MISS PHYLLIS JANE MACKAY v. SCOTTISH AND SOUTHERN ENERGY PLC [2000] ScotSC 3 (13th March, 2000)

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The Sheriff, having resumed consideration of the cause, Finds that the pursuer's averments are irrelevant and lacking in specification; therefore sustains the third plea-in-law for the defenders; Dismisses the action; Finds the pursuer liable to the defenders in the expenses of the action; Appoints an account thereof to be given in and remits the same when lodged, to the Auditor of Court to tax and to report; further certifies that the debate was suitable for the employment of Counsel.

This case came before me for Debate on the defenders' preliminary pleas. Initially, the defenders sought to argue their first, second, third, seventh, eighth, ninth and tenth pleas-in-law. However, in the course of the Debate it was indicated on their behalf that they were no longer insisting in their second and seventh pleas-in-law.

The pursuer appeared on her own behalf. Mr MacKinnon appeared on behalf of the defenders. In summary, the pursuer's case is that she was employed by the defender's predecessors, Scottish Hydro-Electric, as an Administration Officer. The pursuer says that she had certain concerns about how she was treated by people with whom she had to work. Things came to a head in about November 1992. She wished to pursue her concerns by means of internal grievance procedures. She was not satisfied with the way in which her concerns were being addressed and on 3^rd May 1993 her employment was terminated. She had written to Scottish Hydro-Electric by letter of 4^th May stating that she considered that her employment had been terminated due to their alleged treatment of her.

It was a matter of agreement that Scottish Hydro-Electric and the defenders were in effect the same parties. I shall therefore refer to Scottish Hydro-Electric Scottish Hydro-Electric as "the defenders" hereafter for convenience.

Against this factual background, the pursuer averred that she had consulted her G.P. in February 1993. She had developed physical and emotional symptoms. These were diagnosed by her G.P. as being an acute anxiety state. As a result, she had been signed off work at that point for about three weeks. At the top of page 10 of the Amended Closed Record the pursuer averred that the "harmful events first occurred in November 1992 and were cumulative thereafter". The action was commenced on 24^th September 1998. This was not disputed.

The first argument advanced on behalf of the defenders was that the action was time barred in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"). This was reflected in their first plea-in-law. It was submitted that on the pursuer's own averments, the injuries said to have been sustained by her were sustained more than three years prior to the raising of the action. Even if this was a case where there was said to have been a continuing wrong, her employment terminated in May 1993. That was still over three years before the action was raised. In Article 5 of Condescendence it appeared that the pursuer was seeking to invoke section 17(2)(b) of the 1973 Act. It was, however, submitted that she had failed properly to aver her way into the section: c.f. McArthur v Strathclyde Regional Council 1995 SLT 1129 at 1134 letters A/E. The pursuer had not used the formula "sufficiently serious" but, if that was what she was in effect saying in Article 5 of Condescendence, then that would not be consistent with other averments and actions on her part. In Article 5 she had averred that she could not reasonably have possessed knowledge of her post-traumatic stress disorder before late 1996. She had only discovered this in November 1996 after consulting a clinical psychologist. She had had no previous experience of a psychological injury and did not recognise her changes as a psychological symptom being attributable to her working conditions. She had recognised her physical and emotional stress-related symptoms but these had then been absent for three years. Mr MacKinnon submitted that the question was whether a reasonable claimant would consider that the facts known or ascertainable would have made an action worthwhile: Walker, Prescription and Limitation of Actions (5^th Edition) at page 103; Ferla v Secretary of State for Scotland 1995 SLT 662. The test was therefore an objective one. In the present case, in connection with the time bar argument, the pursuer had averred that she was signed off sick for three weeks in February 1993. This was plainly "sufficiently serious" to warrant the raising of proceedings. She had also herself founded on this in her evidence in proceedings for defamation in 1996 and 1997. She had been seeking an award of damages against the defenders in those proceedings saying that she had been suffering from depression as a result of defamatory remarks made about her by former colleagues and in connection with the way in which her complaints had been addressed. I was referred to a passage in an extract from the evidence of the pursuer in that case which formed part of the productions for the pursuer in the present case. She had referred there to a medical report dated 18 November 1996 by Mrs P.J.Watson. Mr MacKinnon submitted that any contention that the pursuer was not aware that the injuries were sufficiently serious until late 1996 did not sit comfortably with the fact that those earlier proceedings, in which she had also sought an award of damages, had been commenced in 1995. Mr MacKinnon also pointed out that in the present case it appeared that the pursuer was seeking damages in respect of the "harmful events" from November 1992 onwards which averred to be cumulative from that date. He submitted that averments of an anxiety state, although falling short of a recognised psychiatric illness, would still be comprehended within the definition of "personal injuries" for the purposes of section 17 of the 1973 Act: Fleming v Strathclyde Regional Council 1992 SLT 161 at page 163, letters D to E. It was also evident from what she had averred at page 4 that she had been aware that whatever she had had at that stage was attributable to the defenders. He therefore invited me to hold that the action was time-barred on the basis of her illness in February 1993

The pursuer addressed me in response in relation to the question of time-bar. She submitted that at the time of the defamation action, which had been raised in February 1993, she had not known that she had been suffering from any recognised psychiatric illness. All she had known about at that point had been the three week period of severe anxiety. This had then gone into abeyance. Her GP had taken the view that she had been fit to return to work after three weeks. She had not been warned that if she did not get better there might be a recurrence of her anxiety and that she should go back to see him. It had therefore not occurred to her to go back to see him. She had not thought that it would have had lasting consequences. This was not the same as a recognised psychiatric illness: Rorrison v West Lothian College and Lothian Regional Council, 1999 RepLR 102. It was also not the same as the post traumatic stress disorder which was diagnosed in late 1996. She had given an explanation of those symptoms at pages 8 to 11 of the Record. There were six stages. This had included a period of denial.

The pursuer confirmed that she was seeking to rely on section 17(2)(b)(i) and (ii) of the 1973 Act. Her psychiatric condition had not been diagnosed until November 1996, as she had averred. At pages 21 and 22 she was in effect saying that it was only then that she became aware that her condition was sufficiently serious to justify the bringing of an action and that her symptoms and her condition were attributable to her former working conditions. In relation to Ferla, supra the pursuer pointed out that the pursuer in that case had there been off work for three months. However, the court there had exercised its discretion in favour of the pursuer by granting relief under section 19A as he had not been at fault in relation to the delay. She also pointed out that that had been a case in which the matter had been dealt with by means of a preliminary proof on the question of time-bar. I was also referred to Shaw v Renton 1977 SLT 60. The pursuer drew my attention to the fact that in that case the Lord Ordinary had allowed a proof before answer on the whole averments, as opposed only to a preliminary proof on the question of time-bar. This had been on the view that in that case, which was a case involving a progressive disease, "there would be a great deal of the evidence relating to the merits of the case", and in particular medical evidence and evidence of working conditions, which would be relevant to the question of time-bar. She suggested that her case was in a similar position. I was therefore invited to allow a proof before answer on the pursuer's whole averments.

In my opinion, the issue of whether the condition suffered by the pursuer was "sufficiently serious" as contended for by the defenders is not one which can be resolved at this stage. It is a question of fact which is disputed. Had the action otherwise been a relevant one for enquiry, I would therefore have allowed a preliminary proof on the issue of time-bar. I am satisfied that although the pursuer has not used the specific words "sufficiently serious", that was what she was in effect saying at pages 21 and 22 of the Record. I would not have allowed a proof before answer on the whole averments as I was not satisfied that this would have been a case similar to Shaw v Renton, supra in which there would have been "a great deal of the evidence relating to the merits of the case" which would have been relevant to the question of time-bar. On the contrary, if a proof before answer were to have been allowed on the whole case, there would have been a substantial amount of evidence about, for example, detailed working conditions and procedures which would have had no relevance whatsoever to the time-bar question.

Under reference to the tenth plea-in-law for the defenders, Mr MacKinnon next criticised the pursuer's averments in Article 5 of Condescendence seeking that in any event the Court should exercise its discretion to allow the action to proceed under section 19A of the 1973 Act. He submitted that it was for a pursuer seeking an extension of time to satisfy the Court that in the circumstances it was equitable to allow the extension. The pursuer therefore required to aver facts and circumstances; the reasons for the delay had to be explained: Walker, supra at page 111. No explanation at all was averred. The pursuer's state of knowledge of her injuries was also relevant: Walker at page 113. It was known that the pursuer had considered her condition for the three weeks in February 1993 worthy of litigation because she had referred to that in the defamation proceedings which had been commenced prior to late 1996. The pursuer had not adequately averred matters in this case to enable the Court, in balancing the equities, to take the view that the action should proceed. She did not aver why it would be equitable for the defenders to be faced with further proceedings which would involve the employment of staff and the expenditure of managerial time to come to court. She was now trying to re-open the matter in the context of this action. There was no satisfactory explanation as to why matters had not been pursued before now. She was seeking two bites at the cherry without any proper explanation. Against the background of the associated defamation action, it would be inappropriate to exercise discretion in favour of the pursuer without some explanation as to why the present proceedings had not been raised earlier, particularly in circumstances where she had had the benefit of legal advice in those associated proceedings.

In relation to the question of prejudice to the defenders, it was submitted that it was trite that the memory of witnesses faded over time. I was told that the evidence of two essential witnesses in this case was considered to be particularly susceptible to the passage of time, namely Dr James Martin and Mr Ian McMillan.

In connection with the question of the approach to be taken in considering the exercise of discretion in such matters, I was referred to Forsyth v A F Stoddart & Co Ltd 1985 SLT 51, Elliot v J & C Finney 1989 SLT 208 and Beaton v Strathclyde Buses 1993 SLT 931. On the basis of Elliot at page 211 at letters C/D, regard could be had to the fact of the associated defamation proceedings as a factor to be weighed against the pursuer in this case. Beaton was an example of a case in which no explanation had been given for delays. Accordingly, in balancing all the factors, I was invited not to exercise the court's discretion under section 19A and to sustain the tenth plea-in-law for the defenders by dismissing the action.

Mr MacKinnon also submitted that as a matter of relevancy the pursuer had not adequately averred matters from which it would be open to the court to conclude that it would be equitable to over-ride the time bar, all the more so where it was incumbent on the pursuer to explain why matters sought to be founded on in this case were not pursued at latest by the time of the defamation action.

In relation to section 19A, the pursuer submitted, under reference to Brogan's Curator Bonis v Graham 1992 SCLR 920, that the time-bar provisions should be seen in terms of protecting defenders against claims of which they had had no notice because of difficulties in investigating. She submitted that in the present case the defenders' would be at no disadvantage in investigating because they had the evidence collected in relation to the defamation proceedings, the Appeal in which had only just been determined. So far as the memories of Dr Martin and Mr McMillan were concerned, the pursuer told me that they were both members of the Board of Directors of one of the largest public limited companies. She suggested that they were no more disadvantaged than anyone else.

Had the action otherwise been a relevant one, I would have allowed a preliminary proof to cover this matter also. The pursuer's position was that she had not raised proceedings at an earlier stage due to the lack of knowledge of her condition until late 1996. Evidence in relation to that would have been relevant to both section 17(2)(b) and section 19A. The pursuer had in my opinion averred just sufficient to justify a preliminary proof on this issue also.

I was next invited to sustain the ninth plea-in-law for the defenders. This was a plea to the effect that the present proceedings were incompetent as the pursuer was in the present case seeking an award of damages in respect of alleged injuries arising out of the same set of facts as were founded upon in the defamation action. I was referred to page 4 of the Amended Closed Record at page 4 in relation to the averment of a verbal intimation having been given to the pursuer on 23^rd February 1993. In the defamation proceedings her position had been that the remarks in question had caused her to suffer psychological symptoms. She had described her claim as being for depression. She had sought damages of �100,000. In the present case also she appeared to be claiming damages for loss, injury and damage, including depression. I was referred to Walker, Civil Remedies at page 393. Under the heading "Requisites of an award of damages" the author had there stated: "...a further action to recover damages for the same wrong is incompetent, even for a loss emerging subsequent to the first action." The authority cited for that proposition was Stevenson v Pontifex and Wood (1887) 15R 125. Mr MacKinnon submitted that the very fact that she had made the averment concerned in the previous action was enough, irrespective of the outcome. It had arisen out of the same facts. He did however acknowledge that the pleadings in the present case were "considerably embellished" compared with the pleadings in the defamation action as regards the grounds of fault.

In my opinion, the defender's argument in relation to this matter is misconceived. The pursuer is not in my view seeking in this case to recover damages for the same legal wrong. The legal basis of the present case is a different one, albeit that there is some factual overlap. I would therefore have repelled the ninth plea-in-law for the defenders.

The eighth plea-in-law for the defenders was a plea of res judicata. This argument was advanced in relation to averments made by the pursuer, first, at page 4 of the Amended Closed Record about the verbal intimation on 23^rd February 1993 and, second, at the bottom of page 7 from the words: "The Pursuer raised..." to two thirds of the way down page 8 ending with the words: "...the pursuer's grievance." I was referred to Hutchison v Provost, Magistrates and Councillors of the Burgh of Innerleithan 1933 SLT 52. In that case the Lord Ordinary had held that as the question of the legality of a poinding had already been decided, that question ought not to be included in the issue to go before the jury. There remained only one question which fell to be included in the issue. That case was therefore founded on as an example of a case where something decided upon previously had been deleted, albeit that that case had involved deletions from an issue. He therefore suggested that the averments pointed to in the present case could be deleted because they had formed part of the earlier action which had been decided. I was also referred to McPhail, Sheriff Court Practice (2^nd Edition) at paragraphs 2.104 to 2.109. Mr MacKinnon submitted that Hutchison indicated that it could be dealt with as a preliminary plea. He submitted that the conditions referred to in McPhail were met. This included the conditions that the subject-matter of the two actions required to be the same and that the points in controversy between the parties in both actions required to be the same.

In relation to the plea of res judicata, the pursuer submitted that the submissions for the defenders were not well founded. The character and grounds of the defamation action had not been the same as that in the present case: Clink v Speyside Distillery Co Ltd 1995 SLT 1344; Margrie Holdings Ltd v City of Edinburgh District Council 1994 SLT 971.

In my opinion, the argument advanced on behalf of the defenders was not a sound one. In Hutchison the Lord Ordinary (Lord Mackay) said, at page 56: "...(Counsel for the pursuer) asked me to sustain the plea merely to the limited effect of precluding the defender from denying that the debt had been paid on 9^th May - that is, to shut out a single statement of fact alone. In that form I regard the plea as imperfect, because res judicata must go to the whole subject of the judgment and is not available to any one fact selected from many in proof". In the event, the plea in that case was amended to hold that the question of the validity of a poinding had been finally decided for all time and that it could not be re-opened. The plea in the present case remains in general form only, similar to the unamended plea in Hutchison which was held to be inappropriate. I do not in any event regard the present case as being on all fours with Hutchison. The points in controversy are not the same. I would therefore also have repelled the eighth plea-in-law for the defenders.

The most substantial submissions for the defenders were under reference to their third plea-in-law to the effect that the action was irrelevant and lacking in specification. Mr MacKinnon's principal submission was to the effect that there were no relevant averments of duty or breach of duty on the part of the defenders. If that was so, the averments of fact prefacing them should also be held to be irrelevant and the action should be dismissed.

His initial submission was that it was not possible to tell with clarity whether the pursuer was contending that there were a number of co-ordinating breaches of duty which coalesced to result in the one alleged wrong, or whether, by contrast, there were separate breaches of duty by one or more of a number of parties resulting in separate losses.

It was submitted that in relation to each of what appeared to be five strands of the pursuer's case she had failed to aver when named individuals should have carried out particular tasks, why they should have done so and the means by which there was foreseeability of psychiatric harm. For example, at page 15 there was no specification at all of "individual actions and/or omissions". The question therefore was from where each alleged duty was said to arise, when it is said to have been breached and in what respect or respects. There was also a complaint about the vague nature of factual averments, such as an averment towards the bottom of page 3 to the effect that Dr Martin had "persistently frustrated attempts by the pursuer to have her grievance addressed". The defenders were entitled to notice of what Dr Martin was said to have done and when.

A more fundamental point was that, to be successful, the pursuer would require to establish that a recognised form of psychiatric illness, as opposed to mere depression or anxiety, was reasonably foreseeable. She would have to aver and prove that it was reasonably foreseeable to the defenders, and their named employees, that psychiatric injury would occur in the future if they acted in a particular way. Otherwise, there would be no liability: White v Chief Constable of South Yorkshire [1999] 1 All ER 1; Rorrison v West Lothian College 1999 RepLR 102. He pointed out that one of the oddities of the pursuer's position was that in 1993 she did not herself know that she had a psychiatric illness. Yet she sought to fix the defenders with liability for a supposed failure on their part in 1993 to act in particular ways. She had not offered to prove, and had no basis upon which to offer to prove, that the defenders and their named staff knew or ought to have known that the manifestation of symptoms was such that there was a likelihood of her developing a psychiatric condition, such as post traumatic stress disorder, in the event of a failure by them, or their staff, to do the things desiderated by the pursuer.

Mr MacKinnon pointed out that the pursuer was in effect trying to have it both ways. On the one hand, she was saying that she was in the same position as the plaintiff in Walker, supra. It thus appeared that she was trying to equiparate the period of her ill-health in 1993 with Mr Walker's mental breakdown on the first occasion which it was held ought to have alerted his employers to the risk of a further such mental breakdown if he was again exposed to the same workload. On the other hand, she was also saying, as part of her argument on time bar, that her position in 1993 was not "sufficiently serious" because she did not herself know until 1996 that she had or was going to develop a psychiatric illness as opposed to anything such as anxiety. If she did not know, how were the defenders or their staff to have known back in 1993?

In this connection, Mr MacKinnon referred to a passage from the opinion of Lord Reed in Rorrison, supra at page 105 where he said:

It was submitted that Lord Reed had in this passage pointed up the need for a pursuer to establish foreseeability of the development of a psychiatric disorder, as opposed to other lesser conditions of the nature mentioned by him. Mr MacKinnon submitted that that was the "core problem" for the pursuer in the present case. It went to the heart of all strands of the pursuer's case against the defenders and their named employees. Unless she could establish this, her case could not get off the ground.

It was also submitted that this case was not presented as stress at work case. It appeared to be related to the carrying out of procedures to deal with a grievance. I was referred to Walker v Northumberland County Council 1995 IRLR 35. That was a case in which an employee had suffered psychiatric problems on two separate occasions. The High Court in that case held that the employers had no liability in relation to the first occasion. This was because, before the first occasion, it was not reasonably foreseeable that the workload to which the plaintiff in that case was exposed would give rise to a material risk of mental illness. However, when the plaintiff returned to work after his first breakdown, it was reasonably foreseeable that there was a real risk of repetition of his illness if he was again exposed to the same workload.

Mr MacKinnon also submitted that the case was not pled as a safe system type of case: Walker, Delict (second edition) at pages 553 and 554. He submitted that it was incumbent on the pursuer to give fair notice of the basis upon which any alleged duty of care was said to arise. She had failed to do that. It was customary to start with a general duty and then to particularise the individual duties said to fall under that general head. A pursuer then stands or falls on his or her establishing the averments of the specific breach or breaches: Morrison's Associated Companies Ltd v James Rome and Sons Ltd 1964 SC 160. Because of her failure to give fair notice of the basis for the duties desiderated, her case was irrelevant.

In relation to what appeared to be the first aspect of fault averred, which appeared to be related to procedures and policies (at pages 15 and 16), Mr MacKinnon submitted that the averments in relation to the 1974 Act were irrelevant as the provisions of the Act do not infer any civil liability in relation to any breach of its provisions. Also at page 15, there was an irrelevant averment that it was "clear law that an abuse of power or negligence by an employer has the potential to cause physical and mental injuries to an employee". This was wholly lacking in precision and was in any event far too highly pled without any basis. Likewise, at page 15 there was reference to "many precedents". What were these and how did these relate to any alleged duties of care? Towards the bottom of page 15 the pursuer also averred that it was the defenders' duty to provide a system of "recognised policies, procedures and recognised practices". However, she gave no fair notice to the defenders of what she had in mind. She did not aver what should have been done, by whom, when or in terms of which of the procedures and policies. Neither were there any averments indicating why the defenders had an obligation to provide such a system. There was likewise no basis for the averments at page 16, lines 3 to 6. The pursuer had not indicated what procedures she was referring to, what the relevant time-scales were, on whom it had been incumbent to do something or upon what basis. She had also not explained how there had come to be any foreseeability of psychiatric harm in the event of a failure by the defenders, or any of their staff, to carry out whatever procedures and policies she had in mind within an unspecified time-scale. Calls had been made upon the pursuer in Answer 3 but these had not been answered. The first limb of the pursuer's case was therefore irrelevant.

In relation to what appeared to be the second distinct matter founded upon by the pursuer on Record, this related to an alleged agreement which was said, towards the foot of page 17, not to have been implemented. Mr MacKinnon pointed out that the pursuer had averred that the defenders "ought to have foreseen" that their failure to implement a remedy would cause the pursuer ultimately to develop her chronic condition. There were various averments, such as those at the bottom of page 4, to the effect that the pursuer had developed an acute anxiety state. However, there was no basis averred as to how or why the defenders, or the other named individuals at the foot of page 17, ought to have foreseen any risk of psychiatric harm to the pursuer, and just what duties they had and why. This second limb was therefore also irrelevant.

Mr MacKinnon further submitted that it was not clear whether there was then a third, independent, ground of action at the top of page 18 as to what named individuals did or did not do. There were no averments as to what duties were said to be incumbent on these individuals, or the defenders in respect of them, or why any duties were incumbent on them. For example, there were again no averments going to the question of foreseeability. If this was a matter upon which the pursuer was seeking to fix the defenders with liability, they were entitled to notice of what any alleged duty of care was and from where it arose.

In the fourth place, at page 16 line 6 the pursuer averred that the defenders had persistently refused to acknowledge the injury said to have been caused to the pursuer's health. Mr MacKinnon submitted that it was not evident whether this was an independent ground of action. Again, no associated duties were averred and it was not evident what the pursuer was saying the defenders ought to have done. Nor was the issue of foreseeability addressed.

In the fifth place, at page 16 the pursuer averred that the defenders had a duty inter alia of assessment and monitoring. Mr MacKinnon submitted that there was however no indication of why any such duties were incumbent on the defenders, how they were breached, when they were breached or by whom. The question of the foreseeability of psychiatric harm as a result of any failure to carry out such duties was again not addressed. For example, there were no averments to the effect that there had been previous occasions upon which the absence of such things as monitoring had lead to an employee such as the pursuer developing psychiatric symptoms of the nature now complained of. Neither does she say that it would have been obvious to any reasonable employer that a failure to do such things would have been likely to lead to psychiatric harm of the nature now complained of, or that it was normal practice for employers to do so. In any event, she does not say what precisely the defenders ought to have done. Averments such as "competent assessment and monitoring" were very general. It was not evident what was meant. The references to the 1992 Regulations were also irrelevant. This is because the provisions of the Regulations do not infer any civil liability in relation to any breach of the Regulations.

In relation to the question of the relevancy and specification of the pleadings, the pursuer submitted that her averments in relation to both her common law and statutory cases were sufficiently specific to give the defenders fair notice of what her position was and of how she intended to proceed. She suggested that the pleadings on behalf of the pursuer in Rae v Strathclyde Joint Police Board, 9 March 1999, Lord Bonomy (unreported) were similar to her own. In that case the Lord Ordinary had held that the pursuer had averred sufficient in relation to both her common law and her statutory cases to give the defenders fair notice of her position. He had been of the view that certain difficulties would be difficulties of proof. He had allowed a proof before answer. The pursuer told me that in the present case her position was that the defenders had a safe system of work in that they had procedures and recognised practices in place for dealing with grievances and disputes, but that the problem was that the defenders did not apply or operate that system correctly. In relation to the 1974 Act and the 1992 Regulations, the pursuer accepted that there was no civil liability arising. However, she told me that they were evidence of a comparable standard of care. The lowest acceptable standard was that referred to in the legislation and in the Regulations. In this connection, she referred me to Stewart, Delict (third edition) at paragraph 7.42. In that paragraph, the author had indicated that there were Approved Codes of Practice which might be founded upon in criminal proceedings, that these were not excluded from civil proceedings and that they might be expected to be of considerable evidential value. However, she told me that she was not aware of any authority to this effect in relation to the 1974 Act and the 1992 Regulations. I also have to observe that the pursuer's submissions on this issue did not seem to me to coincide with her own averments, in terms of which she specifically avers at pages 15 and 16 that the defenders had various duties under the Act and the Regulations. It is quite clear however that no right of action arises in relation to breach of any duties arising under either the Act or the Regulations: section 47 of the 1974 Act and regulation 15 of the 1992 Regulations. Mr MacKinnon responded by submitting that a common law duty could not be derived from the wording of a statutory provision. A statutory provision could not be used as evidence: cf Cavin v Kinnaird 1994 SLT 111 at page 113; Mitchell v Campbeltown Shipyard Ltd 1998 GWD 12-616. In Mitchell Lord Osborne held that the standard set by regulation 3 of the Management of Health and Safety at Work Regulations 1992 could not constitute a criterion by which common law fault might be judged. In my opinion, the submissions made on behalf of the defenders on this issue are correct. I therefore do not accept that the pursuer's averments about the 1974 Act and the 1992 Regulations are relevant.

In relation to the defenders complaints as to lack of notice as to what each named employee had done and when, the pursuer submitted that these were matters to be dealt with in evidence.

The pursuer then referred me to Walker, Delict (second edition) at page 554 where mention was made of the general duty of reasonable care incumbent on an employer. She submitted that in relation to all the named employees she had pulled together all of the strands of their individual acts under this general duty. There were not separate heads of liability. The question of what rôle each had had in relation to such things as failing to implement the procedures was a matter then for evidence. She submitted that she could in any event indicate what each one had done or failed to do. She accepted, however, that in relation to most of what she did tell me verbally were her complaints about Miss McClure, Mr Jebson, Mr Alan Scott, Mr Ian McMillan and Dr James Martin, this was not averred on Record.

The pursuer next submitted that, in her case, there had been a series of acts on the part of her employers which had been cumulative and had led to her constructive dismissal. She maintained that her position was similar to that in Lewis v Motorworld Garages [1985] IRLR 465. She was not therefore saying that there were separate breaches of duty resulting in separate losses. I observe however that this was a case of alleged breach of contract. It seemed to me that it was of no real assistance. It was also far removed from the core problem in the present case, namely the question of the foreseeability of psychiatric harm.

From the point of view of foreseeability, the pursuer accepted that this was not a case in which she had averred that other employees had suffered from a condition similar to her own. She maintained that she had at page 16 called upon the defenders to produce all their records of all assessments, reports and the like of stress-related complaints. They had not responded to this call. In my opinion, the defenders were under no obligation to answer this call, which was in any event related to irrelevant averments concerning the 1992 Regulations. It is for a pursuer to make out a relevant case against a defender.

The pursuer sought to contrast her position to that of the plaintiff in Petch v Customs and Excise Commissioners [1993] ICR 789. In the present case, she told me that her position was that she had gone to the Director of Personnel who was the appropriate person to go to for help. She submitted that in Petch the employers had been praised for the efforts made to persuade their employee to take sick leave. She told me that the opposite had occurred in the present case. When she had complained that the delay in dealing with her grievance was causing her to be ill, she had been advised against taking sick leave. Reference was also made to a passage from WA Gould v McConnell [1958] IRLR 516 in connection with the question of grievance procedures. However, unlike the present case, that was a case concerned with an implied term of a contract. In my view, it is therefore of no assistance in the present case.

I was also referred to Walker v Northumberland County Council, supra. The pursuer suggested that the position of the plaintiff in that case mirrored her own position. After his return to work, an agreed remedy had been put in place. It appeared that the pursuer was seeking to suggest that the three week period of acute anxiety from which she suffered in February 1993 was similar in effect to the first mental breakdown from which the plaintiff in Walker had suffered. He had then been off work for about three months. On the basis of Walker, the pursuer suggested that a reasonable employer would in her case have been aware that a person in similar circumstances to her own was more than usually vulnerable and therefore that they ought to have foreseen the risk that she might develop a psychiatric condition such as that which she did develop. In my opinion, however, the pursuer was trying both to have it both ways. On the one hand, in relation to the time-bar plea against her, the pursuer repeatedly emphasised that she had been unaware until November 1996 that she had developed a psychiatric condition. On the other hand, she was seeking to suggest that the defenders should nevertheless have foreseen this in early 1993. However, she was not able to explain (and neither did she aver) how or why the defenders, or any of their named employees, ought to have been able to foresee this. In my opinion, this is fatal to the relevancy of the pursuer's case.

On the question of the proper approach of the court at the stage of relevancy, the pursuer reminded me of the well known passage from the Opinion of Lord Keith of Avonholm in Miller v South of Scotland Electricity Board 1958 S.C. (H.L.) 20 at page 33 as follows:

The pursuer submitted that the present case was a complex matter involving medical evidence. The question of the standard of care in terms of management and the workplace were matters which could properly be investigated at proof. She believed that she had given fair notice of how she intended to proceed.

In my opinion, the pursuer's case is irrelevant and falls to be dismissed. The position is that on Record the pursuer alleges a number of actings and omissions on the part of the defenders, or those for whom they are responsible, prior to her leaving their employment on 3 May 1993. She maintains that she did not herself know that she had a psychiatric condition at that stage or that she would subsequently develop a condition such as post traumatic stress disorder. Indeed, according to her averments in Article 5 of Condescendence, she was not made aware of that until late 1996. That therefore begs the question as to how the defenders, or any of their named employees, ought nevertheless to have been aware of such a risk at the times of their respective actings or omissions prior to her leaving the employment of the defenders. In Rorrison, supra Lord Reed made the point that what is required is that such a disorder be a reasonably foreseeable occurrence by an "ordinary bystander" rather than by a psychiatrist. In this case the pursuer did not suggest, or aver, that there was any basis upon which the defenders, or their named employees, could be judged by other than that same standard. Unless qualified as psychiatrists themselves, it is difficult to see that the position could be otherwise. Lord Reed also held that for it to be reasonably foreseeable by the standard of an ordinary bystander, there had to be a specific reason to foresee it in a particular case. In Walker, supra there was a specific reason because the plaintiff had had an actual mental breakdown, which was itself a psychiatric condition, and he had been off work for three months. In such circumstances it is hardly surprising that when he returned to work after that it was reasonably foreseeable that there was a real risk of repetition of his illness if he was again exposed to the same workload. By contrast, in the present case there were no such circumstances averred which, if proved, could establish that the defenders, or any of their named employees, ought reasonably to have foreseen that the pursuer was at a material risk of sustaining a psychiatric disorder as a consequence of their actings or omissions. I am therefore satisfied that the case falls to be dismissed because there are no relevant averments to support the existence of a duty of care in this case.

Further and in any event, I formed the view that the pursuer's averments were irrelevant through want of specification. I was satisfied that the pursuer had not given the defenders fair notice of the case against them in relation to all of the apparent strands of the case against them. I am conscious of the dicta of Lord Keith of Avonholme in Miller v S.S.E.B. I am also conscious that, in view of the fact that the pursuer is a party litigant, some wider latitude might be appropriate in terms of pleadings. However, I am equally conscious that a defender is entitled to fair notice of the case which they require to meet so that they can then prepare adequately for proof. Otherwise, there is a material risk of prejudice and a material risk that justice will not be done. In the present case, I came to the view without hesitation that the criticisms made by Mr MacKinnon under reference to the defenders third plea-in-law were well founded and that the defenders would be unfairly prejudiced if the pleadings were allowed to go forward to enquiry in their present form. For example, there was no doubt that the defenders were entitled to fair notice of the alleged actings and/or omissions of both defenders themselves and their named employees. They would also be entitled to fair notice of when these were said to have occurred, just who was responsible and why. The lack of relevancy in relation to such matters as the references to the 1972 Act and the 1992 Regulations, coupled with the lack of specification complained of, in my view went to the core of each strand of the pursuer's case. I did not regard the present case as being comparable to Rae v Strathclyde Joint Police Board, supra. In that case, Lord Bonomy was satisfied that although certain of the difficulties in the case would be "difficulties of proof", the pursuer in that case had averred sufficient in relation to both her common law and statutory cases to give fair notice to the defenders. I am not satisfied that the pursuer has done that in the present case. To the contrary, I am entirely satisfied that she has not done so.

I asked the pursuer whether she wished to seek leave to amend but she made it clear that she did not wish to do so. In view of what seems to me to be the insuperable problem presented by the need for her to establish foreseeability of the development of a psychiatric disorder, I can well see why she elected not to do so.

Mr MacKinnon turned next to the question of quantum. This was he said largely pegged to a Schedule annexed to the Record. There were a number of aspects of the Schedule which were unclear. For example, it was not evident what was meant by "Present Capital Value". It appeared that the pursuer was compounding figures without any reason being given for that. This was irrelevant in the absence of any speciality. What she was attempting to do was not transparent or intelligible. The defenders were entitled to fair notice of what the pursuer was attempting to prove. She had not given notice of the assumptions underlying the figures in the Schedule. In the event that I did not dismiss the action as a whole, Mr MacKinnon invited me to delete all of the pursuer's averments on the question of quantum other than relating to the question of solatium in the Schedule.

In relation to the question of quantum, the pursuer told me that she believed that the heads of claim were sufficiently clear to give fair notice and that the defenders had not offered any other method of valuation for her consideration. She believed that the figures given did not place the defenders at any disadvantage because she thought that the figures were in fact lower than they would have been had the Ogden Tables been used. She did not however refer to the Ogden Tables. She said that she had also ignored the effects of inflation.

In relation to the schedule of loss referred to in Article 4 of Condescendence, the pursuer told me that in the first head, the date 1 January 1993 should in fact be 1 January 1994. The method of valuation which she had used to arrive at the figures shown in the Schedule was a method she used as a surveyor. She told me that it would be explained in evidence. It had involved the application of a discount factor to arrive at a capital value under each head. She had used valuation tables entitled "the Parry Tables". They were tables used by the College of Estate Management. It was a way of arriving at multipliers. She could not point to any authority for the use of the Parry Tables. She told me that she assumed that they were the same as the Ogden Tables. However, there was no way of verifying that. They were not produced. By way of example as to what she had done, the pursuer explained that the interest figure was the interest rate allowed by the court. She had then compounded that forward, cumulatively, to 19 September 1998.

In my opinion, the defenders are entitled to fair notice of how the pursuer has arrived at the figures given in all of the heads of claim other than the final one which is a claim for solatium. There is no indication in the pursuer's pleadings of the assumptions used. From what the pursuer told me, it appears that she had, amongst other things, approached the matter, at least to some extent, by calculating interest upon interest. If that is so, that is generally not allowed. Certainly, no justification has been set out in the pleadings for this. Consequently, if I had been allowing a proof before answer, I would have excluded from probation the whole of the Schedule with the exception of the words: "Damages: for physical and psychological injury - �35,303".

In relation to the question of expenses, Mr MacKinnon sought sanction for the employment of counsel for the debate and an award of the expenses of the action in the event of dismissal. The pursuer did not oppose that part of the motion seeking sanction for counsel. However, the pursuer suggested that expenses should be in the cause. In my opinion, in view of the fact that the defenders have been successful in their motion to have the action dismissed, they are entitled to an award of the expenses of the action.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> MISS PHYLLIS JANE MACKAY v. SCOTTISH AND SOUTHERN ENERGY PLC [2000] ScotSC 3 (13th March, 2000) URL: http://www.bailii.org/scot/cases/ScotSC/2000/3.html Cite as: [2000] ScotSC 3

Scottish Sheriff Court Decisions

MISS PHYLLIS JANE MACKAY v. SCOTTISH AND SOUTHERN ENERGY PLC [2000] ScotSC 3 (13th March, 2000)