Scottish Sheriff Court Decisions

HAMILTON SHERIFF COURT
Sheriff Principal B A Lockhart	A4094/07   JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART   in causa   Patricia Mair Pursuer and Appellant   against   DSG International Plc Defender and Respondent

 

Act: Mr Hutcheson, Solicitor, Glasgow

 

Alt: Ms Smart, Advocate

 

 

_____________________________________________________________________________

HAMILTON: 2 August 2013

The Sheriff Principal, having resumed consideration of the cause; refuses the appeal and adheres to the sheriff's interlocutors of 19 January 2012, 28 August 2012 and 17 September 2012 complained of; reserves all question of expenses in respect of the appeal and appoints parties to be heard thereon on a date to be afterwards fixed.

 

 

 

 

NOTE:

Background to the appeal

[1] This is an action for damages, at the instance of the pursuer who was employed by the defenders, trading as "PC World", at their East Kilbride store between 2003 and 2005. The pursuer seeks reparation for loss, injury and damage sustained as a result of breach of duty on the part of the defenders or for those whom they are vicariously liable. Pursuer avers that during her employment and up until its termination in December 2005, she was bullied intimidated, verbally abused, harassed and physically assaulted by the defenders manager, "xx". At no time does the pursuer aver her job description, the nature of her employment, or her status in relation to the management structure at her place of work. The defenders operation at East Kilbride was a store known as "PC World". Its size is not averred but, as is commonly known, it is a large retail outlet dealing in the sale of computers and related electrical items. It would appear that the pursuer was a shop floor worker. The pursuer's grievance is almost entirely with the manager of the retail outlet in East Kilbride, one "xx". She avers at the outset that during her period of employment she was bullied, intimidated, verbally abused, harassed and physically assaulted by "xx" She sets out in greater detail in her pleadings (at article 3, pages 2 and 3) certain specific instances of bad behaviour towards her by "xx". She avers that she asked him on several occasions to desist from his misconduct (article 3, page 2). She avers, in terms, that she was "shocked and distressed" by "xx" conduct. She further avers that his conduct "caused distress...and caused her to lose sleep" (article 3, page 3). On another occasion in March 2005 she felt "sick with apprehension". He subsequently avers that, in or about July 2005, she "was unable to endure "xx" chronic serious misconduct towards her. She became unfit to attend work" (article 3, page 3). She further avers that she consulted regularly with a consultant clinical psychologist, and that the defender's, or at least, "xx" was aware of these consultations, as he "routinely ridiculed (her) for attending with her psychologist" (article 3, page 4). There is no suggestion that the pursuer advised "xx", or anyone else within the defender's organisation her attendance at the consultant clinical psychologist had anything to do with her work experience. In relation to liability, the pursuer avers an implied duty on the defender's to take reasonable care for her health and safety and to refrain from causing injury to her or causing her to suffer harm. She further alleges breach of these duties by the defenders and "xx", constituted by "xx" behaviour towards her. She avers that the defenders were aware of that behaviour. After averring in or about December 2003, "xx" repeatedly ridiculed the breakdown of the pursuer's marriage, during a conversation with the pursuer about her computing skills, she avers he refused her request to desist, and repeated the conversation. She was distressed by his conduct and was unable to continue working. Thereafter the pursuer reported the incident to the defender's human resources department. "Xx" admitted his conduct to them. Said conduct upset the pursuer, who required to leave work, and who thereafter was absent from work on sick leave for several days. There are no averments of any other reference to the defender's human resources department. In article 3 at page 4 of the record she avers "she reported "xx" misconduct towards her to the defender's manager, Paul Cassidy, in late 2004 and the defender's manager Alex Williams during 2004". There is no specification of what was reported or its effect upon her. Crucially, there is nothing to suggest that she reported anything which would have highlighted to the defenders her susceptibility to psychological injury. The pursuer further avers that she "attended a grievance hearing on 18 November 2005". There are no averments of what was raised at the grievance hearing. In any event, the pursuer had, by then, resigned from her employment. Her case is based on negligence, and vicarious liability for the actings of "xx". It is the pursuer's case that the result of the actings and omissions of the defenders and the said "xx", the pursuer suffered damage to her health (article 6). She suffered a substantial increase in the level of her psychological vulnerability. As I understand her averments, she claims, as a result, to have experienced anxiety, stress, distress, humiliation, embarrassment, low mood, loss of sleep and eating disorder. Various medical reports are incorporated into the pleadings.

 

[2] The case originally came before the Sheriff in debate on 6 June 2011. This was in fact the fourth debate which had been assigned. On that date the pursuer's solicitors submissions in reply to counsel for the defenders had not been completed and the diet was continued until 7 September 2011. On that date, rather than completing his submissions, the pursuer's solicitors lodged a lengthy minute of amendment (item no 30 of process) for the pursuer. The minute of amendment was opposed. The Sheriff allowed the minute to be received and ordered answers and adjustment. After hearing parties thereon, the Sheriff refused to allow the record to be amended in terms of the minute of amendment on 19 January 2012. In the section of his Note entitled "Decision of the Court", he stated inter alia;-

"The matter presently before the court is the pursuer's motion to amend the closed record....as stated at page 3 of this note, I reached the view, on 7 December 2011, that it could not be said that it was too late for amendment to be considered...In approaching the question of whether or not the amendment addresses the real question in controversy between the parties, it appears to me that there are two such questions at the present time. The broader question, running through the action, is the question of whether or not there exists circumstances which give rise to a duty of care upon the defenders. The narrower issue, and the issue which I had thought the minute of amendment was intended to address, was whether or not the pursuer's averments were sufficient for enquiry, standing the test laid down in the recent cases such as Hatton v Sutherland 2002 2 AER 1 and other reported decisions. Turning now to the minute of amendment as adjusted (item 30 of process) it does not seem to me that it clarifies either of these issues. While counsel for the defenders did not in terms challenge the vast majority of the proposed new averments that is not the test... issues of lateness and prejudice also arise. Having considered paragraphs 1 to 40, inclusive, these either add further specification to incidents already averred on record or, in the case of paragraphs 8, 14, 16, 25 and 29, appear to introduce further incidents, not previously averred. No explanation was given about why these could not have been averred as part of the defenders case at an earlier date. There is no suggestion that the information has only recently come to light... Staying with the minute of amendment meantime, at paragraphs 40 to 47, these appear to be bolstering of the pursuers already stated contention that the risk of psychological harm ought to have been reasonably foreseeable, given the size of the defenders operation, and the extreme nature of "xx" conduct. Paragraphs 48 and 49 stated additional pleas-in-law (in fact 48 provided for an addition to an existing pleas-in-law) as these were not supported by additional rule 18(8) notes from the pursuer, they fall to be rejected.

The Sheriff continued, "I have some sympathy for the defenders, given the position they find themselves in, confronted with a lengthy minute of amendment. The defenders have sought, from the outset, to take the pursuer's pleadings to debate. The primary focus of their attack on the pursuer's pleadings is that the pursuer does not aver a case to the standard which the law, as set out in the cases of Hatton v Sutherland (Supra) and related cases, requires. The debate went ahead at the fourth time of asking, after the pursuer had been given an opportunity to amend. The pursuer's agent made no motion to amend (further) throughout the first day of the debate...His argument, as I understand it - although I have yet to hear his arguments in full - is that the conduct of "xx" was so extreme that it ought to have been reasonably foreseeable to the defender's that psychological harm to the pursuer would result... No adequate explanation has been tendered for the late stage at which these averments are sought to be introduced... I accept the explanation from counsel for the defenders that a number of the new matters cannot be properly investigated, due to the non-availability of witnesses. For the pursuer's solicitors to suggest that the defenders have effectively "brought this on their own heads" by failing to properly investigate the pursuer's internal grievance procedure in 2004 in my view is quite absurd...

In any event, I am not satisfied about the relevance, in relation to disputed issues, of the new averments sought to be introduced. As Mr Hutchinson has yet to complete his submissions on the debate, I am not entirely clear on what his position is in relation to cases such as Hatton v Sutherland. As far as I can detect so far, his position appears to be that he accepts that these cases represent the law in general terms - but proceeds on the basis that when the behaviour of the defender's manager is "of the vilest type", it ought to have been reasonable foreseeable, particularly to a large employer, that psychological harm would result. That is not an approach which has been taken in the reported cases to date, even when many of the defenders have been large organisations.

It was clear from the submissions of counsel for the defenders that she did not consider that the minute of amendment addressed her fundamental complaint against the pursuer's pleadings. I share counsel's concerns... It seems to me that the issue in dispute between the parties is not whether the pursuer has a sufficient number of detailed averments in this conduct by "xx" set out on record but whether or not there is sufficient in these averments to constitute the necessary link between the pursuer suffering psychological injury and it being reasonably foreseeable to the defenders that such injury would be caused to the pursuer as a result of that misconduct.

The minute of amendment, in my opinion, does not address that issue. It comes late in the day, with no clear justification for the lateness; it causes prejudice to the defenders by way of inconvenience delay and further expense. It does not alter the basis of the case on record. Accordingly I exercise my discretion against the allowance of the minute of amendment. "

 

[3] A further debate took place on 28 May and the Sheriff issued an interlocutor on 28 August 2012 in which he dismissed the action. The debate accordingly took place on the basis of the pleadings contained in the closed record lodged on 2 March 2011 (No 20 of process). The Sheriff sets out in great detail the submissions which were made to him and the relevant law. In his note the Sheriff states "inter alia":-

"57. The relevant law in relation to psychological injury to employees is now reasonably well settled....

58. As was stated by Lord Reed in Rorrison v West Lothian College 2000 SCLR 245 at 254 A - B, it was at that time

"...accepted that it was essential for the pursuer to establish that (the management) ought to have foreseen that the pursuer would suffer not merely emotional upset but psychiatric illness."

59 In the view of the court, there has to be something in the pursuer's pleadings which -

"...if proved could establish that (the management) ought to have foreseen that the pursuer was under material risk of sustaining a psychiatric disorder in consequence of the behaviour towards her. They might have foreseen that she would at times be unsatisfied, frustrated, embarrassed and upset but that is a far cry from suffering a psychiatric disorder....It is only if (symptoms) are liable to be suffered to such a pathological degree as to constitute a psychiatric disorder that a duty of care to protect against can arise; and that is not a reasonably foreseeable occurrence...unless there was some specific reason to foresee it in any particular case,

60 In the leading opinion of Hale L J in the case of Hatton v Sutherland (supra) from the English Court of Appeal, the question of foreseeability is addressed at paragraph [23] as follows -

"The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. The question is not whether psychiatric injury is foreseeable to a person of "ordinary fortitude". The employer's duty is owed to each individual employee, not to some as yet unidentified outsider".

Hale L J went on to say, at paragraph [25] et seq:-

"All this points to there being a single test: whether harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned...a number of factors are likely to be relevant. [26] These include the nature of the work...it will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable...[27] More important are the signs from the employee himself. Here again, it is important to distinguish between signs of stress and signs of impending harm to health...[29] Unless he knows of some particular problem or vulnerability, the employer is usually entitled to assume that his employee is up to the normal pressures of the job. [31]...In view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it".

61 In the subsequent Scottish case of Taplin v Fife Council 2003 SLT 653, Lord Philip in dismissing the case as irrelevant on Procedure Roll, followed the approach taken in Sutherland v Hatton (supra). He quoted, with approval paragraphs [24] and [25] of that case and summarised the situation as follows-

"...before a duty to prevent psychiatric injury can arise, the employee must establish that a harmful reaction to the pressures of the workplace, in the form of actual psychiatric injury, was reasonably foreseeable in him as an individual".

The opinion goes on to state, at para [13] -

"Unless the employer knew of some particular problem of vulnerability, he was usually entitled to assume that his employee was up to the normal pressures of the job and to take at face value what he was told about his ability to cope. So he was not generally required to make enquiries into the psychological state of an employee who was apparently coping in order to ascertain whether or not he was suffering from psychiatric injury".

62 In the subsequent Scottish case of Robertson v Scottish Ministers 2007 CSOH 186 the court again followed the line of authority established in Hatton v Sutherland (supra). The court held that no relevant common law case was pled against the employers, due to lack of -

"...any sufficient averments which, if proved, would entitle the court to hold that the (employers) ever knew or ought to have known that the pursuer was at risk of developing some serious psychological illness. It is not even clearly averred that they knew or ought to have known that she was the victim of bullying...and in my view the pursuit of an investigation proves nothing as to the state of the defenders knowledge regarding the pursuer's state of health...It is well settled that a claimant must do more than show a causal link between psychological illness and stress at work. What is required is a causal link between that condition and the employers' alleged breaches of duty".

63 In relation to the vicarious liability case pled by the Pursuer, the law in that area is also now settled, following recent consideration by superior courts. Following the decision of the House of Lords in the English case of Lister v Lesley Hall Limited 2002 1 AC 15, which reviewed a range of earlier cases, the question to be considered was clarified. The question of whether an employer is to be vicariously liable for the actings of his employee is to be answered by deciding whether the actings are so "closely connected" with the employment that it would be "fair and just" to find the employer liable. The decision of the House of Lords in Lister v Lesley Hall (supra) was applied by the Inner House in the recent Scottish case of Wilson v Excel UK Ltd 2010 SLT 671.

64 Accordingly, and in my view, the relevancy of the Pursuer's pleadings falls to be assessed, in relation to the case based in negligence, by the test set out in Hatton v Sutherland (supra); and, in relation to her vicarious liability case, by reference to the test set out in Lister v Lesley Hall Ltd (supra), applied in Wilson v Exel UK Ltd (supra).

65 Mr Hutcheson for the pursuer submitted that further, more recent case law was applicable. In relation to the case in negligence, he referred to cases such as Keen v Tayside Contracts 2003 SLT 500 and Harrhy v Thames Trains Limited 2003 EWHC 2120 as authority for the proposition that one delictual act could be enough to cause psychological injury and that, accordingly, prior knowledge of a susceptibility of the employee to such injury could not be required. I have had regard to these cases. The cases referred to by Mr Hutcheson are clearly cases of an entirely different nature. The present case, and the case of Hatton v Sutherland, and related cases, are cases of stress at work. The injury is not said to arise as a result of one event. Rather, the injury is a culmination or accumulation of various circumstances and the test is designed to identify the employer who continues to expose employees known to be vulnerable, to these ongoing stresses. That is entirely different from the "nervous shock" cases, involving one single episode of acute stress, to which Mr Hutcheson referred. I can find nothing in the reasoning of the courts in cases such as Keen v Tayside Contracts and Harrhy v Thames Trains Limited (supra) to suggest that a single acute episode capable of producing psychiatric injury will suffice, thereby avoiding the need to aver prior susceptibility to such injury, Indeed, the opinion of Lady Paton in Keen v Tayside Contracts (supra), at para [69] would tend to suggest the opposite. In cases of ongoing bullying or stressful situations, it is the test in Hatton v Sutherland (supra) which should be applied.

66 Moving on to the cases of vicarious liability, I have likewise found the cases relied on by Mr Hutcheson viz: Majrowski v Guy's & St Thomas's NHS Trust 206 UK HL 34 and Vaickuviene v J Sainsbury Plc COSH 26 April 2012 to be of little assistance. These are cases where harassment in terms of the provisions of the 1997 Act applies. The pleadings, in both of the above cases, refer to harassment in terms of the 1997 Act. The pursuer's case before this court does not rely on the 1997 Act. The pursuer's case on record is set out on the basis that the defenders are vicariously liable for the intentional and sometimes violent actions of her manager "xx". Rather than a claim based on "xx" ongoing harassment of the pursuer, the claim is pitched, in relation to "xx" violent acts, in a manner akin to the situation which arose in Wilson v Excel. Accordingly, it seems to me that an analysis of the pleadings directed to the "close connection" of these acts and "fair and just" test, rather than an analysis of a course of harassment, is the way to proceed. Lady Clark of Calton, in deciding the case of Vaickuviene v J Sainsbury plc (supra) clearly distinguished the averments in the case before her from the averments in Wilson v Excel (supra) on the basis that the action before her was founded on conduct amounting to harassment in terms of the 1997 Act.

67 On testing the relevancy of the pursuer's averments in relation to negligence, I cannot find sufficient averments which, if proved, would entitle the court to hold that the employers knew or ought to have known that the pursuer was at risk of developing some serious psychiatric illness. Nor are there averments to show that the defenders knew of any particular problem or vulnerability. The averments in Article 3 of Condescendence refer, in varying degrees of detail, to "xx" conduct towards the pursuer. The pursuer avers that she "was distressed by his conduct..." presumably the conduct last referred to, viz: "repeated ridiculing of the breakdown of her marriage during a conversation with her about her computing skills". It is averred that "Thereafter, the pursuer reported the incident to the defender's Human Resources Department". There is no specification of what was reported. More importantly, there is no averment of any report of the effects which this conduct might have had upon the pursuer, thereby highlighting any vulnerability. Even if it had been, the averments suggest that the conduct "upset the pursuer".

68 The other reports to the defenders alluded to by the pursuer are also in article 3, at page 4 of the record. She baldly avers that she "Reported "xx" misconduct towards her to the defenders' manager, Paul Cassidy, in late 2004 and the defenders' manager Alex Williams during 2004". There is no specification of what was reported, or its effect upon her. Crucially, there is nothing to suggest that she reported anything which would have highlighted to the defenders her susceptibility to psychological injury. The pursuer further avers that she "attended a grievance hearing on 18 November 2005". Again, there are no averments of what was raised at the grievance hearing. In any event, the pursuer had, by then, resigned from her employment.

69 In summary therefore, an analysis of the pursuer's averments on record fails to identify "...any sufficient averments which, if proved, would entitle the court to hold that the defenders ever knew or ought to have known that the pursuer was at risk of developing some serious psychiatric illness. It is not even clearly averred that they knew or ought to have known that she was the victim of bullying". (Taken from Robertson v Scottish Ministers (supra), referred to in para 62 above). The pursuer's averments are irrelevant, and her action is dismissed."

 

[4] The pursuer now appeals against the Sheriff's interlocutor of 28 August 2012. The case having been opened up by the marking of that appeal, she also appeals the Sheriff's refusal to allow the Minute of Amendment in his interlocutor of 19 January 2012 and his disposal of expenses on 17 September 2012 when he found the defenders entitled to the expenses of the cause and certified the debate and associated amendment procedure as suitable for the employment of junior counsel.

 

[5] I propose to deal with this appeal under the following heads;

(A) The Sheriff's decision on 19 January 2012 in which he refused to allow the record to be amended in terms of the pursuer's Minute of Amendment No 30 of process.

(B) The pursuer's case in respect of breach of duty.

(C) The pursuer's case of intentional harm.

(D) The appeal against the award of expenses on 18 September 2012.

 

(A) The Sheriff's decision on 19 January 2012 in which he refused to allow the record to be amended in terms of the pursuer's Minute of Amendment No 30 of process.

[6] The Sheriff's powers in relation to amendment of pleadings are set out in Rule 18 of the Sheriff Court Ordinary Cause Rules. The relevant parts of the Rule 18 in this case are as follows:-

"18.2.(1) The Sheriff may, at any time before final judgement, allow an amendment mentioned in paragraph (2).

(2) Paragraph (1) applies to the following amendments:-...C an amendment of a condescendence, defences, answers, pleas-in-law or other pleadings which may be necessary for determining the real question in controversy between the parties."

 

[7] Counsel for the defenders stated to me that, before the Sheriff, she had opposed the minute of amendment of the pleadings on two grounds. First, the late intimation of further averments of fact unfairly prejudiced the defenders. The Minute of Amendment introduced averments of a number of further incidents, which had taken place as long ago as 2003 and 2004. A number of the persons named in the Minute of Amendment in relation to these incidents could no longer be traced. The defenders were prejudiced. This was not a prejudice which could be cured by adjournment and/or expenses. Secondly, the Minute of Amendment attempted to introduce at a late stage further duties said to be incumbent upon the defenders (in paras 42 to 44), but did not address the fundamental issue of the relevance of the pursuer's case on record.

 

[8] Counsel noted that the Sheriff reported that in relation to a first ground of objection, it was highlighted that even the receipt of the Minute of Amendment for investigation and possible answer had caused the defenders considerable inconvenience and expense. Since receipt of the Minute of Amendment the defenders' solicitors had precognosed no less than 24 witnesses in an attempt to investigate the detailed matters referred to. While they had been able to answer some of the new allegations of fact, they had been unable to properly investigate the incidents highlighted in paras 12,27,29,31 and 33 of the Minute of Amendment largely due to the fact that material witnesses could not now be traced. There was the obvious point that witnesses' memories of events some 10 years previously would be somewhat vague. Secondly, it was submitted at paras 42 and 43 of the adjusted minute of amendment sought to introduce further duties of care said to be incumbent on the defenders. At para 44 the pursuer sought to introduce a further direct case against "xx". Neither of these matters, it was submitted, were relevant to the case already on record against the defenders. The proposed new averments did nothing to remedy the deficiencies in the case on record. As far as the proposed averment in para 44 was concerned (in which the pursuers sought to introduce a further direct case against "xx"), this did not assist the pursuer's vicarious liability case against the defenders. If the pursuer now sought to prove a case whereby "xx" intended to directly cause harm to the pursuer then, there was no requirement to prove foreseeability in relation to him. However, these averments would be quite irrelevant to a vicarious case against the defenders. In the present action, if the pursuer sought to rely on direct actings of "xx", then her case was akin to that of Wilson v Excel210SC671, and following the reasoning in that case no liability would attach to the defenders.

 

[9] As far as the duties of care sought to be introduced by paras 42 and 43 were concerned these attempted to add to the case against the defenders. They state steps that the pursuer ought to have been taken by the defenders in implement of their duty of care. It was submitted that these averments, to be relevant, had to set out what ought to have been reasonably foreseeable to the defenders. There was no specification of any reason why the defenders ought to have monitored the behaviour of "xx". It was submitted that the defenders alleged failure to take prompt action against "xx" were not relevant to their duties to the pursuer. Para 43 averred in some detail about the size of the defenders' operation. It was counsel's submission that the Minute of Amendment was correctly refused, given the late stage of the proceedings that it was sought to be introduced. It would result in a further debate, if allowed. Moreover, and most importantly, it was said that the Minute of Amendment failed to answer the defenders' basic criticism of the pursuer's pleadings was that they did not plead facts to show that the pursuer was at risk of psychiatric harm which ought to have been reasonably foreseeable to either "xx" or the defenders.

 

[10] Solicitor for the pursuer stated to me that he had submitted to the Sheriff that only five of the 48 paragraphs had been singled out as being areas where the defenders had been prejudiced by an inability to investigate. Essentially the amendments provided further specification of incidents which were already on record. As far as the averments regarding "xx" intention to cause harm being relevant to a vicarious liability case against the defenders, it was inherent that everything "xx" did that his actions were intentional i.e. intentional of causing harm. Regarding the competence of a case based on vicarious liability, it was the pursuer's submission that the court could not, in the context of a Rule 18.3 hearing on the issue of whether or not to allow the Minute of Amendment, look in detail at whether or not these were relevant to the case of vicarious liability. The amendment should be allowed and at any subsequent debate he would argue that "xx" was acting in the course of his employment, that the harm to the pursuer occurred during that employment and that there was vicarious liability.

 

[11] Referring to the defenders' suggestion that the foreseeability case was not improved by the proposed Minute of Amendment, this was accepted by solicitor for the pursuer. It had never been the pursuer's case that she had told the defenders of the effects of "xx" conduct upon her. It was not accepted that any duty fell upon the pursuer as a lower grade employee, to report the actual outcome of "xx" conduct towards her.

 

[12] The Sheriff records that he posed the question to solicitor for the pursuer of where within the pursuer's case was it averred that it ought to have been reasonably foreseeable to the defenders that "xx" conduct would cause psychological harm to the pursuer. It was the pursuer's position that she did not have to report the effect of the conduct on her when it was so extreme that any employer, the size of the defender's organisation, ought to have been aware of the likelihood of psychiatric harm being caused.

 

[13] I have come to the view that the Sheriff, in the exercise of his discretion, was entitled to refuse to allow the record to be amended in terms of the pursuer's Minute of Amendment. The incidents about which averments were then sought to be introduced in 2011 occurred between 2003 and 2005. There was no acceptable explanation for this delay. The recollection of witnesses, even if traced, would in all probability be unsatisfactory. It was not appropriate to introduce new duties of care, requiring further research of the law and further legal debate at this very late stage. It was quite inappropriate at this late stage to introduce a case of intentional harm on the part of "xx". Moreover, and most importantly - and this was accepted by solicitor for the pursuer - the amendment did not add anything to the issue in dispute between the parties which the Sheriff had described as "not whether the pursuer has a sufficient number of detailed averments in this conduct by "xx" set out in record, but whether or not there is sufficient in these averments to constitute the necessary link between the pursuer suffering psychiatric injury and it being reasonably foreseeable to the defenders that such injury would be caused to the pursuer as a result of that misconduct."

 

[14] It is clear from the authorities that psychiatric or psychological harm must be foreseeable in the pursuer as an individual. In particular I attach weight to the following cases:-

(i). Taplin v Fife County Council (supra) at 658 A-B where Lord Philip said

"17. The pursuers approach to this action on record and in argument, was, as I understood it, that the difficulties she had to contend with at work were so overwhelming that it was or ought to have been reasonably foreseeable to the defenders that their employees would suffer psychiatric injury

18. Against the background of law set out in Sutherland v Hatton I do not consider that that approach can constitute a relevant case. As I have already indicated, before a duty to prevent psychiatric injury can arise, the foreseeability of such injury to the pursuer as an individual must be proved. Before it can be proved, the pursuer must make sufficient averments of facts and circumstances which demonstrate the way in which the risk of psychiatric injury to her was reasonably foreseeable"

 

(ii). Hatton v Sutherland (supra) where Hale LJ stated

"23. ...the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. The question is not whether psychiatric injury is foreseeable to a person of 'ordinary fortitude'. The employer's duty is owed to each individual employee, not to some as yet unidentified outsider. To found reasonable foreseeability on the part of the defenders, there must be management knowledge of a vulnerability to psychiatric harm"

 

(iii). Hatton v Sutherland (supra) Hale LJ para 205

"...it is impermissible to reason that because a defender has behaved unreasonably the risk of psychiatric injury should have been foreseen. Equally it is impermissible to reason that because an injury has resulted from stress at work it has resulted from an employer's breach of duty."

 

(iv). Rorrison v West Lothian Council (supra) at 254 D-E Lord Reed stated

"I can find nothing in these matters (or elsewhere in the pursuer's pleadings) which, if proved, could establish that Andrews and Henning ought to have foreseen that the pursuer was under a material risk of sustaining psychiatric disorder in consequence of their behaviour towards her. They might have foreseen that she would at times be unsatisfied, frustrated, embarrassed, and upset, but that is a far cry from suffering a psychiatric disorder. Many, if not all, employees are liable to suffer these emotions, and others mentioned in the present case such as stress anxiety loss of confidence and low mood. To suffer such emotions from time to time, not least because of problems at work, is a normal part of human existence. It is only if they are liable to be suffered to such a pathological degree as to constitute a psychiatric disorder that a duty of care to protect against them can arise; and that is not a reasonably foreseeable occurrence (reasonably foreseeable, that is to say, by an ordinary bystander rather than by a psychiatrist) unless there is some specific reason to foresee it in a particular case. I can see not such reason in the present case"

 

[15] In my opinion the employer needs a warning that the pursuer's mental health is at risk - the pursuer's averments are irrelevant in that regard. The pursuer's case is framed on negligence, so it is for the pursuer to show in their pleadings that the defenders ought reasonably to have foreseen that she would be exposed to a risk of psychological or psychiatric illness as a result of the defenders or "xx" failure of duty. In this case, there is no notice of any risk of psychiatric harm. The pursuer does not aver how the defenders knew or ought to have known of a vulnerability to psychological or psychiatric harm in the pursuer which would result from "xx" behaviour.

 

[16] In my opinion it is essential that what is reasonably foreseeable is not upset or distress but the risk of psychological illness (Rorrison v WLC (supra) at 254 B to F, Taplin v Fife Council (supra) at 657 I and Robertson v Scottish Ministers (supra) para 7 before a duty of care can arise. The pursuer does not plead why it should have been reasonably foreseeable to the defenders that psychological harm would result from any conduct on the part of "xx", rather than stress or emotional upset, and avers no factual basis for such a conclusion.

 

[17] In my opinion the Sheriff properly concluded that the Minute of Amendment did not address the "reasonably foreseeable" issue in this case. The amendment came late with no clear justification for lateness. It caused the defenders' inconvenience, delay, prejudice and further expense. It introduced further duties and a case of intentional harm against "xx" which in my view come unacceptably late. I am not prepared to hold that the Sheriff erred in the exercise of his discretion by refusing this Minute of Amendment.

 

(B) The pursuer's case in respect of breach of duty.

[18] Submissions in respect of this issue fall to be considered in light of the record which was lodged on 2 March 2011 (No 20 of process). I have set out the basis of the pursuers case on record in para 1 hereof. It was submitted on her behalf that the nature and circumstances of this misconduct rendered it reasonably foreseeable that psychological injury might ensue. I was referred to the averment in article 5 "Separatim, it was reasonably foreseeable that persons such as the pursuer would suffer psychological injury as a consequence of the type of conduct herein before averred." It was submitted this was the crux of the matter. There was a real risk, on the face of such behaviour, of psychological harm resulting. It did not require to have been reported. It was submitted it was an established principle that damages may be recovered for loss injury and damage which is a reasonably foreseeable consequence of delict. It was submitted that the characteristics of the employer were relevant, including the size, scope and resources available to them. It was uncontentious that the defenders were a large retail outlet. It was submitted that these resources and specialist Human Resources Departments of this multi -national organisation would have allowed the defenders to educate themselves on the possible consequences of intense long standing bullying by someone in a position of control. It was submitted that a continuing pattern of bullying would place unreasonable pressure on an employee. I was invited to consider the conduct averred on its own and to ask the question - could it truly be said that psychological injury was not a reasonable foreseeable consequence of such conduct. Moreover could the court properly decide this issue without hearing evidence. It was suggested the court was being asked to judge what may or may not be reasonably foreseeable to a multi-national employer such as the defenders. Since the court could not express any informed view without hearing evidence from the employers themselves about what was or not foreseeable to it. It was suggested the court could be assisted by independent expert evidence regarding knowledge which might reasonably be attributed to such a large employer as the defenders, with its own dedicated Human Resources Departments. It was suggested the court was not properly equipped to make a finding by relying effectively on judicial knowledge of what may have been known to and foreseen by these defenders. It was submitted that the case of Hatton v Sutherland (supra) clearly indicates foreseeability may be established by circumstantial evidence and does not depend upon any duty of reporting. It was submitted that it was established that foreseeability may arise from the nature and course of delictual conduct. When determining what ought to have been in the mind of a large employer, it was appropriate to hear evidence from that large employer or from another expert who can speak to such expectant knowledge. Foreseeability is ordinarily a matter of proof and not relevancy. Only in the clearest case should a reparation case be dismissed without enquiry.

 

[19] I was referred to the well known case of Miller v SSEB 1968 SLT(HL) 229 where Viscount Simonds stated at 234 :-

"That in such cases where the result may often turn on fine distinctions, it is undesirable, except in a very clear case, to dismiss an action on the ground that the pursuer's averments are irrelevant and insufficient in law."

 

[20] It was submitted that it cannot be said in this case that this was "a very clear case" where a considered, informed view of foreseeability may be stated without hearing any evidence whatsoever. The onus to justify dismissal falls on the defenders not the pursuers. I was referred to the known Lord Normand in Jamieson v Jamieson 1952 SLT (HL) 257 where he states:-

"The true position is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved. The onus is on the defender who moved to have the action dismissed and there is no onus on the pursuer to show if he proves his averments he is bound to succeed."

 

[21] I have already set out what in effect is the defenders case in answer in paras 14 - 17 of my decision to uphold the Sheriff's decision to refuse the Minute of Amendment. I deal there with the failure of the pursuer to deal in the Minute of Amendment with what the Sheriff described as the crux of the case namely "whether they were sufficient averments which, if proved, would entitle the court to hold that the defenders ever knew or ought to have known that the pursuer was at risk of developing some serious psychiatric illness." I accept there is insufficient in the pursuer's averments to constitute the necessary link between the pursuer suffering psychological injury and it being reasonably foreseeable to the defenders that such injury would be caused to the pursuer as a result of the defender's misconduct and breach of duty. It is not even clearly averred that they knew or ought to have known that she was the victim of bullying.

 

[22] Solicitor for the defenders emphasised that the "threshold question" described by Hale LJ in the case of Hatton v Sutherland (supra) para 23 was whether this kind of harm to this particular employee was reasonably foreseeable. The question is not whether psychiatric injury is foreseeable in a person of ordinary fortitude. The employer's duty is owed to each individual employee, not to some as yet unidentified outsider. It was submitted there were no averments which, if proved, would entitle the court to hold that the defenders knew or ought to have known that the pursuer was at risk of developing some serious psychological illness since there are no specific averments that the defenders knew or ought to have known that she was the victim of bullying.

 

[23] It is my opinion, as I have already stated, that the Sheriff was correct to refuse amendment on the grounds that he could not find sufficient averments which, if proved, would entitle the court to hold that the employers knew or ought to have known that the pursuer was at risk of developing some serious psychological illness. There are no averments to show how the defenders were aware of any particular problem of vulnerability. I have carefully considered the submissions which have been made on behalf of the pursuer. I do not accept these. In my opinion a relevant case not been made out against the defenders in respect of breach of duty and the sheriff was correct to dismiss the action.

 

(C) The pursuer's case of intentional harm.

[24] The pursuer sought to introduce a case of intentional harm of the part of "xx" by amendment. I take the view that the Sheriff was correct not to allow that case to be introduced at this late date. There had been no question before the minute of amendment was lodged in 2011 of there being any issue between the parties that the pursuer's case was that "xx" by his actings intended to cause psychological damage to the pursuer. This comes too late. These incidents are said to have occurred between 2003 and 2005. In my opinion the Sheriff was correct to refuse the amendment to allow the case of intentional harm to proceed.

 

[25] It is perhaps interesting to note that even in the amendment the pursuer does not offer to prove that "xx" intended to cause her psychiatric harm. Clear averments of such intention are required. Lord Reed in Rorrison v West Lothian Council (supra) at 250 B to C stated:-

"The concession made appears to me to be appropriate, in view of the absence of specific averments of acts of deliberate wrongdoing, and in view also of the averments and plea regarding fault, which do not give notice of a case based on intentional wrongdoing. It is my view such a serious allegation should be the subject of unequivocal averments both as a matter of fairness and because a case presented on that footing raises distinct legal issues (e.g. as to the type of damages recoverable, and as to the vicarious liability of the wrongdoers employer). Given that the present case is to be regarded as one based on negligence, it is unfortunate to find language used in which an intention to harm is implicit..."

 

(D) The appeal against the award of expenses on 17 September 2012.

[26] The Sheriff, following the issuing of his Interlocutor dismissing the cause dated 28 August 2012, heard parties on expenses. On the basis of expenses following success, he awarded expenses to the defenders and certified the cause as suitable for the opinion of junior counsel. I wholly endorse the approach of the Sheriff with regards expenses in this case and I do not propose to interfere with that interlocutor.

 

[27] In the event I refuse the appeal and adhere to the Sheriff's interlocutors of 19 January 2012, 28 August 2012 and 17 September 2012. I was not addressed on the question of expenses in respect of the appeal. I have accordingly appointed to be heard thereon on a date to be afterwards fixed when the availability of parties has been canvassed.