the certificates (no 5/1/1 of process) are narrated and incorporated in article 4. In the certificates the 'diagnosis of your disorder causing absence from work' is given as follows: on 8 June 1998, 'stress/anxiety'; on 15 June 1998, 'stress-related illness'; on 24 June 1998, 'work-related stress'; on 8 July 1998, 'stress-related illness'; and on 3 August 1998, 'stress/depression'. Thus SPS were told that the pursuer was absent from work because of a disorder which was work-related and was ultimately described as 'stress/depression'. In addition, the pursuer told the unit manager on the telephone on or about 14 June 1998 that she had been signed off work by her doctor due to work-related stress caused by having to work with Mr Telfer. One of her colleagues also told the unit manager that the pursuer was anxious and stressed and he must not let the difficulties she had experienced working with Mr Telfer happen again. Article 5 narrates that the pursuer met the Human Resources Department of SPS on 29 June and 31 July 1998 and told them that she was having to take medication for her stress which was caused by her having to work with Mr Telfer.

[17] In article 7 there are further averments about complaints made or information given to representatives of SPS after the pursuer returned to work on 14 September 1998. Counsel for the pursuer maintained that the pursuer's case was concerned with what SPS ought to have known before she went off work on 25 November 1998. I find that difficult to accept, however, since the pursuer's case of fault on record is based on the proposition that SPS knew or ought to have known that work-related stress had caused damage to her mental health during the period of her first absence from work from June to September 1998 (article 11, page 23, lines 19-22). Thus the averments in article 7 to which I have referred appear to be at best of doubtful relevance to the issue of foreseeability. I shall examine the averments in article 7 in more detail later. Here it is only necessary to say that I consider that sufficient is pleaded in the averments considered in the previous paragraph, taken at their highest, to bring home to SPS knowledge that the pursuer was unable to work and was being treated by her doctor for depression: they knew that she was receiving medication and that the doctor had described her as suffering from a work-related disorder ultimately described as 'stress/depression'. It seemed to be suggested by the defenders at the appeal, under reference to Rorrison, that the doctor had not diagnosed a psychiatric illness. If depression causes a person to be absent from work and to be treated with medication, he or she would appear to be suffering from an illness, and if that is not a psychiatric illness I am not sure what would be a more apt description. I have concluded that the pursuer has averred just sufficient on the issue of foreseeability to entitle her to inquiry. Counsel for the pursuer referred to Stevenson v East Dunbartonshire Council and Keen v Tayside Contracts, but these are I think illustrations of the application of the law to their particular facts.

[18] There remain averments on one matter which require notice. The Sheriff has already excluded from probation the second and third sentences of article 10 of the condescendence on page 21, lines 19-23, which incorporate an appendix to a report by a Dr Howard Khan which is in process (no 5/3/4). The Sheriff's decision on this point was not challenged. The pursuer goes on to say, however:

The defenders' counsel submitted that the latter averment should be deleted from the pleadings. Read literally, it means that the entire report is incorporated in the pleadings. The pursuer's counsel, however, sought and without opposition was granted leave to amend 'which is held' to 'which are held', thus incorporating only paragraphs 12 to 16 of the report. These paragraphs list a large number of papers and summarise the contents of some of them. The relevant rule of pleading is stated by Lord Macfadyen in Royal Bank of Scotland plc v Holmes 1999 SLT 563 at 570E-I where his Lordship comments on the passage in the opinion of Lord Avonside in Eadie Cairns v Programmed Maintenance Painting Ltd 1987 SLT 777 at 780E-F. The question is whether such incorporation is a satisfactory way of giving specification; and that depends on the nature of the case and the nature of the incorporated material. In the present case I am satisfied that the incorporation of these paragraphs is an acceptable way of giving the defenders notice of the identity of the papers relative to stress in prison staff on which the pursuer proposes to rely at proof. I therefore agree with the Sheriff's decision on this point.

[19] I have already pointed out in paragraph 16 above that the pursuer's case appears to be based on the proposition that SPS knew or ought to have known that work-related stress had caused damage to her mental health during the period of her first absence from work from June to September 1998 (article 11, page 23, lines 19-22). Her averments of duty must therefore be averments of duties which SPS should have fulfilled upon, or before, her return to work on 14 September 1998. Her averments of fact in article 7 should, I think, be understood as essentially a narrative of what occurred after that date, indicating the consequences of the alleged failures in duty on the part of SPS not later than 14 September 1998. Those averments should be understood as neither having any bearing on the issue of foreseeability nor providing any foundation for the averments as to the duties SPS should have fulfilled before that date.

[20] The defenders' counsel made detailed and cogent criticisms of the averments in article 7. It is not said that the various disagreements between the pursuer and Mr Telfer were drawn to the attention of SPS. The averment about an 'understanding' that a third member of staff would be in the workshop is unclear. There is an unspecific averment that the pursuer 'was left to carry out more than her fair share of the workload'; but no case is developed that the pursuer was overworked to the knowledge of SPS. There is an averment of a single instance when Mr Telfer did not support the pursuer when dealing with prisoners, with the implication that an attempt may be made to lead evidence of other instances of which the defenders have no notice. There follow averments that information was given to various officials at the prison. It is nowhere said, however, that that information was such that it ought to have put SPS on notice that the pursuer was at risk of suffering a psychiatric illness, or that SPS ought to have appreciated that by any particular time.

[21] The averments in article 7 are in my view unsatisfactory. I have decided that they may remain in the record simply as narrative, as I have said, and not as forming the basis of any case of negligence. Care will clearly have to be taken at inquiry to keep the evidence within bounds and not to allow evidence to be founded on of matters of which the defenders have had no fair notice.

[22] In article 11 the primary specific duty of SPS is expressed thus (article 11, page 24, lines 7-10):

There then follow a number of duties which amount to a duty not to require the pursuer to work with Mr Telfer. It is then said that esto it was reasonable for her to return to work with him, SPS should have provided her with a gradual and supervised return to duty, should have provided training for each of them, and should have monitored the situation; and then, when it became obvious that the pursuer was suffering stress, it would again have been the duty of SPS not to require them to work together.

[23] Before considering these duties in detail it will be convenient to notice that in addition to setting out these duties, the pursuer founds on the Management of Health and Safety at Work Regulations 1992 (SI 1992 No 2051) which were in force at the material time. In article 6 of the condescendence, among her averments relative to the circumstances after she returned to work on 14 September 1998, she avers (page 13, lines 3-11):

In her averments of fault in article 11 the pursuer avers (page 24, lines 4-7):

[24] Regulation 3(1) of the Regulations provides, so far as material:

Regulation 15 provides:

[25] Counsel for the defenders submitted that the pursuer's averments were irrelevant and cited Mitchell v Campbeltown Shipyard Ltd OH, 3 March 1998, unreported, and Cross v Highlands and Islands Enterprise 2001 SLT 1060. Counsel argued that breach of the Regulations did not impose civil liability and SPS had not been obliged to carry out an assessment to see whether there was any risk to the pursuer. Counsel for the pursuer, on the other hand, maintained that the averments were relevant. The 'relevant statutory provisions' referred to at the end of regulation 3 could include section 2 of the Health and Safety at Work etc Act 1974 which imposed a general duty to ensure, so far as reasonably practicable, the health of all employees. It was submitted that while neither regulation 3 nor section 2 imposed any civil liability, the averments were relevant to the issue of foreseeability: if SPS had carried out an assessment, the risk of the pursuer's suffering a psychiatric illness would have been reasonably foreseeable by them.

[26] It appears to me to be inescapable, standing the terms of the averments quoted above from article 11, that the pursuer is attempting to make a case at common law to the effect that a risk assessment of the kind required by the Regulations ought to have been made. The imputation of civil liability on that account is, however, forbidden by regulation 15. In any event the pursuer does not specify 'the relevant statutory provisions' or the 'requirements and prohibitions' they impose on SPS. It is not acceptable for counsel to provide a gloss at the Bar by referring to section 2 of the 1974 Act. Further, as Lord Osborne pointed out at the end of his opinion in Mitchell, there is no necessary connection between a common law standard of care and a standard of care imposed by statutory provision. Cross does not seem to me to assist the pursuer. I have reached the view that the pursuer's averments relative to the Regulations are irrelevant and must be excluded from probation.

[27] I return to the other averments of duty stated in article 11. It is said that it was the duty of SPS to take reasonable care not to require the pursuer to be assigned to work with Mr Telfer. SPS had, according to the pursuer's pleadings, two options: the first was to transfer Mr Telfer to another post within the prison, and the second was to transfer the pursuer to another post within the prison. Since it is the pursuer's position, as I understand it, that no blame is imputed to Mr Telfer for the pursuer's difficulties, it is difficult to see why the first option should have been to transfer him. That would also have required SPS to find another suitably qualified officer to take Mr Telfer's place as supervisor of the department. As the Court of Appeal said in Hatton at 16c, para 33, it may not be reasonable to expect the employer to rearrange the work for the sake of one employee in a way which prejudices the others. Thus the duty to transfer Mr Telfer seems to me to be of at best doubtful relevancy. As to transferring the pursuer, she says in article 6 on page 13, lines 21-24, that she would have gone if SPS had 'identified a suitable opportunity for her either in HMP Edinburgh or another prison'. It is not clear, therefore, whether the pursuer would have accepted a transfer to any other post within the prison, as she avers in article 11, or only to a post there or elsewhere which she would have regarded, for reasons she does not disclose, as 'suitable', as she says in article 6. Thus how the duty to transfer the pursuer should have been fulfilled is not clear, so that the averment of that duty is also of doubtful relevancy.

[28] The pursuer then states an esto case pleaded on the basis that it was reasonable for her to return to work with Mr Telfer. Here she desiderates 'a gradual and supervised return to duty such as the one actually provided to the pursuer on her return to work in April 1999'. This duty appears to be related to the narrative of the SPS sickness absence policy in article 6 on page 12, lines 15 to 25. It is clear from that narrative that the provision of a gradual return to work is not mandatory but is within the discretion of SPS. It is not clear whether the reference to the gradual and supervised return to duty in April 1999 is merely descriptive or is intended to imply that SPS were negligent in not providing such a return in September 1998. If the latter, it is of doubtful relevancy because it is trite that if some different course is taken after an incident it does not follow that the taking of the course previously followed was a breach of duty.

[29] The next duty averred is to provide training to Mr Telfer to enable him to fulfil his supervisory and management functions towards the pursuer. Since, as I have said, no blame is attributed to him and no specification is given of how he failed in the performance of these functions, the need to train him is far from obvious. It is also said that SPS had a duty to train the pursuer in assertiveness and textile work. It is not said, however, that the pursuer lacked assertiveness, that that contributed to her difficulties and that that is something SPS knew or ought to have known. It is said, on the other hand, in article 2 on page 2, lines 20-22, that the pursuer had no background in textiles and had not received any specific training in working with textiles; but her difficulties are ascribed not to that but to working with Mr Telfer. Counsel for the pursuer referred to a report which is the subject of averments in article 8 of the condescendence on page 20. Counsel for the defenders disputed the pursuer's interpretation of the report and submitted that in any event it was for the court, not for the author of a report, to determine what the law required of the defenders: Tomlinson v Congleton Borough Council [2003] UKHL 47, unreported, Lord Hobhouse of Woodborough at para 78. Since the report is not incorporated in the pleadings and counsel were at variance as to its import, I am unable to derive any assistance from it.

[30] I have found the pursuer's averments of fact, foreseeability and breach of duty to be both confused and confusing. It is not remarkable that they attracted a sustained bombardment by counsel for the defenders. I have concluded with hesitation, however, that the pursuer has averred just sufficient to entitle her to inquiry by way of proof before answer into the averments which I have not excluded from probation.

[31] Although the Sheriff has also allowed a proof before answer, it has been necessary to recall his interlocutor for two reasons. First, he repelled the defenders' preliminary plea, which is inconsistent with the allowance of a proof before answer: the plea must remain standing on record. Secondly, it is desirable to identify more precisely the averments which the Sheriff correctly excluded from probation. My interlocutor also excludes from probation the other passages in the pleadings to which I have referred above and allows various amendments proposed by the pursuer's counsel, without opposition, at the Bar. In addition I have appointed a hearing on expenses. After disposing of any questions of expenses at that hearing I shall remit the cause to the Sheriff to proceed as accords.