Frederick Marinello V. City Of Edinburgh Council
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord President,Lord Hardie |
| Judgment Date | 18 May 2011 |
| Neutral Citation | [2011] CSIH 33 |
| Court | Court of Session |
| Published date | 18 May 2011 |
| Docket Number | A994/08 |
| Date | 18 May 2011 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Hardie Lord Nimmo Smith | [2011] CSIH 33 A994/08 OPINION OF THE COURT delivered by LORD HARDIE in the cause FREDERICK MARINELLO Pursuer and Reclaimer; against THE CITY OF EDINBURGH COUNCIL Defenders and Respondents: _______ |
Defenders and Respondents: Duncan; Solicitor for City of Edinburgh Council
18 May 2011
Introduction
[1] The reclaimer is employed by the respondents as a Community Service Assistant to supervise groups of offenders who have been sentenced to community service. Although he is still in the employment of the respondents he alleges that he has been unable to attend at his place of work since 24 or 25 September 2005 because he is suffering from a depressive disorder conform to DSM-IV 296.22 with features of anxiety. The reclaimer attributes his illness and the consequent loss, injury and damage to a course of conduct on the part of two of his superiors, James Hewitt and Frank Kane, in contravention of section 8 of the Protection from Harassment Act 1997 ("the 1997 Act").
[2] In support of his allegation that Hewitt and Kane pursued a course of conduct amounting to harassment of the reclaimer, the reclaimer avers a number of specific incidents in 2004 and 2005 involving either Hewitt or Kane or both of them. In paragraph (vii) of article 4 of condescendence the following averment is made:
"Through 2005 on an almost daily basis the pursuer was subject to verbal abuse and criticism by the said Hewitt and Kane. It became a matter of routine for the pursuer to be called into the office by said Hewitt and he and said Kane would pick fault in [sic] the way in which the pursuer was supervising his group. Said behaviour amounted to bullying and harassment."
The reclaimer further avers in paragraph (ix) of the said article of condescendence that in October 2005 he lodged a grievance with the respondents about his treatment by Hewitt and Kane. The said grievance was investigated and partly upheld, although the reclaimer had not been provided with a copy of the respondents' findings, despite his requests for such information. At paragraph (x) of the said article of condescendence the reclaimer avers that an incident occurred on 18 March 2007. The averments are in the following terms:
"On or about the 18th of March 2007 the pursuer was walking along Crewe Road North, Edinburgh. As he did so he became aware of a transit white mini-bus heading towards him. The said mini-bus veered towards him. The pursuer then noticed that the said Hewitt was driving the said van. He sounded the horn. The said Hewitt gesticulated to him with a clenched fist."
[3] At a hearing on the procedure roll, counsel for the respondents challenged the relevance of the reclaimer's averments. While it was accepted that the averments relating to the conduct of Hewitt and Kane prior to September 2005 were sufficient to allow an inquiry, it was submitted that the incident on 18 March 2007 was anodyne and could not be said to be part of the course of conduct alleged to amount to harassment. If that incident were excluded from probation the action was time-barred by virtue of section 18B of the Prescription and Limitation (Scotland) Act 1973.
[4] Although the Lord Ordinary rejected the submission that the alleged incident on 18 March 2007 lacked the necessary quality to form part of a course of conduct amounting to harassment, he concluded that the difference in time, place and circumstances between that incident and the previous incidents was such that it could not form part of any course of conduct that might be established by reason of the previous incidents. Accordingly he determined that the averments relating to the 2007 incident were irrelevant and should be deleted, as a result of which the action based upon the earlier incidents was time-barred. The Lord Ordinary therefore dismissed the action. The reclaimer has reclaimed against that decision and the respondents have taken advantage of the reclaiming motion by cross-appealing on the ground that the Lord Ordinary erred in concluding that the averments in support of the 2007 incident were sufficient to amount to harassment.
The 1997 Act
[5] The 1997 Act makes provision for protecting persons from harassment. Sections 1 to 7 inclusive extend only to England and Wales and sections 8 to 11 inclusive extend only to Scotland. The relevant provisions in this case are as follows:
"8 Harassment
(1) Every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another and -
(a) is intended to amount to harassment of that person; or
(b) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.
(2) An actual or apprehended breach of subsection (1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question; and any such claim shall be known as an action of harassment.
(3) For the purposes of this section -
'conduct' includes speech;
'harassment' of a person includes causing the person alarm or distress; and
a course of conduct must involve conduct on at least two occasions.
...
(5) In an action of harassment the court may, without prejudice to any other remedies which it may grant -
(a) award damages;
(b) grant -
(i) interdict or interim interdict;
...
(6) The damages which may be awarded in an action of harassment include damages for any anxiety caused by the harassment and any financial loss resulting from it.
...
10 Limitation
(1) After section 18A of the Prescription and Limitation (Scotland) Act 1973 there is inserted the following section -
'18B - Actions of harassment
(1) This section applies to actions of harassment (within the meaning of section 8 of the Protection from Harassment Act 1997) which include a claim for damages.
(2) Subject to subsection (3) below and to section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after -
(a) the date on which the alleged harassment ceased; or
(b) the date, (if later than the date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to have become, aware, that the defender was a person responsible for the alleged harassment or the employer or principal of such person.
(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who is alleged to have suffered the harassment was under legal disability by reason of nonage or unsoundness of mind.'
(2) In subsection (1) of section 19A of that Act (power of court to override time-limits), for 'section 17 or section 18 and section 18A' there is substituted 'sections 17, 18, 18A or 18B'."
Submissions on behalf of the reclaimer
[6] Counsel for the reclaimer relied upon the various incidents in 2004 and 2005 which are alleged to have occurred prior to the reclaimer's becoming unfit for work for medical reasons. Each of these incidents formed part of a course of conduct by his superiors, Hewitt and Kane, acting in the course of their employment with the respondents. In October 2005, following his absence due to illness, the reclaimer lodged a grievance with the respondents concerning the conduct of his said superiors. Although the reclaimer had not seen the details of the decision by the respondents, he had been advised that the grievance had been partly upheld. The course of conduct prior to the reclaimer's absence from work had been undertaken by employees of the respondents who were in a position of authority over the reclaimer. The location of these incidents had been at the office where these employees worked, in public places and in private places. Some of them were isolated or opportunistic incidents. The final incident on 18 March 2007 occurred in a public place, was opportunistic and followed the success of the reclaimer's grievance procedure involving Hewitt and Kane. It resulted from a chance encounter...
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