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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pratt v. The Scottish Ministers [2005] ScotCS CSOH_59 (04 May 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_59.html Cite as: [2005] CSOH 59, [2005] ScotCS CSOH_59 |
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Pratt v. The Scottish Ministers [2005] ScotCS CSOH_59 (04 May 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 59 |
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A2250/00
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OPINION OF LORD BRODIE in the cause EDWARD PRATT (AP) Pursuer; against THE SCOTTISH MINISTERS Defenders:
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Pursuer: Olson; Drummond Miller
Defenders: Cherry; Brodies
4 May 2005
The action
[1] In this action, the pursuer sues the Scottish Ministers, as responsible for the Scottish Prison Service. He seeks damages for personal injury arising out of events which occurred on 3 August 1997 and shortly thereafter. [2] The pursuer avers that on 3 August 1997 he was working in the course of his employment with the Scottish Prison Service as a prison officer in Barlinnie Prison. There was a fight between inmates. The pursuer intervened to break up the fight. One of the inmates, a man named Collins, was bleeding. As the pursuer grabbed him, Collins shook his head. As a result the pursuer's face and shirt became covered in Collins's blood. Some of the blood went into the pursuer's mouth and he swallowed it. Collins was an intravenous drug user. On 5 August 1997 the pursuer attended at Ruchill Hospital, Glasgow, for the administration of tests in order to ascertain whether he had become infected with either Aids or Hepatitis. He had to wait three months and six months respectively for the results of these tests. When the results eventually became available they indicated that the pursuer was not infected but he avers that, while waiting for the results, he developed a mixed anxiety and depressive state. The consequences of this psychiatric illness have included the pursuer being unable to continue in his employment and being dismissed in January 2001. He avers that his illness was caused by fault on the part of the Scottish Prison Service in failing to provide him with immediate counselling or support to help him to deal with the trauma of the incident on 3 August 1997. He avers that it was the duty of the Scottish Prison Service to arrange for an immediate blood test, to arrange for him to change his bloodstained shirt and to make early arrangements for support or counselling to help him with his continued anxiety and uncertainty during the period when he did not know whether or not he had contracted Aids or Hepatitis. The sum sued for is £300,000.The motion
[3] On 21 April 2005, I heard a motion at the instance of the pursuer to allow the Minute of Amendment for the Pursuer to be received and marked No. 28 of process and to allow the defenders to lodge Answers thereto, if so advised, within 28 days. That motion had originally been made at the Bar before Lord Kingarth at a By Order hearing on 18 March 2005 and continued. The background was that on 16 November 2004, a motion had been enrolled to discharge a diet on the Procedure Roll, then set down for 18 November 2004, on the narrative that the pursuer wished to amend his pleadings and was in the process of recovering documents under specification in order to allow him to do so. That motion was marked as opposed for the reasons stated at length on the motion sheet. The motion came before Lord Kingarth on 18 November 2004. Lord Kingarth allowed the motion to be dropped but he ordained the pursuer to lodge a Minute of Amendment within four weeks and discharged the Procedure Roll diet. The Minute of Amendment, No. 28 of process, was lodged within that timescale but, by oversight, no motion for the Minute to be received, as is required by Rule of Court 24.2(1)(a), was enrolled. That remained the position and that is why the case was brought out By Order before Lord Kingarth on 18 March 2005. [4] Before me, Mr Olson appeared on behalf of the pursuer and moved the motion. The motion was opposed by Miss Cherry, on behalf of the defenders. In outline, the basis of that opposition was as follows. First, it was Miss Cherry's submission that the court should not exercise its discretion to allow the Minute of Amendment, given the pursuer's delay in progressing the action. She submitted that to allow amendment at this late stage would result in prejudice to the defenders and consequent injustice which was not capable of being compensated by an award of expenses against the pursuer who, she pointed out, was an assisted person. It was further Miss Cherry's submission that amendment in the terms proposed by the Minute, No. 28 of process, should not be allowed because it sought to change the basis of the pursuer's case after the expiry of the limitation period provided by section 17 of the Prescription and Limitation (Scotland) Act 1973.Procedural history
[5] Before further developing her submissions, Miss Cherry turned to consider the history of the action which, for ease of reference, she had set out in a written Chronology of Events Since Raising of Action. Although, when he came to address me, Mr Olson provided me with further information, he specifically accepted the accuracy and sufficiency of Miss Cherry's Chronology. I have accordingly adopted it as a history of the relevant procedure. The action was raised on 1 August 2000, just before the expiry of the triennium. The action was immediately sisted. The sist was recalled in March 2002. The Record closed on 18 September 2002 and on 28 October 2002 the cause was appointed to Procedure Roll on the defenders' plea to relevancy and specification. A Procedure Roll diet was assigned for 28 February 2003. The defenders provided a first Note of Arguments, No. 22 of process (in Miss Cherry's Chronology this is said to have been lodged on 24 December 2002, although the process copy is marked as having been lodged on 26 February 2003). On 19 February 2003 a Minute of Amendment was intimated by the pursuer together with a motion to discharge the diet of Procedure Roll fixed for 28 February 2003. On 28 February 2003 the diet of Procedure Roll was discharged, the pursuer being allowed to withdraw his Minute of Amendment and to lodge a fresh Minute of Amendment within a period of three weeks. The pursuer was allowed to lodge that Minute of Amendment late on 16 April 2003. It was marked No. 23 of process. The defenders lodged Answers on 23 May 2003. On 23 July 2003, on the unopposed motion of the pursuer, the Court prorogated the time for adjustment of the pursuer's Minute of Amendment and the defenders' Answers, Nos. 23 and 24 of process, for a period of four weeks. The Record was amended on 29 August 2003 and the cause again sent to Procedure Roll (there having been three months for adjustment). A diet of Procedure Roll was originally fixed for 3 December 2003 but an alternative diet of 7 May 2004 was allocated to suit the convenience of counsel. On 6 April 2004 the defenders lodged a supplementary Note of Arguments, No. 26 of process. On 7 May 2004 the diet of Procedure Roll was discharged on the pursuer's motion. Mr Olson appeared for the pursuer on that date. He explained that counsel previously instructed on behalf of the pursuer had advised the Scottish Legal Aid Board that he considered that there were no prospects of success. As a result there was no legal aid cover for the Procedure Roll diet. Mr Olson advised the Court that he required further information before furnishing the Scottish Legal Aid Board with an opinion on prospects. He anticipated that a further Minute of Amendment might be required. The case was continued to a By Order hearing on 4 June 2004 when counsel then appearing advised that an opinion had been provided to the Scottish Legal Aid Board supportive of further funding of the action but that "a new route may require to be taken". Given that the case had previously been remitted to the Procedure Roll, no further order was made in relation to procedure. Thereafter a further diet of Procedure Roll was fixed for 27 October 2004. On 22 September 2004 the pursuer enrolled for commission and diligence for recovery of documents under reference to a specification. That motion was granted on 1 October 2004. The Scottish Prison Service was named as a haver. On 20 October 2004 copies of documents falling within the specification were faxed to the pursuer's agents. On the same date the pursuer's motion to discharge the diet of Procedure Roll, on the basis that further documents required to be recovered, was refused in hoc statu. The diet of Procedure Roll on 27 October 2004 did not proceed due to there being no judge available to hear the debate. A further diet of Procedure Roll was fixed for 18 November 2004. On 3 November 2004 the defenders' agents sent to the pursuer's agents the documents previously sent by fax, together with a certificate in the terms appended to Form 35.3-A of the Rules of Court, signed by a representative of the defenders. On 16 November 2004 the pursuer enrolled to discharge the diet of Procedure Roll fixed for 18 November 2004. On 17 November 2004 a commission was held at which a representative of the Scottish Prison Service confirmed what had been certified on 3 November 2004: that the Scottish Prison Service held no documents falling under the specification, other than those which had been originally sent by fax on 20 October 2004. The case called on Procedure Roll on 18 November 2004. As I have previously indicated, on that date Lord Kingarth allowed the pursuer four weeks within which to lodge a Minute of Amendment. The Minute of Amendment, No. 28 of process, was intimated on 15 December 2004 but, as I have also previously indicated, no motion was enrolled to have it received. A motion to have the Minute of Amendment to be received was made for the first time on 18 March 2005 when the case called By Order before Lord Kingarth.Submissions
Submissions for the defenders
[6] Having taken me through the procedural history of the case, as set out in her Chronology of Events, Miss Cherry emphasised that the case had been on Procedure Roll on no fewer than four occasions, on each of which a discharge had been sought on behalf of the pursuer. In the spring of 2003 there had been a lengthy amendment process which had allowed the pursuer three months to adjust in response to the defenders' Answers to his Minute of Amendment. It was by Answers lodged on 23 May 2003 that the defenders had introduced averments relating to the Barlinnie Care Team. These averments were now to be found in the Closed Record, No. 25 of process, at pages 11B-12 A. The pursuer's response to these averments was to be found at page 10B-C. However, no case of fault, premised on the existence of the Barlinnie Care Team, had been made at that time. The importance of this was that the proposed Minute of Amendment, No. 28 of process, was largely concerned with the Barlinnie Care Team. There were averments that specified members of staff had not advised the pursuer that he could obtain support and counselling from the Barlinnie Care Team and had not arranged for a member of the Team to contact the pursuer. There were further averments about the purpose of the Barlinnie Care Team, taken from a booklet called "Barlinnie Care Team Service to Barlinnie" (which was among the documents faxed to the pursuer's agents on 20 October 2004), and there were averments as to there being a duty on the part of the defenders to take reasonable care to refer the pursuer to the Team for counselling and support. [7] It was Miss Cherry's submission that the proposed Minute of Amendment sought to introduce a new case, both in relation to fault and in relation to causation. She drew attention to the existing duties of care which were to be found set out at pages 20C-21D of the Closed Record. The Minute of Amendment sought to make a new case based on the existence of the Barlinnie Care Team. The existing averments on behalf of the pursuer did not admit the existence of the Care Team. At page 10B of the Record the pursuer includes the averment that:"Esto such services existed ... it was incumbent upon the management of the prison ... to advise said services and instruct members thereof to contact the pursuer immediately and provide them with the opportunity to speak about the incident."
However, importantly, in the Record as presently pled there were no averments which, on a proper reading, could instruct the existence of any duties of care owed by the Scottish Prison Service consequent upon the existence of the Care Team or breach of such duties. It was further Miss Cherry's submission that the Minute of Amendment sought to introduce new averments relating to causation. What was presently averred in the Closed Record (at page 23B) was that as a result of failures on the part of the Scottish Prison Service the pursuer had sustained loss, injury and damage in the form of psychiatric illness. The Minute of Amendment, on the other hand, suggested that the pursuer's proposed case was that had it not been for these failures "the pursuer's psychiatric illness would not have been exacerbated". The Minute of Amendment faced the defenders with problems of investigation. The Barlinnie Care Team, which had been set up in 1994, was no longer in existence. Discovering precisely what it might have offered to the pursuer in the circumstances in which he found himself on 3 August 1997 was by no means straightforward. The pursuer's agents had advised the defenders' agents of the names of 22 individuals in respect of whom they wished precognition facilities. Of these, many had moved on to different employment. Their whereabouts might be difficult to ascertain.
[8] Miss Cherry turned to consider the law which was relevant to an application to amend pleadings in terms of chapter 24 of the Rules of Court. Amendment was a matter for the discretion of the Court. Four circumstances were relevant to an exercise of this discretion: (1) the extent to which the party seeking to amend had delayed in putting forward what was proposed by way of amendment; (2) what, if any, was the consequential prejudice to the other party; (3) the stage in the proceedings at which the application to amend was made; and (4) what conditions might be imposed in the event of amendment being allowed with a view to reducing any prejudice which arose. Miss Cherry referred to what had been said by Lord Guthrie in Dryburgh v National Coal Board 1962 SC 485 at 492:"In deciding whether or not a Record should be amended the Court seeks to justice both to the pursuer and to the defenders. When a Minute of Amendment is lodged very late in the course of a litigation, the time may have come when it would be unjust to the other party to allow the minute to be received, the consequent postponement of the diet of proof or trial, consequent delay in the final determination of the case and additional expense occasioned by further precognition of the witnesses. Moreover, the investigation of circumstances newly averred long after the date of the occurrence giving rise to the action may result in serious prejudice to the other party, which should not be allowed".
Miss Cherry invited me to follow that approach. She also referred to what had been said by the Lord Justice Clerk (Thomson) in Thomson v Corporation of Glasgow 1962 SC (HL) 37 at 51 to 52. In Miss Cherry's submission a further consideration applied where a pursuer was attempting to amend subsequent to the expiry of a limitation period, as was the case here. The relevant line of authority, beginning with Pompa's Trustees v Corporation of Edinburgh 1942 SC 119, was conveniently discussed in the opinion of the Court, delivered by the Lord Justice Clerk (Ross), in the unreported cases Evans v Northern Coasters Ltd, t/a Stena Offshore and Evans v Hamilton Brothers Oil and Gas Ltd, 20 January 1995. Putting the matter generally, a pursuer will not be allowed to amend after the expiry of the triennium where the proposed amendment will change the basis of the pursuer's action. Miss Cherry conceded that not every alteration amounted to a change in the basis of the pursuer's action. There will be cases, such as M'Phail v Lanarkshire County Council 1951 SC 309, where the alteration is, in language borrowed from Black v John Williams & Co 1924 SC (HL) 22, not so much the offering of a new front but the presentation of the old front from a new angle: not a change to the foundation of an action, but rather only an alteration to its superstructure. However, it was Miss Cherry's submission that what was proposed here was a radical change in the basis of the pursuer's case and that in three respects: (1) it added a new chapter of facts relating to the existence of the Barlinnie Care Team and the nature of the services which it offered; (2) it introduced a new case of fault, being a failure to refer to a specific internal service, as opposed to the existing general and inspecific averments about failing to provide support or counselling; and (3) it was now averred that the result of the defender's failures was an exacerbation of an existing psychiatric illness rather than the development of an illness de novo. This was of significance, having regard to the law as to the circumstances giving rise to a liability for psychiatric injury, as it is discussed by Lady Paton in Keen v Tayside Contracts 2003 SLT 500 at 508K et seq and by Lord Scott of Foscote in Barber v Somerset County Council [2004] 1 WLR 1089 at 1092 (where he approves what had been said by Hale LJ in the Court Appeal, reported in [2002] ICR 613 at 631-632). Miss Cherry drew particular attention to the following passage in judgement of Hale LJ:
"Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but it may be easier to foresee in a known individual than in the population at large ... An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability ..."
Miss Cherry submitted that by his reference to "exacerbation" the pursuer was averring for the first time that, at the relevant time, he was already suffering from psychiatric illness. That would be a factor indicating a particular risk, specific to the pursuer, bearing on his susceptibility to psychiatric injury. The pursuer was accordingly making a significant alteration to the circumstances from which a duty to take steps to avoid further injury might be inferred.
[9] Miss Cherry accordingly stressed that she was being faced with a radical change of front on the part of the pursuer. This, she submitted, would require investigation in relation to the issues of fault, causation and quantification of damages. It could be anticipated that such investigation would be difficult if not impossible to carry out given that some seven years had passed since the relevant events. The defenders would accordingly be prejudiced if the Minute were allowed to be received. While there are cases where prejudice can be avoided or ameliorated by an award of expenses in favour of a party having to respond to a late amendment, this was not such a case. The pursuer here was legally aided. Any award of expenses would be of very limited value to the defenders. The court should accordingly exercise its discretion by refusing to receive the Minute.Submissions for the pursuer
[10] Mr Olson, while not in any way quarrelling with Miss Cherry's Chronology of Events, began by providing additional detail as to how more recent events had come about. At about the end of 2003 counsel then instructed on behalf of the pursuer had come to be of the opinion, based on his reading of the Ruchill Hospital records, that the pursuer had no real prospects of success in the action. As this was a case supported by Legal Aid, this view, quite properly, was reported to the Scottish Legal Aid Board. This led to what Mr Olson described as a purported withdrawal of the Legal Aid certificate. That was the position on 7 May 2004 when Mr Olson had appeared, explained to the Court that the pursuer did not have the benefit of Legal Aid and sought discharge of the Procedure Roll diet. The opinion of counsel previously instructed had not been shared by instructing solicitors. Mr Olson explained that it proceeded on a failure to understand what was meant by "counselling" when that expression was used in the Ruchill records. Counsel previously instructed had noted that the pursuer had actually received counselling in Ruchill and had concluded that the pursuer's employers could hardly be expected to provide anything more extensive and therefore potentially more efficacious than what had in fact been provided by the Health Service. That the pursuer had in fact received "counselling" bore both on the existence of a duty on the part of the employers and the causation of damage. However, what has emerged on further consideration is that all that the pursuer had received in Ruchill Hospital was certain factual information about the relevant diseases. He had not received counselling in the sense of psychological support. Mr Olson had therefore been able to write the opinion supportive of the pursuer's case for onward transmission to the Scottish Legal Aid Board. Mr Olson had advised the instruction of both a prison expert and a psychiatrist. Some difficulty had been experienced in obtaining this advice and time had been taken up because the Scottish Legal Aid Board had wished to see the report from the prison expert before authorising instruction of the psychiatrist. The defenders had indeed provided faxed copies of documents in response to the specification which had been approved on 1 October 2004 but they had not certified that these were all the documents which were available. That said, Mr Olson acknowledged that things had not been done quickly enough. He described the consequential delay as regrettable. However, he did not accept that the proposed Minute of Amendment introduced a new case. Mr Olson pointed to the averments at page 20C of the Closed Record as demonstrating that the pursuer's case was already to the effect that he should have received counselling and did not. The existing case was that counselling should have been provided in accordance with guidelines which had been adopted by the English Prison Service. The only change was to identify a further source from which that counselling might have come, that being the Barlinnie Care Team. The defenders already had averments as to the existence of the Barlinnie Care Team but if there proved to be difficulties in further investigation then these difficulties would also be faced by the pursuer. Mr Olson went on to submit that it was wrong to say that there had been a change in the averments relating to psychiatric injury. Here there was a precipitating event: the swallowing of possibly infected blood. This gave rise to certain symptoms of a psychiatric nature. The point at which these symptoms turned into a full-blown psychiatric illness was a question of degree. It was not possible to identify that critical point. The Minute of Amendment sought to make that clear. There was no intention to distinguish as between exacerbation, on the one hand, and simple progression of a disease process on the other. It was that the pursuer had swallowed blood and then not been counselled which had caused him to suffer injury. Mr Olson had no quarrel with what had been said in Keen or in Barber but he did not accept that the effect of these cases was that it was always be necessary to aver circumstances specific to the particular individual as indicating a risk of psychiatric injury before it could be said that a duty of care to take steps to avoid such injury to that individual would arise. On the matter of prejudice, Mr Olson reminded me that what the Court must do was to weigh the prejudice that might be suffered by one party in the event of an amendment being allowed against the prejudice which might be suffered by the other party if the amendment was not allowed. If this Minute of Amendment was not allowed to be received, the pursuer would lose the chance of succeeding on a case based on the existence of the Barlinnie Care Team. He had no rights which might relieve him from that loss. It could not, for example, be said that counsel previously instructed had been negligent in coming to the view that he did as to the point at which to investigate no further. Mr Olson accepted that the fact that the pursuer was a legally aided person meant that an award of expenses was of only limited use as a means of balancing prejudice but in the event of the pursuer succeeding in the action, funds would be available to meet an adverse award of expenses. Mr Olson concluded by reiterating that he accepted that there had been regrettable delay. This, however, was not the fault of any particular individual. Certainly it was not the fault of the pursuer. Mr Olson moved that the Minute of Amendment be received and answered, if so advised, within 28 days.Discussion and decision
[11] Parties were agreed that in determining whether to allow an amendment to pleadings the court has a wide discretion. It was not disputed that a proper stage for the exercise of this discretion is when a motion is made to receive a Minute of Amendment. It was similarly uncontroversial that, in the exercise of this discretion, special regard should be had to the circumstance that the Minute of Amendment seeks to introduce what is properly to be regarded as a new case subsequent to the expiry of any relevant limitation period: Greenhorn v J Smart & Co Ltd 1979 SC 427. As was submitted by Miss Cherry, other relevant factors comprise, or in event include: delay; consequential prejudice to the other party; the stage at which the application to amend is made and the availability of conditions which might be applied to ameliorate what would otherwise be the prejudice suffered by the other party's action. [12] In the present case there has been delay. Mr Olson acknowledged that expressly. When I refer to delay I have in mind three overlapping periods. The first is the period that has passed since the occurrence of the events complained of. By the time the motion came before me more than seven years and eight months had passed since the initial incident. The second period that I have in mind is that which commenced in May 2003 when the defenders intimated Answers to a Minute of Amendment which included averments about the Barlinnie Care Team. It has taken nearly two years for the pursuer to see them as important to his case. The third period began nearly a year ago with the instruction of new counsel and a fresh look being taken at the pursuer's case. I see each of these periods, albeit that they overlap, as giving rise to the conclusion that there has been delay in coming forward with the case that the pursuer now proposes. Now, as Mr Olson said, this may not be attributable to fault on the part of any individual. I have certainly no reason to believe that it is in any way fault of the pursuer. My impression is that what has occurred has had much to do with the difficulty experienced by the pursuer's advisers in figuring any sort of sufficiently specific case on the basis of which it can be contended that the pursuer's psychiatric symptoms have been caused by fault on the part of the defenders. Looking at the terms of the proposed Minute of Amendment and having regard to what Mr Olson said about the problems that he has encountered in obtaining advice, it seems to me that pursuer's advisers are still experiencing difficulty in this respect. Be that as it may, this is an action that has moved only very slowly and has included no fewer than four Procedure Roll diets at none of which the pursuer was ready to proceed. [13] If the Minute of Amendment were allowed to be received, Miss Cherry, on behalf of the defenders, claimed the defenders would suffer significant prejudice by having to carry out extensive investigations into circumstances as they applied more than seven years ago. By implication, this would require the expenditure of time and money with little expectation of detailed information being forthcoming as a result. I did not understand Mr Olson to dispute this. [14] As far as the stage at which the amendment is sought to be made is concerned, while it was the promise of this Minute of Amendment that led to the Procedure Roll diet of 18 November 2004 being discharged, to allow amendment now would not have the result of any other diet being lost. The loss of a diet and consequent further delay is therefore not a factor weighing against allowance of the proposed amendment. [15] As far as the availability of conditions being imposed which might ameliorate the position of the defenders is concerned, Miss Cherry stressed that because the pursuer was legally aided, it was unlikely that any award of expenses in favour of the defenders would be of any practical effect. Mr Olson acknowledged this but made the point that were this factor to weigh in the balance, the result would be that a legally aided party would be treated less advantageously than a party who was not in receipt of Legal Aid. This could hardly be satisfactory. I see the force of Mr Olson's observation but it seems to me that the means of a party to a litigation are nevertheless relevant. There are circumstances where what would otherwise be prejudice can be avoided by the payment of a sum of money, for example by way of an award of judicial expenses. If a party's resources are not such that he can afford to pay judicial expenses then that sort of prejudice cannot be avoided by that means. The present case did not appear to me to be one where all the anticipated prejudice could be avoided simply by the payment of judicial expenses. Miss Cherry's complaint was that because of the passage of time, the defenders were unlikely to be able to carry out necessary investigation as effectively as they would have been able to do had the case now being made by the pursuer been made earlier. That sort of prejudice cannot be avoided by an award of judicial expenses but it is, of course, also the case that any investigation that the defenders are required to carry out will involve them in expense. As Miss Cherry submitted, in the present case the expedient of an award of judicial expenses is not available as a means of mitigating that prejudice. [16] In my judgement the circumstances of delay and consequent prejudice in the present case are sufficient, taken by themselves, to justify a refusal of the motion to have the Minute of Amendment received. However, I was fortified in that conclusion by the separate consideration that, in my judgement, the pursuer was attempting to make a new case of fault ex facie more than four years after the date upon which the triennium expired. I should say that I was not persuaded by Miss Cherry's submission that the pursuer was seeking to rely on a different causal mechanism for his injuries. As presently pled, the pursuer's case is that consequent upon the experience of swallowing what might have been infected blood on 3 August 1997 he became increasingly anxious and depressed; that by March 1998 he was suffering from a mixed anxiety and depressive state, a recognised psychiatric illness; and that this was due to the failure of the Scottish Prison Service to take certain (by implication, potentially remedial or therapeutic) steps, one of which was the provision of what is described as "support or counselling". The Minute of Amendment proposes to delete the words from "he would suffer and continue to suffer the psychiatric illness of the kind hereinafter described" to the end of article 4 of Condescendence and to substitute them with: "any psychiatric symptoms that the Pursuer was suffering from as a result of ingesting Collins's blood would be exacerbated. In the exercise of each and all of these duties the [Scottish Prison Service] failed and by their failure materially contributed to the Pursuer's psychiatric illness. But for these failures in duty the Pursuer's psychiatric illness would not have been exacerbated". The defenders' averments except in so far as coinciding herewith are denied." I would observe that these averments are proposed to be inserted in article 4 of Condescendence where are to be found the pursuer's averments of fault, as opposed to article 5 where there are the averments of damage, but more to the point, I do not discern in the pursuer's use of the words "excacerbated" or "materially contributed" in the Minute of Amendment any real alteration from what is already averred in the Closed Record. I take a different view of what is proposed in relation to duties of care. This is a case of alleged psychiatric injury caused by negligence. Some of the difficulties in this area of the law are discussed in Keen v Tayside Contracts and Barber v Somerset County Council. While I would not accept as necessarily accurate a reading of these decisions that required a pursuer, in every case, to set out circumstances, particular to himself, before it could be said that there was a duty of care on the part of an employer to avoid psychiatric injury to that individual, I would accept that the existence and content of such duties of care are very dependent upon the precise circumstances of the case. The history of this action since the defenders intimated their Note of Arguments, No 22 of process, would suggest that those acting for the pursuer have experienced difficulty in identifying precisely what it was, by way of counselling and support, that the defenders had a duty to provide and which would have avoided the pursuer's psychiatric illness. As his case is presently pled, the pursuer relies on two documents: "Custody Care and Justice", published by the Home Office in 1991, and Notice to Staff 32/1991, issued by Prisons Headquarters in London (again, presumably, in 1991), as providing a specific basis for what he avers should have been done. While it is true, as Miss Cherry pointed out, that, on the hypothesis that a Staff Care Team existed, the pursuer has an averment on Record that it was "incumbent upon the management of the prison ...to advise such services and instruct members thereof to contact the pursuer immediately", neither the existence of the Team nor the terms of any booklet it may have produced is relied on as giving rise to duties of care, breach of which constituted the negligence founded on by the pursuer. That, on the other hand, is what I see the Minute of Amendment as intended to do. Mr Olson maintained that the proposed amendment did no more than introduce an alternative source of counselling and support. I cannot accept that. The pursuer has recognised a need to amend from at least 19 February 2003 by reason of his failure to specify what he means by "counselling and support" in the circumstances of the case. The Minute of Amendment, No 28 of process, is his attempt to do that, using material not previously founded upon. Looking at what the pursuer proposes by way of amendment from that perspective has led me to conclude that Miss Cherry was correct in submitting that what was proposed was materially different than what was presently on Record. In my judgement the proposed Minute of Amendment does indeed seek to introduce a new case after the expiry of the limitation period. That is only one consideration, albeit a strong consideration, pointing to refusal of a proposed amendment. [17] Looking to the factors of lateness and prejudice together with that of introduction of a new case, I thought it proper to exercise my discretion by refusing the motion to receive the Minute. Mr Olson moved me to grant leave to reclaim against that decision. It seemed to me appropriate to grant leave and I did so.
