Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 31
	OPINION OF LORD EMSLIE in the cause EDWARD PRATT (AP) Pursuer; against THE SCOTTISH MINISTERS Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Dewar QC; Olson; Drummond Miller LLP

Defenders: Sheldon; Dundas & Wilson

3 March 2009

Background

[1] Until his ill-health retiral in early 2001, the pursuer was a prison officer employed by the Scottish Prison Service ("SPS"). In this action he claims damages from the defenders, as representing his former employers, in respect of the mental health consequences of a traumatic incident at work on 3 August 1997. The issue for determination at the present time is whether the pursuer has pled a valid case for inquiry, or whether, as the defenders maintain, the claim should be dismissed as fundamentally irrelevant.

[2] On the occasion in question, the pursuer intervened to break up a fight between prisoners and, in the process, ingested a quantity of blood from one of the combatants who was known to be an injecting drug user. As SPS were allegedly aware, certain prisoners were infected with hepatitis B, hepatitis C and/or HIV; it was possible for such diseases to be transmitted by contact with their blood; and the ingestion of blood from a potentially infected prisoner was thus liable to be a traumatic event for the person concerned. Although the pursuer attended hospital for the necessary blood tests on the following day, he found it hard to cope with the projected three/six month delay before the results of these tests would be known. Within a week or so he was signed off work suffering from depression, and although the test results were eventually clear he developed a moderate depressive illness - a recognised psychiatric condition - from about September 1997 onwards. Between 1998 and 2001 he was intermittently off work for substantial periods before leaving the Prison Service altogether.

[3] According to the pursuer's averments, SPS from the outset owed him a duty of care extending to the provision of "early" counselling and support. Like their counterparts south of the border, SPS in fact had in place a counselling and support system designed to cater for just this kind of problem. In setting up the system, they had recognised the potential for mental health consequences from traumatic incidents or crises at work, and the aim was to resolve such consequences or at least reduce their severity or duration. For some reason, however, the pursuer was unaware that such a system existed, and was neither offered counselling nor put in touch with any member of the prison care team. As averred, his depressive illness was initially caused by the shock of ingesting potentially infected blood, but was materially contributed to by SPS' failure to implement their own counselling and support system at the appropriate time. Had the pursuer received early counselling and support, it is said, especially within the first week or so after the incident, his illness "... would have resolved, or at least it would not have been as prolonged and aggravated as it ... turned out to be".

Parties' submissions
[4] In support of their motion for dismissal of the action, the defenders contended that, for important policy reasons, the law imposed significant limits on the recovery of damages for purely psychiatric injury; that the pursuer's case did not fall within any of the recognised categories where such recovery might be permitted; that on the authorities psychiatric injury caused by fear of developing a physical disease in the future was not actionable; and that to sustain the present claim would risk burdening all employers with a general liability to insure the mental health of their workforce and others. Importantly, SPS were in no way blamed for the initial incident or for any subsequent working stresses. The pursuer's case of fault in Condescendence IV alleged only a failure to provide early counselling and support, and in that context there were insufficient averments to fix SPS with actual or constructive knowledge of the pursuer's susceptibility, at any stage, to develop a recognised psychiatric condition. A legal duty of care should not be confused with measures voluntarily instituted by SPS for the benefit of staff and others, and there was moreover a risk that such measures might be discouraged by any finding of liability in the present case.

[5] With these general considerations in mind, counsel for the defenders addressed me at some length on the authorities governing delictual liability for purely psychiatric harm. In his submission there were only three recognised categories of case in which such liability might arise. The first of these was exemplified by the decision of the House of Lords in Page v Smith 1996 AC 155, as subsequently interpreted in Frost v Chief Constable of South Yorkshire Police 1999 2 AC 455 and Grieves v FT Everard & Sons Ltd. (reported sub nom. Rothwell v Chemical & Insulating Co. Ltd.) 2008 1 AC 281. This category covered "primary" victims of accidents for which a defender carried legal liability and from which personal injury was foreseeable. Put simply, the present case could not qualify because (i) SPS were not blamed for the initial incident, and (ii) the House of Lords, while not over-ruling Page, had subsequently sought to confine the decision to its own special facts and circumstances.

[6] The second category, as illustrated by the decision of the House of Lords in Alcock v Chief Constable of South Yorkshire Police 1992 1 AC 310, covered bystanders and other "secondary" witnesses to direct harm inflicted on others. In such cases the law, of necessity, laid down strict control mechanisms to ensure that the floodgates were not opened to remote derivative liability. No doubt anomalies could be identified as between admissible and inadmissible claims, but on policy grounds it was important to hold the line where it currently stood. "Thus far and no further" was Lord Steyn's telling phrase in Frost. For present purposes it was sufficient to note that, since the pursuer was the only person affected, no question of "secondary" liability arose at all, far less any live issue as to the proper limits of recovery.

[7] The third category specifically concerned the employer/employee relationship, and permitted recovery where a person, often with known vulnerability, was negligently exposed to undue stress at work. The leading authority here was the decision of the House of Lords in Barber v Somerset County Council 2004 ICR 457, affirming the judgment of Hale LJ (as she then was) in the Court of Appeal where the case was reported sub nom. Hatton v Sutherland 2002 ICR 613. Although in this context the normal rules for employer's liability would prima facie apply, the recovery of damages for psychiatric harm was still subject to important policy restrictions. In particular, the development of some recognised psychiatric condition would have to be foreseen (and to occur), as opposed to any lesser degree of anxiety or upset, but even then Rothwell made it clear that there could be no recovery for freestanding psychiatric injury caused by fear of contracting a physical disease in the future. In the present case, significantly, the pursuer did not allege any avoidable stress at work; foreseeability of a recognised psychiatric illness had not been relevantly averred; and the illegitimate essence of the pursuer's claim was that he had fallen ill through fear of contracting HIV or hepatitis from ingested blood.

[8] In the result, according to the defenders, the pursuer had failed to bring himself within the protective umbrella of any of the categories in which recovery for purely psychiatric harm might be permitted. The only prior decisions which appeared to afford the pursuer some comfort were Melville v Home Office (reported sub nom. Hartman v South Essex NHS Trust) 2005 ICR 782 and McClurg v Chief Constable of the Royal Ulster Constabulary 2007 NIQB 53, where an English prison officer and a police officer from Northern Ireland respectively claimed damages for psychiatric illness precipitated by exposure to serious traumatic incidents at work. In each case the claim was allowed to proceed on allegations that, although actually foreseeing the relevant risks, the defendants had failed to implement their own (adequate) counselling and support systems which were already in place. While acknowledging that these cases bore some resemblance to the present, counsel sought to distinguish them on the basis (i) that Melville was procedurally questionable, having involved a trial on foreseeability only; (ii) that both cases concerned the repeated exposure of employees to trauma over an extended period, and (iii) that the decisions were incompatible with the control mechanisms affirmed by the House of Lords in this area of the law.

[9] In reply, senior counsel for the pursuer maintained that he had averred enough to meet the well-known test of relevancy as set out by the House of Lords in Jamieson v Jamieson 1952 SC HL 44. A claim like this could not be dismissed on relevancy grounds unless it could be said that, even on proof of all of a pursuer's averments, his case must still necessarily fail.

[10] Here, the pursuer was not a bystander or other "secondary" victim of trauma to others, so the special control mechanisms in Alcock did not come into play. Especially in an employment context, the ordinary principles of delictual liability applied, notably the well-known tripartite test discussed in such cases as Caparo Industries Plc v Dickman 1990 2 AC 605 and Gibson v Orr 1999 SC 420. The three essential ingredients for a claim in negligence were (i) foreseeability; (ii) proximity; and (iii) the court being satisfied that, in all the circumstances, the imposition of liability on a defender would be fair, just and reasonable. In the present case, the employer/employee relationship satisfied the requirement for proximity, and on the pursuer's averments the other two requirements were also amply met. In particular, SPS not only should have foreseen, but actually did foresee, the risk that if prison officers of ordinary fortitude suffered serious trauma in the course of their work, this might well trigger problems with their mental health.

[11] From 1991, it was averred, the English and Welsh prison services provided early counselling for staff involved in violent or other stressful incidents at work. The purpose of this counselling was to prevent the onset of mental illness or to reduce its severity or length. Based on the same underlying considerations, similar counselling services had been set up by SPS at the prison where the pursuer worked, and a booklet issued at that time stated inter alia

"... It is recognised that serious incidents, personal trauma affect different people in different ways. Almost everyone has some sort of reaction and this is normal and natural. The Prison Service recognises that it has a duty of care for all of its staff and prisoners and wants to minimise the harmful effects of a serious incident..."

Although the pursuer's pleadings contained many averments of what SPS ought to have known in such situations, the essence of his claim was that they had in fact foreseen the relevant risks, as evidenced by the setting up of a formal counselling and support system. Indeed, it was averred that on returning to work two days after the incident the pursuer was approached by the Hall Governor, Donald Lamont, who told him that in terms of the procedures for dealing with such incidents the pursuer should have been sent straightaway to an outside hospital for a blood test and offered counselling. The test of foreseeability thus being clearly satisfied, it was also fair, just and reasonable for liability to be imposed on the defenders. The risks involved were serious; the potential remedy was relatively straightforward and inexpensive; and with a system actually in place SPS could not be heard to say that they owed the pursuer no duty of care at all.

[12] It was of course accepted that special constraints applied to any claim for purely psychiatric injury. The pursuer was, however, a direct primary victim of both the triggering incident and SPS' failure to provide him with necessary counselling and support. The present case was therefore close to the situation covered by Page, and a traumatic incident at work might be assimilated to an accident caused by negligence. Observations by Lord Steyn in Frost (at page 500) had left open some room for extension of the Page doctrine, and in present circumstances the averments should be held sufficient to entitle the pursuer to a proof before answer.

[13] Alternatively, applying the ordinary common law principles summarised by Hale LJ in Hatton (at paragraph 43), the present case was akin to one based on occupational stress. In Rothwell, Lord Hoffman (at paragraph 24) confirmed that the Hatton principles applied, not just to claims based on occupational stress, but to claims alleging any breach of duty by an employer. There was no reason to distinguish the negligent imposition of undue stress at work from a negligent failure to relieve work-related stresses, and both Melville and McClurg were cases in which claims on the latter basis had been allowed to proceed. As a matter of relevancy, therefore, it could not be said that, if the pursuer were to prove all of his averments, his claim was still bound to fail. Where a generic susceptibility of ordinary prison officers to mental health consequences following traumatic incidents at work had been recognised and provided for by SPS, the existence of a duty of care towards the pursuer could not be discounted or negatived at this time. No special susceptibility of the pursuer as an individual was relied on here, not least because SPS' duty of care was claimed in the immediate aftermath of the incident on 3 August 1997 when psychiatric symptoms had not clearly emerged. In that latter context, it was said, the pursuer's averment at page 39 A/B could and should be read as consistent with his primary averments on "early" counselling from page 8 A/B onwards.

[14] In the circumstances of this case, moreover, the defenders' "floodgates" argument was without substance. There could be no question of employers having a legal duty to set up counselling and support services quoad matters arising outwith the workplace such as matrimonial or financial problems, serious illness or bereavement. Similarly, employers would not normally come under a duty to supplement the provision of medical or social care by the NHS or other agencies. A case like the present was, however, quite different where the duty alleged against the defenders was narrowly confined to (i) the employer/employee relationship; (ii)  traumatic incidents in the workplace from which psychiatric consequences had been foreseen and provided for; and (iii) the immediate aftermath of such incidents. In Rothwell, by contrast, the elements of immediacy and foreseeability were not present, and the policy restriction regarding fear of physical disease should be seen in that limited context.

Discussion
[15] Without implying any disrespect for the full and careful arguments which were presented on both sides of the Bar, I consider that this matter can be disposed of quite shortly. The only issue for determination is whether, applying the well-known test in Jamieson, the pursuer's averments may be held relevant to go to inquiry. Can it confidently be said that, even on proof of all of these averments, the claim must still necessarily fail? In my judgment that question must be answered in the negative.

[16] Clearly this is not a case involving "secondary" exposure to trauma, and so the special Alcock restrictions on recovery for psychiatric harm may for present purposes be left out of account. As regards the pursuer's attempt to bring himself within the ambit of the Page doctrine, I am inclined to regard his averments as being, at best, of doubtful relevancy for that purpose. The House of Lords in both Frost and Rothwell have sought to limit Page to its own particular facts and circumstances and, even if there still remained some latitude for extension, it would in my view be hard to assimilate non-negligent trauma with a specific accident for which a defender was legally liable and from which physical, as well as mental, consequences might ordinarily be foreseen.

[17] As it seems to me, the pursuer is on much stronger ground in laying claim to the benefit of Hatton and subsequent cases concerned with occupational stress. In that context, fewer policy restrictions apply; in Rothwell, Lord Hoffmann made it clear that the Hatton guidelines covered not merely exposure to undue stress at work, but also other breaches of duty by an employer; and as the decisions in Melville and McClurg illustrate, the guidelines have already been applied to an employer's failure to implement existing counselling and support measures in the aftermath of traumatic incidents in the workplace. Even acknowledging that a legal duty of care does not necessarily arise just because voluntary measures have already been taken, there is in my view little difference between, on the one hand, negligently exposing an individual to occupational stress and, on the other, negligently failing to implement measures by which stress in the workplace might be alleviated.

[18] Looking to the well-known tripartite test for delictual liability, it seems to me that the element of proximity is likely to exist as between employer and employee in the workplace. Furthermore, the "fair, just and reasonable" requirement may not be too difficult to satisfy where (as here) the complaint is that, following trauma at work, the employer has failed to implement a counselling and support system which was already in place. In my opinion, however, these are essentially matters of fact and degree which cannot finally be resolved until after proof. As I understood counsel to agree, the issue arising most sharply at this stage is that of foreseeability, and in particular the question whether the pursuer's averments in that connection go far enough to entitle him to a proof before answer.

[19] In my judgment the averments of foreseeability in this case do go far enough for that purpose. More accurately, perhaps, I am unable to accept that as a matter of relevancy they do not. In this context I have in mind the extensive averments regarding the nature and purpose of the care and counselling systems which have apparently existed within the prison service south of the border since 1991; the parallel averments regarding the counselling and support system which, from 1994, was in place at the prison where the pursuer worked; the terms of the relevant booklet which to my mind plainly envisaged reactive mental health problems of varying severity following traumatic incidents at work; Mr Lamont's averred concession that immediate counselling and other assistance should have been made available to the pursuer; and the multiple broad averments as to what, in all the circumstances, SPS knew or ought to have known.

[20] At pages 12 and 13, for example, the pursuer offers to prove that

"SPS knew or ought to have known that an employee who was concerned that he had swallowed blood which was infected with Hepatitis B, Hepatitis C or HIV might develop a mental illness, such as a Moderate Depressive State. ... SPS knew or ought to have known that providing early counselling, such as that provided by the (prison) Care Team, would reduce the risk of such an employee developing a mental illness, and in the case of an employee who developed a mental illness, might reduce the seriousness or duration of such an illness".

Similar averments of known generic susceptibility appear later in the pursuer's pleadings at pages 36 to 40, and in the whole circumstances I am satisfied that there is enough on Record to justify a proof before answer on the foreseeability issue even though, in that context, the pursuer alleges no special susceptibility on his own part as an individual.

[21] To my mind the recent decision of the House of Lords in Rothwell, bearing to impose a policy restriction on recovery for psychiatric injury brought about by fear of contracting a physical disease in the future, may be distinguished for present purposes. That was a case in which, several decades previously, the plaintiff Mr Grieves was negligently exposed to asbestos in the course of his work. This gave rise to a foreseeable risk of physical consequences, namely asbestos-related disease, but the critical issue for decision was whether he could recover damages for supervening psychiatric illness which could not at the outset have been foreseen. That psychiatric illness developed after x-ray examination revealed symptomless pleural plaques, and was specifically brought on by the plaintiff's enhanced fear of contracting mesothelioma or other asbestos-related disease. In confirming rejection of the claim, the House of Lords founded on (i) the significant lapse of time between the initial exposure and the plaintiff's mental illness; (ii) the lack of foreseeability of psychiatric consequences at the time when the negligent exposure occurred; and (iii) the fact that it was physical disease, and nothing less, that could bring the defendants' prospective liability into play. Creating a risk of disease did not, of itself, sound in damages, and by the same token the plaintiff's fear of disease could not do so either. In my judgment none of these features is present in this case. Here, the immediacy of consequences is strongly emphasised; the averments of foreseeability of psychiatric illness are in my view relevant for inquiry; and it is in that specific context that the defenders' negligence is alleged to have arisen. Against that background, senior counsel for the pursuer was to my mind well-founded in submitting that the policy restriction affirmed in Rothwell should be understood as directed to the particular circumstances of Mr Grieves' claim, and not as representing any form of universal rule. Significantly, in the present case, there is no comparable tension between the pursuer's psychiatric illness and the very risk which is said to underpin the defenders' alleged duty of care.

[22] So far as any alleged "floodgates" risk is concerned, I am not persuaded that the pursuer should be denied a proof before answer on that account. His claim is firmly limited to the employer/employee relationship, to the immediate aftermath of a traumatic incident at work, and to the defenders' alleged failure to implement their own purpose-designed counselling and support system. The fact that difficult questions may well arise in other circumstances is to my mind of little more than academic interest if, as I believe, the pursuer's case as currently averred is relevant to go to inquiry. Equally, I am not much impressed with the defenders' contention that a finding of liability here might discourage others from providing counselling services to their employees in the future.

[23] Of potentially greater concern, perhaps, are the difficulties which the pursuer seems likely to encounter at proof, notably (i) those arising from his own averred knowledge, from an early stage, that counselling ought to have been made available; (ii) those arising from the NHS care which he in fact received from 4 August 1997 onwards; and (iii) the obvious uncertainties as to what counselling would actually have been provided, and whether it would have done the pursuer any good. At the stage of relevancy, however, I have to proceed on the basis of what the pursuer offers to prove, namely that he was never aware of the existence of a care team at the prison; that he was never put in touch with any of its members; that he would have accepted any counselling and support that was on offer; and that if such counselling and support had been provided his mental illness would have been avoided or reduced in severity.

Disposal

[24] For all of these reasons I consider that the defenders' attack on the relevancy of the pursuer's claim fails, and that a proof before answer must now be allowed.