Mrs K Against Chief Constable Of The Police Service Of Scotland
| Jurisdiction | Scotland |
| Judge | Lord Glennie,Lord Brodie,Lord President |
| Neutral Citation | [2020] CSIH 18 |
| Docket Number | A63/15 |
| Date | 28 April 2020 |
| Court | Court of Session |
| Published date | 28 April 2020 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 18
A63/15
Lord President
Lord Brodie
Lord Glennie
OPINION OF LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motion
in the cause
MRS K
Pursuer and Respondent
against
CHIEF CONSTABLE OF THE POLICE SERVICE OF SCOTLAND
Defender and Reclaimer
______________
Pursuer: McBrearty QC, E Campbell; BTO Solicitors LLP
Defender: Shand QC, Smart QC; Clyde & Co (Scotland) LLP
28 April 2020
Introduction
[1] This is a reclaiming motion (appeal) against the interlocutor of the Lord Ordinary
([2019] CSOH 9), dated 31 January 2019, in which he found that the pursuer was entitled to
reparation from the defender. The nature of the liability, in terms of the pursuer’s second
plea-in-law which the Lord Ordinary sustained, is both personal, in respect of the acts of the
defender’s predecessor in office, and vicarious, in respect of that predecessor’s employees.
Although police officers are not employees of the chief constable, it was agreed that, for the
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purpose of vicarious liability, they fell to be regarded as employees. In the course of the
hearing on the reclaiming motion, it was made clear by the pursuer that it was only
vicarious liability which was being founded upon. That was in relation to one particular
police officer, namely Chief Superintendent Stephen Whitelock.
[2] The Lord Ordinary determined, first, that the acts and omissions which the pursuer
founded upon to establish liability were all those of officers in the former Strathclyde or
Grampian Police Forces, for whom their then Chief Constable was responsible (Police
(Scotland) Act 1967, s 39; now Police and Fire Reform (Scotland) Act s 24). These liabilities,
according to the Lord Ordinary, had been transferred to the defender by what he described
as section 20 of, but must have meant paragraph 20 of schedule 5 to, the Police and Fire
Reform (Scotland) Act 2012.
[3] The Lord Ordinary determined, secondly, that there was a duty on the defender, or
his statutory predecessor, to “afford the pursuer fair treatment in carrying out an
investigation into her conduct and performance”. If psychiatric harm was reasonably
foreseeable as a result of a breach of that duty, the defender would be liable in damages for
that harm. The Lord Ordinary found that, in the circumstances of the pursuer, such harm
was reasonably foreseeable. The defender was accordingly liable. The principal issues are
whether the Lord Ordinary’s interpretation of the law of quasi-delictual liability is correct
and whether, on the facts found, the Lord Ordinary was entitled to the conclusion which he
reached.
Procedure
The original case on record
[4] The action was raised in late 2014. By interlocutor dated 28 January 2015, the cause
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was appointed to proceed as an ordinary action, rather than under the simplified procedure
for personal injuries actions. The conventional rules relative to written pleadings therefore
apply. The pursuer’s case stands or falls on proof of the specific averments of fault
(McGuffie v Forth Valley Health Board 1991 SLT 231 LJC (Ross) at 234 citing Morrisons
Associated Cos v James Rome & Sons 1964 SC 160). After a prolonged period of adjustment,
the record was closed and, on 4 December 2015, a proof before answer was allowed. The
pursuer’s claim (STAT 6) was, and is, said to be “based on the fault of the employees of the
defender’s predecessors”. This averment of vicarious liability is followed by one which
refers to the defender’s predecessors having a duty to take reasonable care to avoid exposing
their employees unnecessarily to the risk of injury. It was their duty to devise, maintain and
enforce a safe system of work. The particular failure was not referring the pursuer for
treatment and advice upon observing her ongoing distress and anxiety in relation to what
was occurring at work. “They” knew or ought to have known that, if they failed to do this,
it was reasonably foreseeable that the pursuer would sustain psychiatric harm.
[5] The pursuer’s problems, according to her then averments, stemmed from her
relationship with Detective Sergeant G (DS G), with whom she worked in the Special
Operations Unit (SOU) of the Scottish Crime and Drugs Enforcement Agency. The pursuer
had found it increasingly problematic to work with this officer, who had become “difficult,
hostile and aggressive”. Her concerns were reported to her line manager, namely DI Daniel
Rae, without success. DI Rae’s attitude, from about February 2011, had become:
“increasingly hostile and aggressive. He began to regularly bully and humiliate the
pursuer including shouting and swearing at her and accusing her of incompetence
and threatening to have her sent back to Aberdeen to work ... The pursuer continued
to be harassed, humiliated and abused by DI Rae on a very regular basis over the
next couple of months. She was also verbally abused by Superintendent Ian
Thomas.”
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