Marie Flora Mcdonald Or Cross And Another V. Highlands And Islands Enterprise And Another
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Docket Number | 0/963 |
| Date | 05 December 2000 |
| Court | Court of Session |
| Published date | 03 April 2001 |
| OUTER HOUSE, COURT OF SESSION | |
| 0/963/5/96
| OPINION OF LORD MACFADYEN in the cause MARIE FLORA McDONALD OR CROSS AND ANOTHER Pursuers; against HIGHLANDS AND ISLANDS ENTERPRISE AND ANOTHER Defenders: ________________ |
Pursuers: O'Brien, Q.C., Poole; Balfour & Manson (for Bonnar & Co., Airdrie)
Defenders: Jones, Q.C., Gilmore; Simpson & Marwick, W.S.
5 December 2000
Introduction
[1]The late James Cross died at his own hand on 15 August 1993. At the time of his death he was employed by Highlands and Islands Enterprise ("HIE") and seconded to Western Isles Local Enterprise Company ("WIE"). In this action members of his family sue those two bodies, called as first and second defenders respectively, for damages on averments that his suicide was caused by stress to which he was subjected at work, and that in subjecting him to such stress the first defenders were negligent at common law and both defenders were in breach of statutory duty. His widow, Mrs Marie Flora Cross ("Mrs Cross"), sues first as an individual, and secondly and thirdly as guardian of her two daughters, Rona and Joanne, the children of the marriage. The fourth pursuer is James Cross's father. The parties were, in the end, agreed as to the sums of damages which should be awarded in the event of liability being established. Liability was, however, disputed and there remain a number of complicated and difficult issues of fact and law which require to be resolved.
[2]James Cross was born on 9 May 1954, and was thus thirty nine years of age when he died. He was the eldest of three sons of the fourth pursuer, Francis Cross, who was sixty five years of age at the date of the proof. He was brought up in Glasgow. His mother died on 10 February 1993, and I shall have occasion to refer further to that in due course. On 25 September 1981, he married Mrs Cross, who is from South Uist and is a nurse and midwife by profession. There are, as I have mentioned, two children of the marriage, Rona, who was born on 28 November 1983, and Joanne, who was born on 10 August 1985. In August 1993 James Cross was living in family with Mrs Cross and the two children on a croft in South Uist. On 15 August 1993 he committed suicide by placing the muzzle of his shotgun in his mouth and discharging it.
James Cross's Employment History
[3]James Cross left school with five O Levels, and immediately entered the Civil Service. He worked in the Department of Employment. Initially, as a clerical officer from 1971 to 1975 and an executive officer from 1975 to 1978, his duties related to the administration of the unemployment benefit scheme. In March 1978 he transferred to the Manpower Services Commission, Training Division, and worked in the Highlands and Islands Area Office in Inverness. The focus of his work became the various government schemes for employment training. At that stage his work took him on occasions to the Western Isles. It was during this phase of his career that he met and married Mrs Cross. In 1984 he became a specialist officer, handling higher level training courses and those for people with disabilities, as well as marketing and the development of effective systems for budgetary control, planning and performance measurement. In March 1986 he was promoted to the rank of higher executive officer, and appointed to the Central and Fife Area Office of the Training Agency in Edinburgh. The family moved to Edinburgh, and lived there until 1990. During his first fifteen months in Edinburgh, he was Area Marketing Manager, with responsibility for promotion of training activities. He also managed and controlled executive officers involved in planning and budgetary control, and providing secretariat services to the Area Manpower Board. In July 1987 he became Youth Training Scheme Local Programme Manager, responsible for the management of staff involved in the planning and control of YTS provision in the area. He was also responsible for the negotiation of contracts with training providers, and marketing and promotion of schemes. In July 1989 he became Employment Training Manager. In 1989-90 he studied for and obtained the Certificate in Marketing of the Chartered Institute of Marketing.
[4]Under the Enterprise and New Towns (Scotland) Act 1990 HIE was set up, and there were transferred to it with effect from 1 April 1991 the functions previously performed by the Highlands and Islands Development Board ("HIDB"), as well as the functions (within its area) of the Training Agency relating to the provision and administration of government-funded employment training schemes. There were also set up ten local enterprise companies ("LECs"), of which WIE was one, to which some of the functions of HIE were delegated. For the purpose of the development phase of those new arrangements, James Cross was seconded, at his own request, from the Training Agency to WIE with effect from 18 June 1990. During that period, the Working Group whose members were to become in due course the Board of WIE were involved in developing a business plan for WIE. Donald MacAulay, who had been on the staff of HIDB in Stornoway and was to become the Chief Executive of WIE, was at that stage the Project Manager, and James Cross was appointed to work with him (based during this period in Stornoway). Independent consultants were also involved in the development of the business plan. What bears to be a summary version of that business plan is produced as No. 30/114 of process. At the end of the development phase Mr MacAulay reported to the Training Agency on James Cross's participation in the project in favourable terms (No. 24/1/42 of process), which he confirmed in evidence accurately stated his views.
[5]Towards the end of the development phase James Cross applied for employment with HIE, and was offered a position with effect from 1 April 1991. On taking up that appointment he ceased to be a civil servant. The particular position which he sought and to which he was appointed, by way of secondment from HIE, was as Senior Training Manager of WIE. The job description for that post (No. 24/1/4 of process) contained the following passages:
"Location Of Job: Either Stornoway or Balivanich.
General Purpose Of Job: The Job Holder will play a central role in ensuring the success of the Company. He/She will form part of a Management Team with responsibility for contracting, delivery, monitoring and assessment of training programmes for the Company and its contractors. Reporting to the Chief Executive, the Job Holder will promote the training function within the Company, ensuring that an integrated approach is projected by staff in the field and ensuring adequate links with colleagues at all levels.
The Job Holder will ensure that policies are continually evaluated to ensure compatibility of effort between WIE policies and available training programmes, recommending, where necessary, policy changes.
Context: ...
The Job Holder will assume responsibility for training programmes throughout the Western Isles. The Job Holder will manage the process of negotiation with contractors, delivery and assessment in accordance with contracts agreed. The Job Holder will attract a high profile and be able to deal confidently with businesses of all sizes, and other local organisations, both public and voluntary sector.
Ability to speak Gaelic would be an advantage.
Main Duties: Negotiation with subcontractors to ensure efficient delivery of WIE training programmes.
Monitor performance of subcontractors and assess effectiveness of delivery methods.
Ensure WIE policies are implemented to optimise effect on the local economy and recommend policy changes, as appropriate.
[Reference is then made to staff liaison and monitoring staff performance.]
Ensure that investment in training by WIE adequately reflects the requirements of the economy of the area, and that adequate flexibilities are sought totally in implementation of national schemes.
Ensure an optimum provision of training locally to meet local needs, and, where necessary, seek reciprocal arrangements with other LEC areas.
General Conditions of Employment: ... Office hours are currently 0900 - 1730 (1700 on Friday) on a five day week. Additional hours may be required ... Considerable travelling by public and private transport will be required."
James Cross had by then learned to speak Gaelic. The eventual location of the job at Balivanich on Benbecula (the main office of WIE being in Stornoway) was in accordance with his preference.
[6]Another view of the demands of the job of Senior Training Manager is to be found in the Job Analysis Form (No. 9/4 of process). That document was completed and signed by James Cross, and counter-signed by Donald MacAulay. It is not dated, but the evidence of Donald MacAulay was that it was completed in the course of 1991. Its purpose, he said, was to ensure that each post was appropriately valued and graded. It would go, once completed, to HIE for evaluation. It contains the following passages:
"Overall Purpose of the Job:
Interpretation of Government guidelines on training policy and provision of reports to the WIE Board on how the policies impact locally.
Development of WIE training policies and initiatives and implementation in line with Board recommendations.
Managing WIE's total training resources and budgets (in excess of £1 million) effectively.
Planning, budgeting and monitoring of expenditure to the Chief Executive and the Board.
Recommendation to the Chief Executive and Board, company involvement with innovative training solutions.
Management of staff to ensure effective financial, health and safety and quality controls of training delivery.
Representing the Company at senior level in training policy issues.
Main Duties:
- To advise, consult and where necessary direct the WIE Board with regard to the interpretation and implementation of EEC and National Government policies and budgets as they affect training...
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