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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell V. The University of Edinburgh [2004] ScotCS 114 (04 May 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/114.html Cite as: [2004] ScotCS 114 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause DR ALAN CAMPBELL Pursuer; against THE UNIVERSITY OF EDINBURGH Defenders:
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Pursuer: Party Litigant
Defenders: Miss Shand; Solicitors: HBM Sayers
14 May 2004
Introduction
[1] The pursuer was formerly a lecturer in the Department of Social Anthropology ("the DSA") in the University of Edinburgh. He has brought this action against his former employers claiming damages for psychiatric injury which, he avers, he sustained in the course of his employment with them. He was initially represented by a firm of solicitors but they withdrew from acting in June 2002, since which time he has conducted the action as a party litigant. The pleadings for both parties are lengthy and extensive and cover events which are alleged to have occurred over the period from 1980 to 1997. The case called on procedure roll on the defenders' two preliminary pleas. The pursuer appeared in person and Miss Shand appeared on behalf of the defenders. The defenders' first plea is that the action is time barred and their second plea is a general plea to the relevancy of the action.
The Pleadings
[2] In order that the submissions can be placed in context it is necessary that I should set out the material averments made by the pursuer. It must be emphasised that the following review of these averments is not to be taken as being in any way exhaustive and cannot be regarded as a substitute for a reading of the entire averments in the Closed Record.[3] In Condescendence 2 the pursuer avers that he is a distinguished social anthropologist with a worldwide reputation and his qualifications and academic career are set out. In Condescendence 3 it is averred that he began work in the DSA of the University of Edinburgh in 1978 and that at the time of his appointment he had no pre-morbid personality. Condescendence 4 deals with the period between 1980 and 1985 and contains averments of personal abuse of the pursuer by Dr Anthony Good, a lecturer in the DSA. Condescendence 5 contains an averment that in October 1985 the pursuer was harassed by Dr Good, who threatened to attend his lectures, and generally and significantly undermined his performance, and that the pursuer complained to Dr Hanley, the Head of Department, who took no action. It is further averred that the patronising and selective behaviour of Dr Good in particular and lack of support from the Head of the DSA resulted in the pursuer being marginalized within the DSA, being excluded from staff decision making and being effectively disabled from undertaking administrative duties within the Department. Condescendence 6 contains averments that in October 1985 Dr Good spat at the pursuer and began shouting, pursuing him to his room and berating him in an intemperate fashion and that this behaviour continued sporadically until 1988, and was frequently brought to the attention of the Head of the DSA, who took no effective steps to require Dr Good to moderate his conduct. There is reference to an incident in January 1988 when the pursuer and Dr Good had an argument over tutorial lessons, resulting in the pursuer approaching the Dean of Social Sciences, who intervened. It is averred that Dr Good's harassment of the pursuer lessened after the Dean's intervention, that Dr Good's behaviour towards the pursuer was accordingly well known in the DSA by 1988 and was expected to continue, that, in particular, it was known to Dr Hanley, and to Professor Cohen, who became Head of the DSA in 1989, and that it was foreseeable that the behaviour would continue when Dr Good became Head of Department in 1996.
[4] In Condescendence 7 there are averments about an intervention by Professor Cohen on behalf of a student at an Examiners' Meeting on 26 July 1991. In Condescendence 8 it is averred that when the post of Director of Studies became vacant in 1990 Professor Cohen appointed a newly arrived member of staff from Aberdeen in preference to the pursuer, who was amply qualified for appointment to the post. There is also an averment that, within three months of his appointment to a post which involved administering the ERASMUS exchange scheme, the pursuer was removed from the post without a reason being given. In 1991 the pursuer was unsuccessful in his application for appointment to promotion as a senior lecturer in the DSA. On the advice of his union he sought a meeting with the Dean and the Head of Department but his request was refused. The pursuer avers that he was fully conscious and aware of a continuing atmosphere of patronage and cronyism within the DSA and was becoming deeply personally troubled by the increasing manifestation of the culture of favouritism in the DSA, which reached down into areas such as the teaching of students, the examination of students, the award of degrees and the various internal proceedings regulating such matters. It is also averred: "The pursuer's psychological health had begun to suffer." In Condescendence 9 it is averred that on 27 September 1991 the pursuer approached Professor Cohen and explained why he thought the refusal of the meeting was unfair and that he did not want to continue as Examinations Convenor. He avers that he was told by Professor Cohen that if he persisted he would be putting his job in jeopardy and that he was shocked and distressed that he was being threatened with dismissal and told Professor Cohen that he was distressed and concerned about his health, but Professor Cohen took no action.
[5] In Condescendence 10 it is averred that in 1994 Professor Neil MacCormick became Dean of Law and Social Sciences and wrote to the pursuer inviting him to a meeting, where the matter of staff appraisal by Professor Cohen was discussed. The pursuer's request to be appraised by one of two other professors was refused and the pursuer required to be appraised by a nominee of Professor Cohen within the DSA. It is further averred that at the meeting there was also discussed the failure of two self-nominated applications for promotion made by the pursuer in 1994 and 1995 while he was undertaking field work in Brazil. In Condescendence 11 it is averred that Professor Cohen had been allowed to intervene in both applications and that in September 1996, following his return from Brazil, the pursuer was advised by the University Personnel Office that no appeal was open to him since there had been no defects in procedure.
[6] In Condescendence 12 it is averred that while in Brazil the pursuer dealt with correspondence from the DSA, had to devote his time to trying to mount his appeal and that his failure to receive a clear acknowledgement that it could go forward was a constant source of anxiety for him. The four month writing up time following fieldwork which he had on his return was ruined by having to deal with re-entering the Department and trying unsuccessfully to get those responsible to deal with the appeal. There are then the following averments: "Stress, depression and a feeling of hopelessness accumulated. In August 1996 the pursuer suffered a serious psychiatric collapse and came to be under medical supervision and treatment." On rejoining the Department the pursuer found that he had been removed from all administrative duties and had been given in lieu extra teaching hours for the session 1996/1997.
[7] In Condescendence 13 it is averred that Dr Good became Head of the DSA in mid-1996. The pursuer had to teach 80 Third Year Honours students in a two hour lecture. Dr Good refused to allow the teaching method to be discussed at a staff meeting and threatened the pursuer with disciplinary proceedings if the pursuer did not teach for two hours at a time. The pursuer left the meeting deeply distressed. Dr Good made more disciplinary threats to the pursuer towards the end of term in December 1996, despite the fact that the Dean, Professor MacCormick, had arranged for a round-table discussion in late December. That meeting was preparatory only and it was agreed that further meetings would take place in January. In January 1997 Dr Good insisted that the pursuer take on a number of administrative duties, including the post of Director of Studies, in spite of the fact that he had been given extra teaching for the year in lieu of administrative duties. The pursuer appealed to the Dean, who ignored the issue and did not convene any more round-table meetings as promised. Dr Good's threats became more frequent. It is then averred: "The pursuer found himself quite unable to carry on working, consulted his doctor, Dr Tim Brown at Edinburgh University Health Service, Bristo Square, Edinburgh. It was foreseeable in December that if the threats went on the pressure on the pursuer would become intolerable. It should have been obvious that the disciplinary threats by Dr Good were malicious and they should have been stopped by the Dean or other person in authority. The pursuer felt that having achieved the promise of a round-table discussion he could have recovered with medical help and continued in employment. The renewal of these threats in January 1997 and the cessation of the round-table process made his position impossible." In Condescendence 14 it is averred that Dr Good's use of disciplinary proceedings was malicious, unreasonable and unprofessional and that between 1991 and 1997 the pursuer had approached various of the defenders' employees to indicate his distress at the incidents described and the effects thereof upon his psychological health. He had approached Professor Michael Anderson in 1986, specifically mentioning his physical health, Professor Malcolm Anderson in 1991 and Professor MacCormick in 1994. All three were Deans in the Faculty of Social Sciences and Law and none took his complaints seriously. In Condescendence 15 it is averred that the University Personnel Department actively encouraged Dr Good to proceed with disciplinary proceedings against the pursuer and the terms of a memo from the Department are quoted. It is then averred:
"The pursuer had at various times appeared distressed about the incidents referred to before numerous colleagues both within the Department of Social Anthropology and in other departments in Edinburgh University, including Professor Judith Okely (Social Anthropology), Dr Alex Robertson (Social Policy), Professor John Anderson (English Language), Dr Fran Colman (English Language), Mr Christopher Fyfe (Reader, African Studies), and many others. The pursuer had tried over many years to have an effective meeting convened to resolve the problems concerning his place in the DSA, his relations with senior staff, and had unsuccessfully tried an appeals procedure. All requests and initiatives were denied or blocked."
"On Friday 15th November 1996 the pursuer asked Professor MacCormick to put a stop to Dr Good's disciplinary threats since the pressure was interfering with his teaching and health. The pursuer's lawyer, Mr Ian Kennedy, told Professor MacCormick about the pursuer's mental state in December. It was foreseeable that if the disciplinary threats were continued, the effects on the pursuer's health would be severe."
"The loss, injury and damage to the pursuer's mental health were caused or materially contributed to by the fault and negligence of the defenders, and by said employees of the defenders, for whose acts and omissions the defenders are vicariously liable. It was the defenders' duty to take reasonable care for the safety of their employees including the pursuer, and to avoid exposing them to unnecessary risk of injury, including injury to their mental health. It was their duty to take reasonable care to devise, maintain and enforce a safe system of work. It was their duty to take reasonable care that the pursuer was not exposed to levels of stress when acting in the course of his employment which were likely to cause him psychiatric injury or other injury to his mental health. The defenders and their said employees knew or ought to have known that the individual and cumulative effects of all the incidents hereinbefore condescended upon would be to expose the pursuer to levels of stress which were likely to cause the pursuer psychiatric injury. It was their duty to take reasonable care to see to it that the pursuer's work load was equitably arranged; that his experience, both in administration and teaching, was properly recognised; that the best use was made of his talents; and that he was not bullied, in particular by his Head of Department, Dr Tony Good. The frequency, regularity and intensity of Dr Good's unwarranted personal attacks on the pursuer over time were of such severity that they were brought to the attention of the defender [sic] in a variety of ways, all as set forth herein. Nevertheless the defender [sic] and its employees ignored the pursuer's complaints, suggestions for action, and proposals to remedy the difficulties which he experienced in the course of his employment over many years, and took no action, or in any event no effective action, either to properly investigate or to prevent any recurrence of the behaviour of their employees, and in particular Dr Good and Professor Cohen, of which the pursuer complained. The pursuer was scrupulous to use established channels for raising the difficulties which he experienced, and for lodging complaints. When the pursuer complained of adverse effects on his health, it was the duty of the defender [sic] to have him seen by their occupational health medical staff; to seek recommendations from them; and to implement any recommendations which were made. It was their duty to give, devise, institute and maintain procedures for assessing, understanding, and responding to the pursuer's complaints concerning the circumstances of his employment, the circumstances surrounding his appeal, and the appraisal of his performance as a teacher and supervisor. It was their duty to give such specific safety instructions for dealing with the circumstances of an employee (such as the purser) who complained increasingly of adverse psychological effects and damage to his mental health by reason of the circumstances of his employment, as a reasonable employer, having regard for the health and safety of his employees, would have done. It was the duty of the defender [sic] to recognise the onset of psychological effects caused by the circumstances of the pursuer's employment, and to take appropriate measures for his care and protection, for example, by not threatening him with disciplinary processes when he had done nothing to deserve such threats; by lightening his teaching load; by including him in the counsels of the DSA; and by treating him in a manner commensurate with his experience and reputation. Having been altered [sic] to the onset of mental illness, it was their duty to provide for breaks and time off so as to allow him to recover. If training was required for the pursuer, it was their duty to assess whether there was any need for it; to provide it, for example in administration procedures within the department and to see to it that it was followed through and adopted. It was their duty in any event to see to it that his requests for meetings with senior members of staff were not ignored; were timeously arranged; and attempted to achieve a practical result for the benefit of the pursuer. It was their duty to require the pursuer to take time off work, and to supervise his workload following his return in order to see to it that he was not overburdened during his recovery period. In each and all of the duties incumbent on them the defender [sic] failed and thereby caused or materially contributed towards the pursuer's loss, injury and damage. They knew or ought to have known that if they failed in these duties then damage to the pursuer's mental health would result. Had the defender and his said employees [sic] performed the duties incumbent on them, the damage which the pursuer sustained to his mental health would not have occurred."
"As a result of the various incidents hereinbefore condescended upon the pursuer suffered loss, injury and damage. In 1996 the pursuer began to display symptoms of a Major Depressive Disorder. He was prescribed medication. He was signed off work in February 1997. He became seriously ill; was prescribed anti-depressant medication; became unable to carry out everyday transactions; became solitary and introverted; and was unable to function. He lost interest for a long period in the subject which he taught and in which he held such a distinguished reputation. No worthwhile attempts at improving his conditions, nor at reconciliation within the DSA were made by the defender [sic], and they offered him no treatment, care, counselling or alternative employment provision of any kind. It would have been practicable in all the prevailing circumstances to have required him take a break and undergo treatment; to have lessened his workload; and to have devised and instituted intra-departmental procedures to ensure that he was listened to and his concerns were taken into account. He accepted early retirement from the defender [sic] on 20 November 1997, as he had no real alternative."
Limitation
[12] The first plea-in-law for the defenders is in the following terms:
"The action being based on alleged acts and omissions occurring more than three years prior to the raising thereof is barred by the passage of time and should be dismissed."
"....the present action was signetted on 3rd February 2000 and was served on the defenders thereafter. The action being based on alleged acts and omissions occurring more than three years prior to the raising thereof is barred by the passage of time in terms of Section 17 of the Prescription and Limitation Act 1973 [sic]."
[15] Section 17(2)(a) of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act") provides, so far as relevant, that no action of damages to which the section applies shall be brought unless it is commenced within a period of three years after the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later. The section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries: Section 17(1).
[16] It is immediately apparent from a reading of the above provision that the first plea-in-law for the defenders contains an unsound legal proposition and is ineptly drafted. What is relevant for the purpose of determining whether this action is time-barred under Section 17(2)(a) of the 1973 Act is not the date when the alleged acts and omissions occurred, but the date when the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later.
[17] In presenting her submission that the action was time-barred, Miss Shand referred first to the averment by the pursuer in Condescendence 18 that in 1996 he began to display symptoms of a Major Depressive Disorder. The earlier averment in Condescendence 12 was that in August 1996 the pursuer suffered a serious psychiatric collapse and came to be under medical supervision and treatment. It was therefore the case that the pursuer had suffered damnum by August 1996. As the action was brought on 3 February 2000, more than three years after the date on which the injuries were sustained, it was prima facie time-barred under Section 17(2)(a) of the 1973 Act. There was no attempt by the pursuer to invoke Section 17(2)(b). The action should therefore be dismissed as being time-barred.
[18] In response the pursuer read out and adopted as his submission the terms of an Opinion which he had received from junior counsel (Mr Devlin) to the effect that it could be argued that there had been a continuing act or omission by the defenders which ceased only on the pursuer accepting early retirement on 20 November 1997. The pursuer stated that he was "still in the classroom" on 3 February 1997 and submitted that in his pleadings he was saying that between February and December 1997 the defenders should have been doing something to get him back into work. If his account of events were taken pro veritate, the action had been commenced within three years of the relevant date. Miss Shand's riposte to this was to submit that no continuing act or omission could be identified in the pursuer's pleadings. The averments covered complaints about different things done by different employees of the defenders at different times from 1985 onwards. This was not a case of a continuing act or omission unless the pursuer were to delete all his averments about things alleged to have happened before the alleged threats in 1996.
[19] It is unfortunate that the pursuer, being a party litigant, has not answered the defenders' averments about limitation in Answer 19 and, in particular, has no averment that his action is not time-barred on the ground that the injuries were sustained by him as a result of an act or omission which was a continuing one and ceased within the period of three years before the bringing of the action. That was his position when he came to make his submission. In these circumstances I consider that it is necessary to analyse his pleadings in order to determine whether they are capable of amounting to averments of a continuing act or omission which ceased on or after 3 February 1997. If that is not the case, then his action would be clearly time-barred as it relates to injuries sustained by him on an unspecified date in August 1996, well outwith the period of three years before the bringing of the action.
[20] In my opinion it is not possible to say, purely from a reading of the pleadings, that the action is not based on injuries sustained as a result of a continuing act or omission which continued to a date within the period of three years before the bringing of the action. It seems to me that Miss Shand's approach was simply to focus on the reference by the pursuer in Condescendence 12 to his having suffered a serious psychiatric collapse in August 1996 and to assert that the action was therefore clearly time-barred, without having regard to other averments by the pursuer which cover the period from August 1996 up to the period of his early retirement on 20 November 1997. When the entirety of his averments in Condescendences 12 to 18 is considered, it is in my view not possible to affirm at this stage that the action is time-barred. It is clear that he is complaining of events in November and December 1996 and January and May 1997. It is also clear from his averments of breaches of duty in Condescendence 17 and his averments of loss in Condescendence 18 that he is seeking to make out a case of breach of duty and loss right up to the acceptance by him of early retirement on 20 November 1997. I therefore do not consider that it would be open to me at this stage to dismiss the action on the ground that it is time-barred. Whether this is an action based a continuing act or omission which ceased less than three years before the bringing of the action is an issue which would require to be determined after proof if the averments are otherwise relevant.
Relevancy
[21] Miss Shand submitted that, for the action to be relevant, the pursuer had to aver that he suffered a recognised psychiatric illness and that it was reasonably foreseeable that he would suffer such an illness to the party charged with negligence, and, further, that the illness was caused by the acts or omissions of which the pursuer complains. Reference was made to the cases of Ward v Scotrail Railways Limited 1999 SC 255, Rorrison v West Lothian Council 2000 SCLR 245 and Hatton v Sutherland [2002] 2 All ER 1. Adopting the language used by Hale LJ at para 23 in Hatton v Sutherland, Miss Shand submitted that the threshold question was whether psychiatric injury to the pursuer was reasonably foreseeable to the defenders. (I must record that since the procedure roll debate in this case the House of Lords on 1 April 2004 in Barber v Somerset County Council [2004] UK HL 13 reversed the decision of the Court of Appeal in one of the four cases in Hatton v Sutherland. At the same time the House approved the statement of principles by Hale LJ: see Lord Scott of Foscote at paras 5 and 10.) Miss Shand went on to submit that the action failed to provide (1) specification of the acts and omissions upon which the pursuer founded; (2) specification of the acts and omissions of individual employees of the defenders; and (3) specification of which of the myriad of duties were incumbent upon the defenders personally or on any particular individual charged with negligence. The pleadings amounted to a catalogue of complaints without saying who was negligent and the defenders simply did not have notice of the case they had to meet. They did not know who was charged with negligence or what the negligence was said to be. The pursuer did not have a case to instruct that it was reasonably foreseeable to any particular individual that the pursuer would suffer a recognised psychiatric illness. If a particular individual was being blamed, the pursuer would have to aver that that individual knew or ought reasonably to have known that what he did would result in psychiatric injury to the pursuer. Reference was made to the case of McKeown v Lord Advocate (unreported, 22 January 2001), in which Lady Paton had held at para 35 that, as there was on Record no case of vicarious liability naming a particular employee of the defenders as an employee accused of a breach of duty, and averring in what way he personally had failed, the pursuer should not be permitted to present a case of vicarious liability blaming that employee as having been negligent. The fact that in the first sentence of Condescendence 17 the pursuer had averred that the loss, the injury and damage to his mental health were caused or materially contributed to by the fault and negligence of the defenders "and by said employees of the defenders, for whose acts and omissions the defenders are vicariously liable", did not overcome the difficulty, which consisted of the question, for which employees were the defenders vicariously liable and upon what basis? At one point in her submissions Miss Shand ventured to submit that some of the conduct averred against individual employees of the defenders (in particular, Dr Good, who was being accused of a personal vendetta against the pursuer) fell outwith the scope of their employment, but she retreated from such a submission when referred by me to the decision of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215.[22] Miss Shand then proceeded to examine in detail the averments which the pursuer had made about each of the named individuals who were employees of the defenders. So far as the averments of negligence in Condescendence 17 were concerned, there were no separate cases of fault against each individual blamed. Moreover, it was there averred that it was the duty of the defenders to take reasonable care that the pursuer was not exposed to levels of stress when acting in the course of his employment which were likely to cause him psychiatric injury or other injury to his mental health. There was no legal duty to take reasonable care not to cause the pursuer an injury to his mental health which did not amount to psychiatric injury and the words underlined were irrelevant. Further criticisms could be made of the averments of duty. For any particular person to be aware of the cumulative effect of all the incidents mentioned he would have to have known of every single incident. It was not clear what exactly certain words meant. For example, did the words "their duty" refer to the defenders or to "said employees"? What was the meaning of the expression "equitably arranged"? What did the phrase "that his experience, both in administration and teaching, was properly recognised" mean? Lastly it was not clear from the averments of loss for what loss the pursuer was claiming. Was it restricted to solatium? In summary, the case of fault against the defenders was irrelevant and in any event the averments of fact were lacking in specification and did not give the defenders clear notice of the case against them.
[23] In reply the pursuer, who presented his submissions with moderation and courtesy, began by referring to the decision of Lord Macfadyen in Cross v Highlands & Islands Enterprise 2001 SLT 1060. At paragraph 60, page 1075 B-C his Lordship stated as follows:
"It seems to me that the common law duty of an employer to take reasonable care for his employee's safety and health, and to provide and maintain for him a safe system of working, ought to extend to include a duty to take reasonable care not to subject the employee to working conditions that are reasonably foreseeably likely to cause him psychiatric injury or illness."
[25] It seems to me from the first sentence of Condescendence 17 (the condescendence of loss) that the case the pursuer seeks to make against the defenders is based on both direct and vicarious liability. It is there averred that the damage to his mental health was caused or materially contributed to by the fault and negligence of the defenders "and by said employees of the defenders, for whose acts and omissions the defenders are vicariously liable". It appears from the terms of that averment that the pursuer is seeking to make a case of liability against all previously mentioned employees of the defenders. He goes on to aver that it was their duty to take reasonable care that he was not exposed to levels of stress when acting in the course of his employment which were likely to cause him psychiatric injury "or other injury to his mental health". It is now well established that the common law duty on an employer in the present context is restricted to a duty to take reasonable care not to cause a recognised psychiatric injury or illness to the employee: see, for example, Rorrison v West Lothian Council at pages 250-1. There is no duty to take reasonable care not to cause other injury to the mental health of an employee, and in my judgment the words "or other injury to his mental health" are therefore plainly irrelevant. The pursuer further avers in Condescendence 17 that the defenders and their said employees knew or ought to have known that the individual and cumulative effect of all the incidents hereinbefore condescended upon would be to expose him to levels of stress which were likely to cause him psychiatric injury. In my view a major defect in the pursuer's case is that he had failed to identify any person within senior management as representative of the University throughout the period covered by his averments and as being the person who possessed knowledge of the events complained of and of their effects upon his mental state, or to whom knowledge of these events and their effects upon his mental state could reasonably be attributed. In Ward v Scotrail Railways Limited the pursuer's superior, the defenders' Customer Services Manager, was identified as being in effect her employer. In Fraser v The State Hospitals Board for Scotland the general manager of the hospital was identified as the person who, for the purposes of the action, could be regarded as the employer. He was alleged to have been responsible for the disciplinary regime imposed upon the pursuer in that case and to have been aware of its liability to produce psychiatric injury. In the present case it is difficult to see how the pursuer can relevantly aver that the defenders ought to have foreseen the risk of psychiatric injury to him when he has not identified anyone within senior management as being for practical purposes his employer, who knew or ought to have known that he was likely to suffer psychiatric injury. A further difficulty for the pursuer is that this is not a case based on a course of conduct of a precise kind by a single individual, but upon what I consider to be isolated incidents of different kinds by different individuals over a long period of time. For direct liability to attach to the defenders someone within their management would require to have knowledge of all incidents and their likely effect of producing a recognised psychiatric illness in the pursuer.
[26] What I have to decide is whether, considering the pursuer's averments in their entirety, they are capable of amounting to a relevant case that psychiatric injury to him was reasonably foreseeable. This was what was described as "the threshold question" in Hatton v Sutherland, in which it was stated that foreseeability depended upon what the employer knew or ought reasonably to have known about the individual employee. There is nothing in the pursuer's case which suggests that he suffered from any form of psychiatric illness as a result of events at work until August 1996 and there is, in my opinion, nothing in his averments of fact which would suggest that psychiatric injury was or ought to have been reasonably foreseeable to anyone within senior management of the University before August 1996. The nearest he comes to making such an averment is when he avers in Condescendence 14 that between 1991 and 1997 he had approached various of the defenders' employees to indicate his distress at the incidents described and the effects thereof upon his psychological health, but this cannot possibly be taken as an averment that he had suffered a recognised psychiatric illness and that he had made that known to someone within senior management of the University. In Condescendence 16 it is averred that on Friday 15 November 1996 the pursuer asked Professor MacCormick to put a stop to Dr Good's disciplinary threats since the pressure was interfering with his teaching and health and that the pursuer's lawyer told Professor MacCormick about the pursuer's mental state in December. There then follows an averment that it was foreseeable that if the disciplinary threats were continued the effects on the pursuer's health would be severe. These averments do not state whether the pursuer told Professor MacCormick precisely how the threats were interfering with his health or what it was that the pursuer's lawyer told Professor MacCormick about the pursuer's mental state in December 1996. In my view the pursuer does not begin to aver a relevant case that it was reasonably foreseeable to anyone within the senior management of the defenders or to any other person for whom the defenders were responsible that Dr Good's disciplinary threats would cause psychiatric injury to him. In summary, therefore, I am satisfied that the pursuer has failed to aver a relevant case against the defenders or any employee for whom they were responsible that their acts or omissions would be likely to cause him to suffer a recognised psychiatric illness. His action is therefore irrelevant.
[27] So far as the defenders' many criticisms of the lack of specification in the pursuer's averments of fact are concerned, I would, had I not come to the above conclusion, have allowed a proof before answer. I do not consider the pursuer's averments of loss to be irrelevant but as they stand they amount to no more than a claim for solatium. There are no averments of any financial loss.
Decision
[28] As I consider that the pursuer's averments are irrelevant for the reasons given above, I shall sustain the second plea-in-law for the defenders and dismiss the action.
