Miss Penny Ann Mather V. British Telecommunications Plc
| Jurisdiction | Scotland |
| Judge | Lord Osborne |
| Date | 30 May 2000 |
| Court | Court of Session |
| Published date | 30 May 2000 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD OSBORNE in the cause MISS PENNY ANN MATHER Pursuer; Against BRITISH TELECOMUNICATIONS PLC. Defenders: ________________ |
Pursuer; Cullen, QC, Balfour & Manson
Defenders; Stephenson, Henderson Boyd Jackson
30 May 2000
[1]In this action, the pursuer seeks damages in respect of injury to her mental health which she alleges that she has sustained as a consequence of the fault of the defenders et separatim the fault of one Stan Martin, an employee of the defenders at all material times, for whose negligent acts and omissions in the course of his employment with them the defenders are said to be responsible. It is a matter of agreement between the parties that the pursuer was employed by the defenders as a clerical assistant from 1987 until 23 September 1994, the date on which her resignation, dated 1 September 1994, took effect. It is also a matter of agreement that, although the pursuer was employed by the defenders until 23 September 1994, in fact she left her work on 4 April 1994 in consequence of her condition and did not work again with the defenders before her resignation took effect.
[2]The particular injury which the pursuer alleges she has sustained is injury to her mental health caused by work-related stress. In Condescendences 4 to 11 of the Closed Record, as amended, dated June 1999, the pursuer specifies details of her experiences in the course of her employment with the defenders, which she contends were stressful and which constitute the basis of her claim. In Condescendences 12 and 13, she sets forth the case of fault which she makes against the defenders. In Condescendence 14 she sets forth the case of fault which she makes against Mr Martin. In Condescendence 15, she sets forth the various ways in which she alleges that she has sustained injury to her mental health.
[3]It is a matter of agreement that the present action was served upon the defenders on 25 August 1997. That fact, in the context of the averments made in the action, is the basis for a claim on the part of the defenders that the present action, is time-barred. That claim is set out in the defenders' Answer 16 and is resisted by the pursuer in her Condescendence 16. The defenders have tabled two preliminary pleas. The first of these relates to the issue of time-bar and seeks the dismissal of the action. The second is a general plea to the relevancy and specification of pursuer's averments and also seeks dismissal of the action.
[4]When this case came before me in the procedure roll, counsel for the defenders, having outlined the nature of the action and having referred to the defenders' preliminary pleas, summarised the submissions which he intended to make. His submissions were to fall into three categories. In the first place, it was to be argued that the action was time-barred and should therefore be dismissed; in the second place, it was to be argued that the pursuer's averments of duty in Condesendences 13 and 14 were irrelevant and lacking in specification and furthermore had no basis in the averments of fact; in the third place it was to be argued that, in any event, individual averments should be withheld from probation as being irrelevant and lacking in specification.
[5] Turning to the matter of time-bar, counsel for the defenders argued that plea-in-law 1 for the defenders should be sustained and the action dismissed without inquiry. It was plain that the action was one of damages for personal injury, based upon an allegation of fault on the part of the defenders as the employers of the pursuer and the fault of Mr Martin, for whose act or omissions the defenders were responsible. Attention was then drawn to the provisions of section 17(1) and (2)(a) of the Prescription and Limitation (Scotland) Act 1973, the only statutory provisions founded upon by the pursuer. It was pointed out that the summons in the present action had been signetted on 22 August 1997 and service on the defenders effected on 25 August 1997. Against that background, it could be seen from the terms of Condescendence 15 that the pursuer averred that she had been unfit to work from 4 April 1994 onwards. Thus the injuries upon which she was founding had been sustained by that date. The significance of the date was two-fold. Firstly, it was the last day of the pursuer's attendance at work and secondly it coincided with the pursuer becoming redundant by virtue of the transfer of the handling of statutory notices for the whole of Scotland to the defenders' organisation in Glasgow, which was admitted to have occurred in April 1994, as appeared from Condescendence and Answer 7. Accordingly it was submitted that the date referred to in section 17(2)(a) of the Act of 1973 could not be later than that date. If the pursuer was to demonstrate that the action was not time-barred, she had to rely upon acts or omissions which had continued to 25 August 1994, three years before the raising of the action, which had a causal relationship with her injuries. In that connection reference was made to Wilson v Morrinton Quarries Ltd. 1979 S.L.T. 82, at pages 85 and 86. That case showed that personal injuries were sustained when there was an appreciable injury which could found an action of damages. Looking at the circumstances of the present case, by 4 April 1994, the pursuer had developed two psychiatric conditions which were said to be sufficiently serious to have caused her to absent herself from her work and to seek treatment from her general practitioner. There was no causative continuing wrong after that date. However, having regard to the averments in Condescendence 16, it appeared to be the pursuer's position that a relevant wrong continued until 23 September 1994, the date when the pursuer's resignation took effect. It was there averred that: "The acts or omissions to which the pursuer's injuries are attributable were continuing and liable to continue, during the course of the pursuer's employment." The words "liable to continue" in the context were obscure. The acts and omissions mentioned were not specified, but it had to be supposed that they were those founded upon earlier in the action. The matter had to be looked at in three stages. Firstly, one had to ask the question to what acts or omissions did the pursuer say her injuries were attributable before 4 April 1994. Secondly, the question arose to what acts or omissions did the pursuer say injury was attributable between 4 April 1994 and 25 August 1994. Thirdly, one had to consider whether these two sets of acts or omissions were continuing so as to "bridge" the two periods. Furthermore, it was necessary to apply this three stage test to both the cases pled, that is to say the case against Mr Martin and the case against the defenders.
[6]Turning to examine the case against Mr Martin, that was to be found in Condescendence 14. It was obvious from the averment made there that the criticisms of his conduct were related to the period leading up to 4 April 1994, when the pursuer was actually at work. There was no averment relating to a period after that date. It was acknowledged that at page 18C of the Closed Record there was an averment regarding the absence of any contact between Mr Martin and the pursuer after 4 April 1994, but that averment was not related to any averment of duty. Accordingly, in relation to the case against Mr Martin, there was no basis for going beyond the first stage of consideration.
[7] Turning next to the case against the defenders themselves, it was to be found in Condescendence 13. Between the commencement of the Condescendence and page 22C of the Closed Record the averments related to a period of time before 4 April 1994. From page 22C to page 23A, the averments were focused upon the period between 4 April 1994 and 25 August 1994. However, it was plain that the averments of duty relating to the period after 4 April 1994 related to a different job, because, in April 1994 the job previously done by the pursuer had been transferred to Glasgow, as appeared from page 12D to E of the Closed Record. The factual basis in averment to which this part of pursuer's case appeared to be related was to be found in Condescendence 11 at page 18C of the Closed Record. This passage related to further damage said to have been sustained by the pursuer. It was apparent from the pursuer's pleadings that there could not properly be said to have been any continuing act or omission before and after 4 April 1994. The essence of the criticisms made of the defenders in the period after 4 April 1994 was that they had treated the pursuer badly in discussing and handling her possible redeployment. Thus, there was a distinct break at 4 April 1994 when one moved from alleged work-place stress to different problems thereafter. In all these circumstances, there was no continuing act or omission extending into the triennium. Accordingly the action was time-barred.
[8] Counsel for the defenders next proceeded to elaborate his submissions in support of his general relevancy plea. The submission made was to the effect that the pursuer's averments of duty in Condescendences 13 and 14 were irrelevant, fatally lacking in specification and had no basis in the averments of fact. The general principles applicable to this kind of claim were set forth in White v The Chief Constable of South Yorkshire Police [1999] 1 All E.R. (H.L.)1, a case which arose out of the Hillsborourgh disaster. Reference was made to the speech of Lord Goff of Chievley at page 21. In order for there to be an award of damages, it was necessary for a claimant to show that he had suffered from a recognised psychiatric illness, not merely an emotional reaction to the events or conduct in question. In this connection, reference was made to the speech of Lord Stein at pages 30 to 31. Furthermore, some injury must have been reasonably foreseeable as a consequence of the act or omission...
To continue reading
Request your trial