Christine Robertson (ap) V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Neutral Citation | [2007] CSOH 186 |
| Court | Court of Session |
| Docket Number | A695/04 |
| Published date | 22 November 2007 |
| Date | 22 November 2007 |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 186 | |
| A695/04 | OPINION OF LORD EMSLIE in the cause CHRISTINE ROBERTSON (AP) Pursuer; against THE SCOTTISH MINISTERS Defenders: ________________ |
Pursuer: Logan; Campbell Smith WS
Defenders: Sheldon; Brodies
22 November 2007
Introduction
[1] The pursuer is a prison guard employed by the Scottish Prison Service. In this action she claims damages from the defenders, as representing her employers, in respect of alleged bullying and harassment at work between early 2000 and late 2001. Her claim encompasses solatium for anxiety and distress, leading on to more serious psychiatric illness, together with a continuing loss of earnings in the period after she was medically signed off work with effect from 31 October 2001. The summons was served on 9 September 2004, and since then the defenders have maintained a full defence on both merits and quantum.
[2] The pursuer's claim against the defenders is advanced on three separate grounds. First, she makes a direct complaint against her employers at common law, alleging that in various ways they failed to take reasonable care for her welfare. Secondly, she seeks to have them held vicariously liable for the intentionally harmful conduct of the fellow-employees who allegedly bullied and harassed her. Thirdly, she proceeds by way of an action of harassment under section 8 of the Protection from Harassment Act 1997, founding on essentially the same conduct as is alleged to underpin her claims at common law. For their part, the defenders invite the court to dismiss the whole action as fundamentally irrelevant and lacking in specification, and also as time‑barred by virtue of sections 17 and 18B of the Prescription and Limitation (Scotland) Act 1973. I have now heard a wide-ranging debate on these preliminary issues, and for convenience propose to consider the various areas of dispute in turn.
The pursuer's direct claim against her employers at common law
[3] In submitting that the pursuer's direct case against her employers at common law was fundamentally irrelevant, counsel for the defenders stressed that in any claim of damages for non-physical injury a pursuer must aver and prove (i) the development of some specific and identifiable psychiatric illness or condition; (ii) in circumstances where reasonable employers ought to have foreseen or appreciated the risk of such a condition developing; and (iii) caused by acts or omissions which reasonable employers, in the exercise of a duty of reasonable care for their employees' health and welfare, could and should have taken steps to prevent. In particular, averment and proof of the foreseeability of significant psychiatric injury was an indispensable requirement, since mere anxiety or upset, whether foreseeable or not, was at common law insufficient to give rise to any duty of care or, consequently, to any cause of action. On these matters, reference was made to cases such as Rorrison v West Lothian Council 2000 SCLR 245; Hatton v Sutherland 2002 ICR 613; Barber v Somerset County Council 2004 1 WLR 1089; and Banks v Ablex Limited 2005 ICR 819.
[4] While it was acknowledged that in condescendence 5 the pursuer offered to prove the development of recognised psychiatric conditions, there was on Record a total absence of any averments as to what her employers "knew or ought to have known" at any stage. In addition, the pursuer's averred complaints and reports to her employers (at pages 6 and 7 of the Record), were extremely limited in nature. They did not apparently touch upon the alleged bullying and sexual innuendo averred at page 5C, nor upon any "campaign of victimisation, intimidation and harassment" as mentioned at page 8B. As pled, these complaints and reports concerned little more than robust expressions of view in the context of union-related disagreements at intervals of several months. There was no suggestion that the pursuer's employers, at any stage, had any reason to suspect that she might be, not merely angry, annoyed, frustrated or upset, but susceptible to serious problems with her mental health. It was not suggested that the pursuer was in any way unfit, by May 2001, to carry out her duties when seconded to Holland in connection with the Lockerbie trial, and the very limited averments as to what happened in the period after her return did not materially alter the situation.
[5] In short, it was said, the pursuer had failed to aver any proper basis on which relevant duties of care might have been incumbent upon her employers. It was therefore not surprising to find that, in condescendence 6, the pursuer had altogether failed to set out any intelligible duty of care, or even to allege that, but for breaches of duty by the Scottish Prison Service, her psychiatric illness would not have occurred. The alleged duty at 6A to "ensure" that the pursuer was not subjected to injurious bullying or sexual harassment at work amounted to an obligation of insurance and could not be sustained. In any event, no duty of care could arise if the employers were not averred to be aware of such problems. Furthermore, the alleged duties regarding investigation at 6B-C were irrelevant because public policy considerations denied any right of action relative to criminal investigations undertaken by the police or, by analogy, the prison service:- Waters v Commissioner of Police of the Metropolis 2000 1 WLR 1607. In any event, the alleged duties of notification and assurance were irrelevant for want of essential specification, as was the alleged duty to progress investigations "within a reasonable time":- cf Riddell v Reid 1941 SC 277; McGuffie v Forth Valley Health Board 1991 SLT 231. The inadequacy of those averments of duty was further highlighted by consideration of the inadequate averments of alleged harassment in condescendence 4. One remark in the heat of the moment was alleged against the pursuer's fellow-employee Elms; Anderson was blamed for expressing sympathy for his suspended colleague Jack, and for making insinuations against the Governor of the prison; and as regards the more important averments against Jack, there was no specification of when or by whom he was allegedly overheard to say certain things, or even whether these things were said in a work context. The inadequate averments of duty also had to be read alongside the pursuer's own averments as to the extensive steps which her employers actually took to investigate and resolve such grievances as she drew to their attention. The fact that such grievances were not, in the end, upheld did not show that the employers' response was inadequate, and in the end the pursuer's averments demonstrated decisive action (consistent with her own wishes) in relocating her to positions remote from the fellow-employees about whose conduct she complained.
[6] In response, counsel for the pursuer submitted that the court should not judge his client's averments too strictly. The pursuer's complaints and reports to her superiors were set out in condescendence 4, and these should be held relevant at this stage to justify inquiry on the pursuer's direct case against her employers at common law. Counsel did, however, concede that the averred duties in condescendence 6 were "not well expressed", although these had to be read along with the averments at 8A regarding failures in duty by the Scottish Prison Service. On any view, as confirmed by the decision in Waters, there was no public policy reason why the alleged duty to make proper investigations in an employment context should be ruled out as irrelevant.
[7] In my opinion, no relevant common law case is pled against the pursuer's employers here. Without going into unnecessary detail, I am unable to identify any sufficient averments which, if proved, would entitle the court to hold that the Scottish Prison Service 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 and/or sexual innuendo, and in my view the pursuit of an investigation - even on a "case to answer" basis - proves nothing as to the state of the defenders' knowledge regarding the pursuer's state of health. Even if relevant averments of knowledge or foreseeability had been made in these areas, I would still have held the alleged duties in condescendence 6 to be irrelevant and seriously lacking in specification. There is no indication as to how often the pursuer expected to be informed of progress with the investigation of her complaints, nor as to when or why she should have been assured of her employers' good faith, nor as to the "reasonable" timescale within which her complaints were to be investigated and resolved. In order to establish liability in a case like this, it is well settled that a claimant must do more than show a causal link between psychiatric illness and stress at work: what is required is a causal link between that condition and the employers' alleged breaches of duty. In the present case, I can see no basis on which the existence of any such causal link could properly be inferred.
[8] For these reasons, I conclude that the direct case which the pursuer pleads against her employers at common law must be dismissed, and to that end I shall exclude from probation (a) the averments in condescendence 6 from "the Scottish Prison Service" at 15A to "another prison" at 15D and (b) in the pursuer's first plea-in-law the words "having breached their duties of care to the pursuer and". For completeness, I should add that I am not impressed with the supposed public policy considerations which, according to counsel for the defenders, would serve as a complete bar against any claim regarding inadequate investigation of work-related complaints. It may be that important public policy considerations arise in relation to the investigation of alleged crime...
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