DONALD FRASER Pursuer against STATE HOSPITALS BOARD for SCOTLAND Defenders
| Jurisdiction | Scotland |
| Judgment Date | 11 July 2000 |
| Date | 11 July 2000 |
| Court | Court of Session (Outer House) |
COURT OF SESSION Outer House
Before Lord Carloway
Scots law - employer's duty of care - avoidance of employees' exposure to risk of psychiatric damage - unpleasant emotions not an injury
The duty of care owed by an employer to take reasonable care to avoid exposing his employees to unnecessary risk of injury extended to psychiatric damage and was not limited to physical injury. But there was no duty to protect the employee from unpleasant emotions which did not involve any form of injury at all.
Lord Carloway, sitting in the Outer House of the Court of Session, so held, absolving the State Hospitals Board for Scotland of a claim for damages brought by Mr Donald Fraser for psychiatric illness suffered by him alleged to have been caused by the defenders' actings during the course of his employment with them.
Mr James Campbell, QC and Mr Roderick MacLeod for the pursuer; Mr Roderick Macdonald, QC and Mr Jonathan Brodie for the defenders.
LORD CARLOWAY said that in Robertson v Forth Road Bridge Joint BoardTLRSC(No 1) (The Times April 13, 1995; 1995 SC 364) it had been accepted by the defence that the relationship of employer and employee created a relationship of sufficient proximity for there to be a duty not to cause the employee to sustain direct physical or psychiatric injury.
That concession, if it could even be classed as such, could be found either expressly or implicitly in several other cases involving that relationship, including Gillespie v Commonwealth of Australia ((1991) 104 ACTR 1), Petch v Commissioners of Customs and ExciseTLRICR (The Times March 4, 1993; (1993) ICR 789) and Walker v Northumberland County CouncilTLRICR (The Times November 24, 1994; (1995) ICR 702).
There was no reason why the general principle relative to the avoidance of the risk of injury should become restricted to physical injury.
The argument against recovery for psychiatric injury had stemmed from cases involving secondary victims and had developed by extracting isolated dicta from them.
Those cases dealt with quite a different subject, namely the extent to which the law permitted recovery for psychiatric injury to persons as a result of seeing, hearing or learning about the death of or injury to others.
Bourhill v YoungELRSC ((1943) AC 92; 1942 SC (HL) 78) and McLoughlin v O'BrianELR ((1983) 1 AC 410) had no direct bearing on the present case.Jaensch v CoffeyUNK ((1984)...
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