Scottish Sheriff Court Decisions

1

The pursuer's case against the defenders is that he was subjected to a course of conduct by a fellow employee, Jim Harwood ("Harwood"), and that that course of conduct constituted harassment in terms of the Protection from Harassment Act 1997 (the "1997 Act"), for which the defenders are said to be vicariously liable. The pursuer avers that such harassment caused him to suffer a depressive disorder (or alternatively, an adjustment disorder), and to be unable to work. He sues for the sum of £500,000.

2

The defenders defend the action at virtually every turn, the only point not in contention being that they accept that they are vicariously liable for any harassment which did take place. Beyond that, their position can be summarised as follows. Harwood did not act in the manner alleged. Even if he did act in that manner, his conduct was not harassment. Even if it was harassment, the pursuer has failed to prove that it caused him any loss, injury or damage. Even if he has proved that it caused a psychiatric disorder, it was not foreseeable that any such disorder would be caused by Harwood's conduct, and recovery should be disallowed on grounds of remoteness. Even if the damages sought were not too remote, the sum sued for is excessive.

3

Accordingly, the case not only involves disputed issues of fact but raises the issue of what is meant by harassment, and thereafter raises issues of causation, remoteness and quantum.

4

The case has a lengthy and complicated procedural history. Following a debate in 2007 (see my Interlocutor and Note of 7 August 2007) the proof before answer eventually commenced on 28 April 2008, and was held over fourteen days in total, eventually concluding on 24 June 2009. Mr Kelly, Advocate appeared for the pursuer and Ms Shand, QC for the defenders.

5

Evidence was led over eleven days, between April 2008 and January 2009. The pursuer gave evidence and called the following witnesses: his partner, Melanie Nelson; Dr William Dickson, Consultant Forensic Psychiatrist; Dr Colin Rodger, Consultant Psychiatrist; Kevin Mackenzie and Alan Wilson, both former colleagues of the pursuer.

6

The defenders called the following witnesses: Harwood; David Reid, Aileen Whiteford, David Ibbotson, Alison Stewart, George Taylor, Andrew George and Eric Johnston who are all employees or former employees of the defenders; and Dr Derek Chiswick, Consultant Psychiatrist.

7

Due to the complicated nature of the case and of much of the medical evidence, and the length of time over which it was heard, I ordered transcription of the notes of evidence. These have proved invaluable in preparing this judgment. I also required parties to exchange and to lodge written submissions, which was only partially successful in reducing the length of the hearing on submissions, which lasted three days. However, I found the written submissions extremely useful in focussing the issues.

8

At the outset of the hearing on submissions, the pursuer tendered a Minute of Amendment No 45 of process, the effect of which was to add an esto case to the effect that even if the pursuer had suffered an adjustment disorder as distinct from a depressive disorder, he was nonetheless entitled to be awarded damages. That came to be unopposed by the defenders, and I allowed the pleadings to be amended in terms of that Minute.

9

There is little point in rehearsing the evidence in detail, since a record of it exists in the notes of evidence. However, in this part of my judgment I pass comment on the credibility and reliability of the witnesses and in the course of doing that I touch on some of the evidence and make some general observations on it.

The pursuer

10

The pursuer gave evidence about various incidents which he said occurred during his period of employment with the defenders. He also spoke to the effect these had allegedly had on his state of health. I will refer to his evidence in a little more detail in discussing the incidents, and the medical evidence, below but in the meantime would make some general observations about it. I have found as a fact, based on the medical evidence, that the pursuer has a sensitive personality, needs other people to approve of him and holds unrealistic expectations of how other people should behave towards him. These personality traits undoubtedly colour how he perceives the behaviour of others (and indeed, how he reacts to criticism) and, as will be seen, his interpretation of incidents and of the motivation of others, cannot always be relied upon. The pursuer had some difficulty in giving a coherent account of Harwood's supposed course of conduct towards him, and in recollecting the precise details of at least some of the incidents. This resulted in some instances in his changing his position on points of detail at various junctures in his evidence. That may not be altogether surprising, given the lapse of time between the events in question and the proof. To some extent also, particularly in the early stages of his evidence in chief, the pursuer seemed to be labouring under some genuine difficulty in understanding which incidents he was being asked about. However, irrespective of the precise reasons therefor, the pursuer's occasional vagueness and imperfect recollection in detail must inevitably cast doubt on his reliability. I also consider that there is some merit in the defenders' submission that the pursuer displayed occasional signs of "paranoia", at least in the sense that he held and holds irrational beliefs that certain conduct was targeted at him when on any objective view clearly it was not. An example of this is the e-mail No 5/16 of process[1], which simply does not bear the interpretation put on it by the pursuer. The pursuer was also incredible in relation to parts of his evidence. I am unable to accept, for example, that he could not remember having been referred to a psychologist in 1995, following outbursts of aggression towards his partner, when that is the sort of thing one might reasonably be expected to remember, at least when prompted, and the pursuer's evidence about this issue in cross-examination, commencing at 1/127 of the Notes, was unconvincing. It was also clear from that, and other evidence, that the pursuer had discussed the case with Melanie Nelson, which casts doubt on the reliability of both. The pursuer also had a tendency to change his position on points of detail to suit his case, such as in relation to the clutch incident[2]. I also consider that he exaggerated his current state of debility, as illustrated by the DVDs No 6/25 and 6/27 of process. Also significant was the lack of any evidence about the effect which the various incidents (other than the clipboard incident[3], and the final incident on 2 October 2000[4]) had on him at the time. Overall I was left with the impression that the pursuer had with the benefit of hindsight picked out various incidents concerning himself and Harwood, in some of which Harwood may have acted unreasonably but which incidents did not particularly trouble the pursuer at the time, and which he has re-interpreted at a later date as constituting harassment. I do not say that the pursuer has deliberately fabricated incidents or that he has set out deliberately to mislead the court in giving evidence (with the exception of his evidence about the referral to the psychologist in 1995) but I do consider that his recollection of events, and his perception of them, is unreliable for the reasons stated above. Accordingly I have treated his evidence with caution and have not accepted it in its entirety.

11

The pursuer's evidence about the incident when he was asked to throw material out without telling "management"[5] is also revealing. The pursuer's case on Record was that Harwood had asked him not to tell Colin Christie. However, the pursuer was clear in his evidence that it was John Gibson whom he was asked not to tell, and I have accepted that evidence. The significance of this emerges when considering the evidence of Melanie Nelson, discussed in the next paragraph.

Melanie Nelson

12

Melanie Nelson is the pursuer's long-term partner, the couple having been in a relationship since 1993. She gave evidence about the effect the pursuer's illness had had on him, and of the change she had noticed in him. She also gave evidence corroborative at least to some extent of some of the specific incidents, mainly based on what she had been told by the pursuer at the time but in some instances also confirming the pursuer's state of mind (eg, she confirmed that he had returned home in tears on 2 October 2000).

13

There are various difficulties with Ms Nelson's evidence. The most obvious one is that, as she made no attempt to hide, she and the pursuer have often discussed the case, and she has had full access to all the case papers, including the pleadings and the GP records, before giving evidence. Her detailed evidence of what she had been told by the pursuer is therefore of doubtful reliability and of limited value, at least in relation to the detail of what actually happened. The most blatant example of this was her evidence about the material which the pursuer was told to discard. Although the pursuer said that he had been told not to tell John Gibson, Ms Nelson said that it was Colin Christie whom he'd been told not to tell. That is what is averred but not what the pursuer himself said (see paragraph 11 above). As stated, I have accepted the pursuer's evidence on this matter. It follows that I find that Ms Nelson was prepared to tailor her evidence so that it coincided with what was on Record. If she was prepared to do it in this instance, I infer that she was also prepared similarly to tailor other evidence, and that does materially diminish the weight I can attach to any of her evidence. Next, she has an axe to grind in as much as clearly she feels that the pursuer has suffered from a wrong for which he should be compensated. It was she who made the running with the pursuer's grievance. While I would not go so far as to say that she was lying when she gave evidence about the pursuer's general condition, I do consider that on occasion she was prone to exaggeration, or to downplay certain matters, where to do so suited the pursuer's case. For example, her evidence about the pursuer's interest in motocross was inconsistent with what the pursuer appears to have told Dr Dickson in 2002. It is unlikely that Dr Dickson would have stated in his letter (6/1 of process, p33) that that was a hobby of the pursuer's unless he had been given that information by the pursuer and yet on Ms Nelson's account the pursuer did not develop any interest in motocross until his son was three, in 2003. Similarly, the evidence about the pursuer's diminishing interest in sexual relations has to be tempered by the birth of two children in 2001 and 2006, and the termination of another pregnancy in 2007. One matter which Ms Nelson downplayed was her feelings about the pursuer's tattoos. There was a telling moment in her evidence when she accepted that she "had probably told Dr Chiswick that the tattoos were horrible, because..." then stopped. I formed the clear impression from her demeanour that she had been about to say that she had probably told him that they were horrible because they were horrible, but that she stopped herself just in time. (This passage appears in the Notes at p6/86 - this particular exchange is not reflected verbatim, but my own contemporaneous note, which in this instance I prefer as I recall the evidence in question, records that this was Ms Nelson's reaction to the question as to how she felt about the tattoos.)

14

Where I have particular difficulty in accepting Ms Nelson's evidence is in relation to her assertion that she was unable to recall being assaulted by the pursuer in 1995/6. I found this part of her evidence unconvincing. It is likely that the contemporaneous records are correct and that the pursuer did tell his GP that he was prone to temper tantrums and that his girl friend was frightened of him. Ms Nelson accepted that she was the girl friend referred to. Whether or not Ms Nelson was aware that the pursuer was consulting his GP, it is unlikely that the pursuer would have told his GP that she was frightened of him were that not the case. Ms Nelson's reluctance to admit this in evidence suggests that she did not wish to concede that particular aspects of the pursuer's personality were in evidence long before he went to work for the defenders; which in turn suggests that the change in the pursuer since he stopped working for the pursuers was probably not as marked as Ms Nelson would have us believe. She also said in evidence that she had been assaulted three times by the pursuer since he left the defenders' employment which is significant in that it supports the other evidence that the pursuer's principal complaint is now of anger, and (having regard to the evidence of Dr Chiswick, discussed more fully below) tends to negate any suggestion that he is suffering from a major depressive disorder.

Kevin Mackenzie

15

Mr Mackenzie worked for the defenders at the same time as the pursuer. They had been friends, at least after the pursuer moved to day shift. He spoke to the canteen[6] and PS machine[7] incidents. He also said that he often observed Harwood continually watching what the pursuer was doing. He didn't behave like that towards other employees, although Mr Mackenzie accepted that the pursuer was the only materials handler who worked on the day shift and that Harwood was interested only in materials handlers. He also accepted that he had been dismissed by the defenders and that he had subsequently pursued a claim for unfair dismissal which had been settled. He felt a sense of bitterness towards the defenders. He could not explain why others, whom he said were present in the canteen when Harwood had made his "mummy's boy" remark, had not overheard the conversation, other than by suggesting that they were scared of losing their jobs. He was unaware that the pursuer thought of Harwood as a foolish old man. He accepted that he was not in a position to say whether the pursuer ought to have been attending to other tasks when he was helping with the adhesive spillage.

16

Although I do not consider that he was telling out and out lies, I consider that Mr Mackenzie's admitted sense of bitterness towards the defenders is likely to have coloured his interpretation of events. Accordingly, while I accept that a conversation along the lines of that described did take place in the canteen, I treat with caution his assertion that Harwood treated the pursuer differently from other employees, particularly in light of his concession that the pursuer was the only materials handler with whom Mr Mackenzie observed Harwood interacting, which means that he was in no position to draw any valid comparison.

Alan Wilson

17

Alan Wilson was also an employee of the defenders, at the same time as the pursuer. He gave general evidence about Harwood's treatment of the pursuer, which he said was generally less favourable than the way he treated other employees. I accept him as a generally credible and reliable witness, but his evidence was vague and again must be tempered by the fact that Mr Wilson was not really in a position to comment on what Harwood's duties were, or whether he was entitled to be critical of the pursuer, who again was the only materials handler with whom Mr Wilson observed Harwood interacting.

James Harwood

18

I deal with Harwood's evidence about the incidents complained of by the pursuer in my discussion of each incident, below. In general, however, Harwood sought to justify his treatment of the pursuer by being critical of the pursuer's performance at work. He said that it was extremely important to keep the Madisun system up to date. If not, the defenders would be unaware that product was available for sale and therefore could not sell it. Accordingly, whenever a product was finished or returned, the system had to be updated. The material handlers had to keep a manuscript record of the movements and returns of materials, which then had to be keyed into the computer at the earliest opportunity. That should normally be done during the material handler's shift, the only exceptions being in the case of a change in the work schedule or a machine breakdown. He spoke to an email he had sent on 21 June 2000, No 6/15 of process, in which he had reminded shift supervisors of the need to update the system promptly and not save updates to the end of the shift. The only materials handler whom there was a problem with in that regard was the pursuer. He would save his transaction sheets to the end of the shift, then not have time to carry them out. He clearly still felt that the pursuer did not perform at least certain aspects of his job to a satisfactory standard.

19

I did not find Harwood to be a wholly satisfactory witness. He tended to downplay his obvious dislike of the pursuer and also contradicted himself on several occasions (such as in relation to whether or not he would swear at the pursuer). He gave evidence about the cores incident which was materially different from his (more or less) contemporaneous account in his letter no 6/18 of process. However, it is perhaps not surprising that his grasp of detail should be less than perfect some eight or nine years after the events in question. Crucially, I accept his position that his dislike of the pursuer was borne of his genuinely held belief that the pursuer did not perform aspects of his job satisfactorily. On the pursuer's own evidence, he did not update the Madisun system promptly, and while he sought to justify that by pointing out how busy he was with other tasks, it may be that he did have problems in properly prioritising his work, which the other material handlers did not have, and it is clear that the pursuer does not respond well to criticism. Be that as it may, for present purposes it is sufficient for me to observe that on the material before me, I cannot conclude that the view Harwood held of the pursuer's performance was anything other than justifiably held. I also find that he was entitled to be critical of other employees where their performance impinged upon the movement of stock, and the recording of that on the computer.

The medical evidence

20

I discuss the medical evidence more fully below[8], in the context of causation. At this stage, suffice to say that all the doctors who gave evidence - Dr William Dickson, Dr Colin Rodger and Dr Derek Chiswick - are, or have been, consultant psychiatrists, and all were qualified to give opinion evidence to the court. All were credible, and each did his best to assist the court by proffering opinions which were honestly held. Each had seen the pursuer under different circumstances. Dr Dickson, who is a Consultant Forensic Psychiatrist at Stratheden Hospital, Cupar was first asked to see the pursuer by the pursuer's GP, Dr Thornber, in February 2002 and had met him as an out-patient on several occasions since then, although not since 23 March 2005. He was therefore unable to express any reliable up-to-date opinion as to the pursuer's present condition. He spoke to the terms of various letters written by him, Nos. 5/8 to 5/11, 5/13 and 5/14 of process. Dr Rodger, who is an independent psychiatrist, working in adult and geriatric psychiatry and was previously a consultant psychiatrist, was instructed for the purposes of this litigation on behalf of the pursuer. He saw the pursuer twice for the purpose of preparing reports, and he spoke to the terms of his reports no 5/15 and 5/17 of process. Dr Chiswick, recently retired but previously a consultant psychiatrist, was instructed on behalf of the defenders. He too saw the pursuer twice, in 2004 and 2007, and he spoke to the terms of his report No 5/18 and supplementary report No 5/19 of process, which both related to the former examination. No written report was lodged in process pertaining to the second examination.

21

The complexity of psychiatry and the difficulty of diagnosing a condition in any given case were illustrated by the fact that each of the doctors held a different view as to what condition the pursuer was suffering from. Dr Dickson, who initially thought that the pursuer had a moderate depressive episode in terms of ICD 10 F32.1[9], changed his mind and subsequently diagnosed dysthymia (ICD 10 diagnostic code F34.1). Dr Rodger thought that he had developed a depressive disorder (DSM IV diagnostic code 296.22). Dr Chiswick thought that the pursuer had an adjustment disorder (ICD 10 diagnostic code F43.22), the dominant symptom being mixed anxiety and depressed mood.

22

I discuss the competing views of Drs Rodger and Chiswick more fully below, but at this stage I will dispose of Dr Dickson's evidence as to the nature of the pursuer's condition. Neither party invited me to accept his diagnosis, possibly because he had not seen the pursuer for some years by the time he gave evidence and in any event he never saw the pursuer with a view to preparing an expert report whereas the other two doctors had, and they had consequently considered the matter in more detail. I have to say, too, that I found it difficult at times to discern from Dr Dickson's evidence whether his position still was that the pursuer originally suffered from a depressive disorder, but had suffered from dysthymia before and since; or whether in the light of getting to know the pursuer better, he was departing from his original diagnosis and replacing it with a diagnosis of dysthymia. Dr Dickson was also somewhat dismissive of both the ICD 10 and DSM IV schemes of classification, and in this his evidence was at odds with that of both Dr Rodger and Dr Chiswick. He claimed that only 25% of persons with depressive disorders could be fitted into a classification and preferred to use clinical judgment. Although he accepted that adjustment disorder was a recognised disorder in both schemes, he said that it was a diagnosis which he "didn't use", but would instead diagnose depressive disorder. Dr Chiswick described Dr Dickson's use of the term "reactive depression" in one of his letters as being old-fashioned. Although Dr Rodger and Dr Chiswick disagreed as to the pursuer's condition, both advocated reference to the ICD and DSM schemes of classification, both recognised the condition diagnosed by the other and neither agreed with Dr Dickson's diagnosis of dysthymia. Accordingly, I consider that the battle of experts does come down to a straight choice between Dr Rodger and Dr Chiswick, although Dr Dickson's evidence remains useful as a contemporaneous record of the symptoms experienced by the pursuer up to 2005 and I rely on it to that extent.

Neil Harrington

23

For completeness, I will mention Mr Harrington, who was not a witness but whose reports No 5/6 and 5/7 of process were referred to in evidence by other witnesses. He is a chartered clinical psychologist who saw the pursuer in March 2002 with a view to providing his report. His views were not the subject of cross examination, nor were his experience and qualifications spoken to, and I therefore attach little weight to his conclusions. For what it is worth, however, his conclusion was that the pursuer was suffering from a depressive illness, with associated anxiety and anger problems, his anger being such as to present a clinical problem. This is relevant when considering the competing opinions of Drs Rodger and Chiswick.

24

The other witnesses

Although the evidence of the other witnesses was either of peripheral benefit to the central issues in the case, or of no value because they could not remember events of eight or nine years previously, I generally found the other witnesses to be credible and reliable.

25

I allowed two passages of evidence to be heard under reservation of competency and relevancy, and

now need to reach a decision on the objections.

26

The defenders objected to questions being put to Mr Wilson designed to elicit whether the pursuer and Harwood generally got on well together or not, which resulted in Mr Wilson expressing the view that in general Harwood picked on the pursuer. The objection was that general evidence of this nature was inadmissible, and the pursuer was entitled to lead evidence only of specific incidents. Mr Kelly's rejoinder was that as the averment "Harwood continually complained about minor aspects of the pursuer's work" had been allowed to remain in the Record following the debate, then he was allowed to elicit evidence in support of that averment however general it might be. Ms Shand submitted that the general averment was qualified by the succeeding averments of specific examples, and that only evidence of those specific examples was admissible. In resolving this objection, it is pertinent to have regard to the evidence actually given by Mr Wilson. He did not in fact give evidence that Harwood continually complained about minor aspects of the pursuer's work. That particular averment is anyway so wide that I consider that it is qualified by the examples which follow, and in this regard I refer back to my note of 7 August 2007, paragraph 95. Mr Wilson, in amplification of his general comment, said that "If anything was wrong, [the pursuer] usually got the blame." That is not supported by any averment on Record. It is not an example of a complaint about minor aspects of the pursuer's work, rather it is an allegation that the pursuer was wrongly blamed for what others had done. Accordingly, I hold that particular answer to be inadmissible. That evidence is anyway so vague as to be of no value, unless backed by specific examples so even had I ruled the evidence to be admissible, I would have attached no weight to it. Mr Wilson then gave evidence about Harwood swearing at the pursuer when Mr Wilson and others went to the pursuer looking for materials, which he said happened a couple of times. That evidence is in my view admissible, having regard to the averment that Harwood criticised the pursuer for helping fellow employees with their work, although again little weight falls to be attached to it, having regard to its vagueness. The effect of all this is that Mr Wilson's evidence adds little if anything to the pursuer's case. He is unable to corroborate any specific incident spoken to by the pursuer; and insofar as Mr Wilson may have been speaking about other occasions, not spoken to by the pursuer, the evidence is too general to be of any value, or to enable me to draw any inferences.

27

I have therefore sustained in part the objection relating to Mr Wilson's evidence, but insofar as I have repelled the objection have attached little weight to his evidence.

28

The pursuer for his part objected to the defenders leading evidence about DVDs, 6/25 and 6/27 of process, which purported to be recordings made under surveillance showing the pursuer engaged in daily activities. The objection was not made until after the DVDs were first played in evidence (when questions about them were put to the pursuer in cross-examination). Mr Kelly's explanation for the lateness of the objection was that he had originally understood that the DVDs were to be spoken to but in fact that was no longer to be the case. The defenders' submission was in substance that that criticism went merely to weight rather than admissibility.

29

I prefer the defenders' submission on this point. The pursuer freely accepted that the DVDs contained images of him doing such things as attending at the Murrayfield Hospital, driving a vehicle and interacting with his partner and child, and shopping. Since hearsay evidence is competent, and that is what the DVDs amount to, the DVDs are in my view admissible, and the absence of any witness, for whatever reason, to speak to how or when they were taken is a matter of weight only. I have accordingly repelled this objection. I have declined to make any specific findings in fact as to when the DVDs were taken, the date on the images being of little value in the absence of at least some evidence that it was properly set. That said, I have had regard to the images in the DVDs, at least some of which appear to be tied in to visits to see Dr Chiswick, and they do show the pursuer engaging in certain activities which are to some extent inconsistent with his assertions as to the extent of his disability. However, on that matter I attach more weight to the evidence of Dr Chiswick, and the DVDs themselves are of limited assistance, except insofar as they cast doubt upon the reliability of the pursuer's evidence as to the extent of his disability.

30

For the pursuer, Mr Kelly submitted that the pursuer had to show the following in order to succeed: that he was subjected to a course of conduct amounting to harassment; that the conduct was either intended to amount to harassment, or occurred in circumstances where it would appear to a reasonable person that it would amount to harassment; that the harassment caused or materially contributed to loss and injury suffered by the pursuer; and the extent of any such loss and injury.

Nature of conduct required

31

As regards the nature and quality of the conduct required to establish harassment, Mr Kelly renewed his submission made at the debate that criminality was not a prerequisite of harassment in Scotland, in contrast to the position in England (under reference to paragraph 30 in the speech of Lord Nicholls of Birkenhead in Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224). The same conclusion had been reached by Lord Emslie in the unreported Outer House case Robertson v The Scottish Ministers [2007] CSOH 186. There had admittedly been further English decisions since the debate, but the law in Scotland was unaltered. The English courts had been obliged to follow the guidance handed down by the House of Lords. The criminal offence was sui generis. For example, in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, the Court of Appeal, in an application to strike out, held that where British Gas had repeatedly sent letters threatening to cut off the claimant's gas supply, to start legal proceedings against her and to report her to credit rating agencies, it was strongly arguable that such conduct would constitute a criminal offence under the Act. The difference between Scotland and England was simply that in England there was both a criminal offence and civil liability, while in Scotland, leaving aside breach of a non-harassment order, there was only civil liability. The test in both jurisdictions was whether the conduct was unacceptable and oppressive. Further, in considering whether or not there had been harassment, it was the entire course of conduct which must be looked at rather than individual incidents in isolation: Ward v Scotrail Railways Ltd 1999 SC 255 at 262C. The English cases should be treated with caution since they dealt with English legislative provisions which did not apply in Scotland.

32

Mr Kelly founded upon ten separate incidents (discussed more fully below) as forming part of the course of conduct said to amount to harassment, and carefully scrutinised the evidence in relation to each. Additionally, he founded upon the general attitude adopted by Harwood towards the pursuer. The canteen incident[10] was not part of the harassment, rather it was part of the general background which showed that Harwood was ill-disposed towards the pursuer. The pursuer was credible as was Melanie Nelson who had given corroborating evidence. Harwood himself either agreed that many of the incidents took place or did not contradict the pursuer's account. He had admittedly criticised the pursuer in front of others. He was not a credible or reliable witness. There was evidence, from Kevin Mackenzie, Alan Wilson and David Reid, that Harwood treated the pursuer differently from others. There was also evidence, from the pursuer, that Christie thought that Harwood had it in for him. That evidence had not been contradicted by the defenders, who had chosen not to call Christie as a witness. There was ample evidence of a course of conduct amounting to harassment. The 1997 Act required that the conduct in question was intended to amount to harassment, or that it occurred in circumstances where it would appear to a reasonable person that it would amount to harassment. Although the intention must be that of the alleged harasser, intention must be judged objectively. There was evidence from which it could be inferred that Harwood intended to cause distress to the pursuer i.e. that he intended to harass him. Harwood said in evidence that he felt deflated when Colin Christie gave his complaints about the pursuer short shrift. The evidence as a whole suggested that Harwood and Christie did not get on. They were on the same level within the organisation, neither having jurisdiction over the other. Harwood formed the view that the pursuer paid no attention to him because of the praise he had received from Christie. He believed that the pursuer was not doing his real job while he was on night shift and that Christie was colluding with this in return for favours regarding the preparation of spreadsheets. He wished to humiliate the pursuer. Harwood all but admitted this in his evidence concerning the incident about New Year 2000. Alternatively, given the circumstances a reasonable person would conclude that Harwood's conduct towards the pursuer amounted to harassment.

Loss

33

Since the date of the final incident in October 2000 the pursuer had been unable to work. As well as anxiety and distress he had suffered from a psychiatric condition which had profoundly affected his life and which had caused him financial loss due to his inability to work.

Foreseeability

34

Mr Kelly anticipated that the defenders would renew the submission made at the debate that the only damages recoverable in a claim under the 1997 Act were for distress and anxiety and that damages for psychiatric injury were not recoverable unless foreseeable. Since the debate, this matter had been the subject of decision in the unreported Outer House case Robertson v The Scottish Ministers [2007] CSOH 186, in which Lord Emslie had rejected that very argument. Furthermore, in Choudhary v Martins [2008] 1 WLR 617 the Court of Appeal upheld an award of general damages under the Act by a County Court judge of £22,500 which included £12,500 for psychiatric injury. Accordingly, there was no bar to a claim for damages for psychiatric injury in claims brought under the 1997 Act.

35

Although their views differed as to how his condition should be categorised, all the medical experts agreed that whatever took place at work, or at least the pursuer's perception of that, precipitated his illness. Mental symptoms had developed by July 2000, a date at which only the harassment could have been a factor. The evidence showed that the pursuer stopped working because of the harassment. If harassment was established, that harassment was the main cause of the pursuer's illness.

Quantum

36

As for quantum, there was a difference among the medical experts as to the diagnosis of the pursuer's condition and as to his ability to work. I should accept Dr Rodger whose view was that the pursuer remained unfit for work at the date of the proof, in preference to Dr Chiswick who believed that after about 2003 the pursuer was no longer incapable of work as a result of mental difficulties but because of an attitude that he had decided to adopt (9/130-9/131).

37

The diagnosis of psychiatric illness was not an exact science. It was clear from the medical evidence as a whole that an adjustment disorder occurred as a reaction to a stressor and that a depressive disorder may do so. The experts agreed that there was a stressor present. Dr Rodger gave evidence that the two conditions had many similarities. The pursuer had one of those conditions. Dr Rodger's opinion should be preferred. One of the main reasons given by Dr Chiswick for rejecting the diagnosis of depressive disorder was that he claimed that ideas of guilt and unworthiness were essential components of such a diagnosis. However, when both ICD 10 and DSM-IV were examined, that was shown to be incorrect. When faced with this Dr Chiswick had suggested that his older version of ICD 10 dating from 1994 said otherwise. But when he was allowed to read from that version, that confirmed that ideas of guilt and unworthiness were simply possible symptoms, not essential for the diagnosis. In addition, in his original report at page 8 he gave as another reason for rejecting depression as a diagnosis that the pursuer's principal complaints "have been anger, resentment, irritability, loss of impulse control and outbursts of aggression". Having been taken through the medical records which were available to him at the time of the preparation of his report (10/17 and following pages) Dr Chiswick eventually conceded at pages 10/52-10/55 that his statement was not borne out by those records and that his report must be read as meaning that those had been the pursuer's principal complaints made to Dr Chiswick on the date of the examination. Furthermore, the weight of medical opinion was against Dr Chiswick. The medical records showed that a diagnosis of "depression" was made by the pursuer's GP, by a Dr Pugh instructed by the defenders and by Mr Harrington, a psychologist. Dr Dickson, the treating psychiatrist, who repeatedly noted signs of anger in the pursuer, also originally diagnosed a depressive disorder, and subsequently, dysthymia, described as a form of low-grade depression.

38

The principal complaint made against Dr Rodger was that he did not get the same history as Dr Chiswick and his report did not expressly deal with the pursuer's anger, although Dr Rodger said that he covered this with the pursuer under the umbrella of irritability. Furthermore, he had not reported the pursuer's own words, and one was left to trust Dr Rodger that he found the symptoms which he claimed to have found. However, in narrating the symptoms Dr Rodger stated that he had in mind the diagnostic criteria in DSM-IV and his report must be read in that light. There was no suggestion that Dr Rodger was dishonest and no reason to suppose that he did not accurately note the pursuer's symptoms.

39

Even if Dr Chiswick's opinion were preferred, the pursuer had suffered psychiatric harm for which he was entitled to recover damages. A diagnosis of adjustment disorder rather than depressive disorder did not mean that the damages should be any less. Indeed Dr Rodger's evidence was that a person's ability to function could be affected more by an adjustment disorder than by a depressive disorder.

40

Dr Rodger confirmed in his reports and in his evidence that, in his view, the pursuer had been unable to work since October 2000. He expressed the view at 5/138-5/139 that the pursuer may not be able to get back to employment or at least full-time employment. Dr Chiswick confirmed in evidence (9/154) that he considered the pursuer still to be suffering from an adjustment disorder. However, at pages 9/130- 131 he took the view that it was an attitude adopted by the pursuer that prevented him from working from about the end of 2003. In his reports dated May and October 2004 Dr Chiswick had expressed the view that it was the adjustment disorder which was preventing the pursuer from working at that time. He was unable to explain this change of view satisfactorily under cross examination at pages 10/127-10/130. The evidence of Dr Rodger was to be preferred. Dr Chiswick's view was speculative and the date chosen by him arbitrary. Insofar as he founded upon the pursuer's supposed "rigidity" (page 9/154, and page 9 of his original report) the defenders had to take their victim as they found him. Even accepting Dr Chiswick's opinion, the psychiatric illness triggered the pursuer's inability to work, which had been prolonged as a result of factors inherent in the pursuer's personality, but was a direct consequence of the initial course of conduct.

41

Mr Kelly helpfully produced a schedule setting out his quantification of the pursuer's loss. Taking the pursuer's agreed net pay over his last eleven weeks of working, he had a net weekly wage of £225.23. Making no allowances for any increases, that translated into a wage loss to 4 June 2009 of £90.498.45, plus interest. Applying a multiplier of 18.69 and again making no allowances for any increases, future wage loss was £218,900.95. As regards solatium, it was worth somewhere in the region of £35,000 to £50,000. Reference was made to the Judicial Studies Board Guidelines JS3A and to the criteria specified therein. The pursuer's injuries could be described as either severe (indicating a range of £35,000 to £74,000) or moderately severe (£12,250 to £35,000). The following cases were referred to (in decreasing order of severity, figures shown being the values at January 2009): Ormsby v Chief Constable, Strathclyde Police 2008 SCLR 783 (£50,000); Collins v First Quench Retailing Ltd 2003 SLT 1220 (£28,320); McMahon v British Railways Board 1995 SLT 590 (£23,680); Lawson v Scotdem 2000 SLT 543 (£19,200); Fraser v State Hospitals Board for Scotland 2001 SLT 1051 (£15,120).

Nature of conduct required

42

Ms Shand submitted that the pursuer had failed to establish that Harwood pursued a course of conduct towards him which amounted to harassment or that any incidents which did constitute such a course of conduct were intended by Harwood to harass the pursuer, or had occurred in circumstances where it would appear to a reasonable person that they would amount to harassment of the pursuer. Further, he had failed to establish that any course of conduct amounting to harassment had caused him injury, or at any rate any injury in respect of which damages fell to be paid under the 1997 Act. Ms Shand referred to the English and Scottish provisions of the 1997 Act, which provide no definition of "harassment", save that it "includes" causing the person claiming to be harassed alarm or distress. Harassment was not equiparated with causing the person alarm or distress: Majrowski v Guy's & St Thomas' NHS Trust, [2005] EWCA Civ 251 (Court of Appeal), per Lord Justice May at paragraph 82, where he said that to amount to harassment, conduct had to be calculated in an objective sense to cause distress and had to be oppressive and unreasonable. Conversely conduct may amount to harassment because, judged objectively, it was conduct that was likely to produce the consequences that the claimant is alarmed or distressed even although in the case of a particular claimant that did not in fact happen. See also Dowson & Ors v The Chief Constable of Northumbria Police [2009] EWHC 907 (QB). The test was an objective one: R V Colohan [2001] EWCA(Crim) 1251.

43

As there was no statutory definition, it was necessary to examine the case law on what had and had not been held to constitute "harassment" for the purposes of the Act. In Thomas v News Group Newspapers [2001] EWCA 1233, racist criticism published in a newspaper which was foreseeably likely to stimulate a racist reaction on the part of readers and to cause the claimant distress was held capable of amounting to harassment. Banks v Ablex Ltd [2005] EWCA Civ 173 was a case of alleged harassment at work, involving ill-tempered outbursts which were held not to be capable of amounting to harassment in that they were giving vent to frustrations rather than being directed at the claimant. Majrowski v Guy's & St Thomas' NHS Trust, [2005] EWCA Civ 251 (Court of Appeal), and [2007] 1 AC 224 (House of Lords) was likewise a case of alleged harassment at work where the conduct complained of included being rude and abusive to the complainant in front of other staff, being excessively critical of his time-keeping and his work, imposing unrealistic performance targets coupled with the threat of disciplinary action if he failed to meet them, and isolating him by refusing to talk to him. The actual issue which fell for decision was whether the employers could be vicariously liable, the House of Lords eventually upholding the Court of Appeal's decision that they could. Lord Justice May's definition of harassment at paragraphs 82 and 83 of his judgment was not the subject of adverse comment in the House of Lords. Lord Nicholls of Birkenhead, at paragraph 30, stated:

"..courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2."

44

Green v Deutsch Bank Group Services [2006] EWHC 1898 (QB) was an extreme case, which succeeded both at common law and under the Act, where the harassment consisted of behaviour described as "a relentless campaign of mean and spiteful behaviour designed to cause her distress". That behaviour was much more extreme than that complained of here.

45

As regards the approach to be taken by the court, each incident should be considered individually, and the question asked whether it was capable of being harassment: Hammond v International Network Services UK Ltd [2007] EWHC 2604 (QB); Banks supra; Avis infra; Conn v Sunderland County Council [2007] EWCA Civ 1492; King v DPP [2001] A.C.D. 7.

46

In Allen v London Borough of Southwark [2008] EWCA Civ 1478 the alleged harassment comprised the raising of five sets of legal proceedings against the claimant, for recovery of possession. In Ferguson v British Gas Trading Ltd (C of A) [2009] EWCA Civ 46 the conduct complained of comprised the sending of threatening letters and repeated bills to someone British Gas knew was no longer a customer. In both cases, the conduct was held to be capable of amounting to harassment and both were allowed to go to trial.

47

The most recent case to consider harassment was Dowson & Ors v The Chief Constable of Northumbria Police [2009] EWHC 907 (QB). The proceedings consisted of nine linked claims by various police officers brought against the Chief Constable pursuant to the 1997 Act, three of which were the subject of a striking out application. The allegations centred largely on the conduct of one officer, which it was said amounted to harassment of his junior officers. Mr Justice Coulson noted (at paragraph 6) that the claims did not fall within what might be considered as the mainstream of harassment claims but arose out of an alleged clash of personalities. Many of the pleaded problems arose from genuine differences of opinion as to how particular investigations were to be conducted. The judge noted the importance of context, and refused to accept a submission that the cases of Allen and Ferguson represented a watering down of the requirement of conduct of particular gravity in order to amount to harassment under the 1997 Act. The judge granted the striking out applications on various grounds, including that the conduct complained of was not of sufficient gravity to amount to harassment and that it was not targeted at the claimants.

48

Turning to Scottish cases, in Robertson (AP) v The Scottish Ministers, supra, Lord Emslie repeated the need for caution in branding every day conduct as harassment where criminal consequences, at least in England and Wales, would automatically follow. The 1997 Act had been the subject of two sheriff court proofs. In Avis v CCG (UK) Limited & Anr an unreported decision of Sheriff Bickett at Dumfries dated 18^th September 2006, the sheriff was not prepared to hold that a single comment to the pursuer to get off her fat backside was any more than insensitive. In McClelland v Dumfries & Galloway Council, an unreported decision of Sheriff Ross of 9^th July 2007, the sheriff declined to hold that for conduct to be harassment it must be such as to constitute an offence in England, but said that the words of section 8(1) should be applied, informing any consideration of them with how the courts have approached the issue of causing alarm and distress in the context of a charge of breach of the peace. As for the approach taken to alarm and distress in breach of the peace cases, reference was made to Gordon, Criminal Law, Chapter 41. The conduct had to be such as, judged objectively, was likely to cause fear or alarm: Donaldson v Vannet 1998 SLT 957. Finally, the case of McGlennan v McKinnon, 1998 SLT 494 reiterated the principle that context was all important.

49

The following principles could be derived from the cases:

-           

-          For conduct to constitute harassment it must be unreasonable and oppressive; conduct which is unattractive and even unreasonable will not suffice;

-           

-          The fewer the incidents said to amount to a course of conduct and the wider they are spread, the less likely it will be that a finding of harassment can be made: (Lau v DPP (unreported Judgement of the High Court of Justice, Queen's Bench Division, 22 February 2000); R v Hills [2001] 1 FCR 569; also Merelie v Newcastle Primary Care Trust & Ors [2004] EWHC 2554 cf Pratt v DPP [2001] EWHC 483 (Admin).

-           

-          Context is all-important.

-           

-          In an employment relationship where one person has authority over another the relationship may by its very nature include conduct of the general nature of which the pursuer complains, such as complaints about the quality of the pursuer's work or punctuality; refusal of overtime; comments to third parties about performance; and instruction to perform particular tasks.

50

As regards the evidence, I should not accept the pursuer, Melanie Nelson or Kevin Mackenzie as credible and reliable. By contrast, Harwood, David Reid, Aileen Whiteford, David Ibbitson, Alison Stewart, George Taylor, Andrew George, and Eric Johnston were all doing their best to tell the truth as they remembered it.

51

As regards an analysis of the alleged incidents, most of them had occurred when the pursuer was on night shift. If they had amounted to harassment, it did not make sense that the pursuer should voluntarily transfer to day shift, as he did in April or May 2000. The pursuer had given conflicting evidence as to whether the harassment had started on night shift or day shift. Only a few incidents took place on day shift. No course of conduct amounting to harassment could be inferred from those. All that the evidence showed was that there was clearly a different approach to work taken by Harwood and the pursuer. The pursuer had a desire to be liked by his colleagues, so much so that he helped them when he should have been doing other things, and had been or was at risk of being taken advantage of by them. This tied in with the view of doctors that he had a desire to please and to be liked and had a sensitive personality. Harwood on the other hand was very "task-orientated" and in order to keep the stock systems running smoothly had been concerned to see that priority was given at all times to keeping the stock logged at regular intervals and up-to-date at the end of a shift. There was no evidence showing that Harwood intended to harass the pursuer. Moreover, the pursuer not only did not claim in his evidence that Harwood intended to pursue a course of harassment against the pursuer but he recognised that the reason why Harwood spoke to him about the matters complained about was because Harwood was unhappy with the pursuer's performance at work.

52

As regards damages, even if the pursuer had established a course of conduct amounting to harassment, he had failed to prove that he had developed any psychiatric disorder as a result of any such conduct. Moreover, the 1997 Act could not be used to circumvent the normal common law rule of foreseeability applicable to claims for psychiatric injury so as to permit recovery in respect of psychiatric illness in circumstances where such damages could not be recovered at common law. Such injuries were too remote to be recoverable. There were two strands to the former submission. First, there were clearly many things which had been bothering the pursuer, over and above any incidents which might be held to constitute harassment. These included incidents which might have amounted to harassment but had not been explored in evidence and did not form part of the pursuer's case; and any incidents which were found to have occurred but not to amount to part of any course of conduct of harassment. Further, the pursuer's condition had also been contributed to by events since he left the defenders' employment. There was no medical evidence linking the pursuer's condition to any harassment which might be established. This issue was highlighted in Banks v Ablex at paragraph 11 where Lord Justice Kennedy referred to the possible need for a medical report to be obtained once the facts had been established. The pursuer could have moved for a split proof to deal with quantum and causation separately from liability; or he could have had his expert sit in on the evidence. The second strand to this submission was that the need to establish "but for" causation could not be avoided by arguing that such incidents as were held to amount to harassment had made a material contribution to his illness. The essence of this submission was that "material contribution" was a relaxation of the orthodox "but for" test which could be applied only in restricted circumstances which did not pertain here. Miss Shand developed this submission by embarking upon a detailed analysis of Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22. She submitted that the conditions which had to be satisfied before causation could be established by showing a material risk in the increase of harm were not satisfied in the present case. To understand Fairchild, it was necessary first to consider the cases of Wardlaw v Bonnington Castings1956 SC (HL) 26 and McGhee v National Coal Board 1973 SC (HL) 37. In Wardlaw, there had been dust from two sources, hammers and swing grinders, all of which dust had caused the pursuer's pneumoconiosis, but only the dust from the swing grinders was negligent. It was impossible to tell to what extent the "guilty" dust had caused the disease, and it could not be said that but for that dust, the pneumoconiosis would not have occurred. The House of Lords had held that material contribution was sufficient. In McGhee, the medical witnesses had been unable to say that but for the breach of duty in that case, the pursuer would probably not have contracted dermatitis, and the pursuer had been unable to prove either "but for" causation, or a material contribution by the negligent failure. However, the House of Lords equated a material increase in risk with a material contribution, and held the defenders liable. In Fairchild, the claimant had contracted mesothelioma. He had been negligently exposed to asbestos dust by different employers, but, due to limits in medical science, it was not possible to say where he had contracted the disease. Four of the five judges in The House of Lords regarded McGhee as having adapted the "but for" test of causation, rather than simply being an example of a case where an evidential inference was drawn. As McGhee had therefore laid down a principle, it was necessary to establish the limits of that principle. The House of Lords in Fairchild set out the limits. They held that a modified approach to causation was justified and that proof of a material increase in risk was sufficient to satisfy the causal requirements for liability. Their Lordships each approached the issue in a slightly different way, but crucial to their decision was the state of medical knowledge being such that the onset of the disease could not be attributed to any particular or cumulative exposure. It was also a common theme in their reasoning that the risk which should have been guarded against was the one which actually came to pass. It had likewise been a feature of Wardlaw (as was apparent from the Lord President's opinion in the Inner House, at page 330) and McGhee that the state of scientific knowledge was such that the actual cause could not be identified. The normal rule of causation was therefore the "but for" test with material contribution and material increase in risk both forming exceptions to that rule. One could not simply choose to apply the material contribution test: Porter v SRC 1991 SLT 446. The effect of Wardlaw, properly interpreted in light of Fairchild, was that material contribution could only be relied upon where it was impossible for a pursuer to prove the precise cause of his condition due to limitations in scientific knowledge or medical understanding, and where the kind of risk which eventuated was the one which ought to have been guarded against. The pursuer in the present case failed to satisfy either criterion. He had not shown any limitation in medical or scientific understanding; and he had also failed to show that the conduct complained of was capable of causing his injury. He was in no better position than the plaintiff in Wilsher v Essex Area Health Authority 1988 1AC 1074, where there were a number of factors which might have caused the injury and where the plaintiff consequently failed to establish causation.

53

Even if the pursuer was entitled to succeed by proving that harassment had materially contributed to his condition, an apportionment exercise would have to be carried out: Barker v Corus UK Ltd 2006 2AC 572; Sutherland v Hatton [2002] EWCA Civ 76, 2002 All ER 1, per Lady Justice Hale at paragraphs 40 and 41. No such exercise had been attempted and there was no evidence which would enable the court to award damages to the pursuer on the basis of material contribution. See also Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421.

54

Even if the pursuer had established a causal link between any harassment and his psychiatric condition, the 1997 Act could not be used to circumvent the normal common law pre-requisite for foreseeability of the development of psychiatric illness so as to permit recovery in respect of psychiatric illness in circumstances where such damages could not be recovered at common law. That there was such a prerequisite and that the law drew a distinction between emotions such as upset and frustration and a psychiatric disorder was established by cases such as Rorrison v West Lothian Council and Anr 2000 SCLR 245 and White or Frost v Chief Constable of South Yorkshire Police 1999 2 AC 455. Reference was made in particular to the speeches of Lord Steyn in Frost which contained a useful overview of the policy considerations underlying the law's approach to psychiatric injury and stated the need for limiting rules to control the circumstances in which recovery could be made for psychiatric injury; and of Lord Hoffman. Reference was also made to Barber v Somerset CC [2004] 1 WLR 1089. Against this background, Ms Shand then referred to Essa v Laing [2004] EWCA Civ 2 and to the dissenting opinion of Rix LJ, which she submitted should be preferred to the majority opinions. The facts in that case, stated briefly, were that Mr Essa had been the victim of a single racially offensive comment, which had not only caused him distress, but was said to have caused psychiatric harm. He brought a claim under section 54 of the Race Relations Act 1976, claiming that the respondent company had discriminated against him on the grounds of race. The employment tribunal held that the company was liable only for the foreseeable consequences of the discrimination and that the psychiatric injury, being an extreme reaction, was not foreseeable. The Employment Appeal Tribunal, on appeal, held that the statutory tort created by section 54 of the 1976 Act was designed to protect persons from all kinds of discrimination on the grounds of race and that compensation was recoverable in respect of all harm caused directly by the act of discrimination, whether or not it was reasonably foreseeable. The company then appealed to the Court of Appeal. The opinion of the majority held that the Tribunal was wrong to hold that the damage was not foreseeable; the test was the kind of damage rather than its extent. The statutory tort of racial discrimination created by section 54 was designed to protect persons from all kinds of discrimination on the grounds of race and any subsequent injury, including personal injury, caused naturally and directly by the act of discrimination, whether or not it was reasonably foreseeable, was compensateable. Reference was made to Kuwait Airways Corpn. v Iraqui Airways Co (Nos. 4 and 5) [2002] 2 AC 883. The court further held that in any event psychiatric illness and injury to feelings were not different kinds of damage and the foreseeability of injury to feelings in the instant case was obvious so that the foreseeability test would be satisfied with respect to psychiatric illness. However, the reasoning of Rix LJ should be preferred and applied equally to claims under the 1997 Act. In holding that foreseeability of psychiatric injury was not required and that such injury and injury to feeling were not different kinds of damage, Lord Justices Pill and Clarke had ignored the point made by Lord Hoffman in Kuwait Airways that one is never simply liable, one is only ever liable for something and also ignored the related fact that the law does regard psychiatric illness as a different type of injury from injury to feelings that falls short of psychiatric illness: see eg Rorrison v West Lothian Council at 254 D-F; White or Frost v The Chief Constable, supra. The reasoning of Rix LJ was compelling and principled and should be followed. He held there was nothing in the wording of the 1976 Act which required that quantification of loss should be by reference to pure causation, excluding any consideration of reasonable foreseeability. He pointed out that discrimination need not be deliberate. He observed that normally liability for personal injury tort is limited by the concept of foreseeability (ie of the kind of damage sustained being a reasonably foreseeable risk). Finally he disagreed with the proposition that injury to feelings is the same type of injury as psychiatric injury. He noted that as Lord Jauncey of Tullichettle had said in Page v Smith [1996] AC 155 at 171 B (in a dissenting speech, but one to which Lord Lloyd of Berwick had referred at 189 H): "The ordinary emotions of anxiety, fear, grief or transient shock are not conditions for which the law gives compensation." Applying the same reasoning to claims under the 1997 Act, it should be held that the pursuer could not recover damages under the 1997 Act for psychiatric illness, at least where evidence had not been led to establish foreseeability. This position was supported by the statement of Lord Nicholls of Birkenhead in Majrowski (HL) at paragraph 22: "The effect of section 3(1) is to render a breach of section 1 a wrong giving rise to the ordinary remedies the law provides for civil wrongs. This includes an entitlement to damages for any loss or damage sustained by a victim by reason of the wrong. Ordinary principles of causation and mitigation and the like apply." The defenders' position was also supported by the observations of certain of the Lords in Majrowski that claims under the Act are likely to be modest: see paragraphs 29 (Lord Nicholls), and 70 (Baroness Hale of Richmond).

55

Two cases where it was held or assumed that damages could be claimed under the Act for psychiatric illness were Robertson v The Scottish Ministers, referred to supra, and Choudhary v Martins [2007] EWCA Civ 1379. Robertson was a decision following a Procedure Roll debate. The defenders had argued inter alia that while the Act permitted damages to be awarded for mere anxiety and distress it did not follow that damages for more serious psychiatric illness could also be awarded. This argument was rejected, Lord Emslie holding that "The terms of section 8(6) are inclusive and non-exhaustive, and cannot fairly be regarded as setting some kind of statutory maximum." However, it appeared that the defenders did not advance a particularly detailed or principled argument in support of their position in this regard and neither Essa v Laing nor the English cases such as Vento v Chief Constable of West Yorkshire 2003 ICR 318 (where separate awards were made for injury to feelings and psychiatric injury) were referred to the Court, nor did the dicta of Lord Hoffmann in Kuwait Airways and Fairchild and that of Lord Nicholls in Majrowski at paragraph 22 appear to have been drawn to the Court's attention. One of Lord Emslie's reasons for rejecting the defenders' argument in that case that damages for psychiatric illness could not be awarded under the 1997 Act was that "it would be difficult if not impossible to draw any workable dividing line between recoverable and non-recoverable damages." In Choudhary however the judge at first instance, following the approach in employment discrimination legislation cases such as Vento awarded damages for what was referred to as "injury to feelings" separate from damages for psychiatric illness. There was no argument advanced on behalf of the defendant appellant that damages could not be awarded under the Act for psychiatric illness in the absence of foreseeability of psychiatric illness being established. The Judge's approach in making separate awards for injury to feelings and psychiatric injury was upheld by the Court of Appeal. Whilst there was no precedent for a Scottish Court making separate awards of damages for injury to feelings and for psychiatric injury, and it should not do so, this case undermined the reasoning of Clarke LJ and Pill LJ in Essa supra, which was based on a view that psychiatric injury and injury to feelings were not different kinds of damage, and was further support for the views of Rix LJ that they are regarded by the law as different kinds of damage. Neither Robertson nor Choudhary undermined the defenders' argument. In further support of the submission that injury to feelings and psychiatric injury were different kinds of damage, reference was made to Ross v Pryde 2004 Rep LR 129. Although Lord Macfadyen had earlier reached the contrary view in Gillies v Lynch 2002 SLT 1420, the reasoning of Temporary Judge R F MacDonald, QC should be preferred.

56

Even if the defenders failed in all the foregoing arguments, the pursuer had failed to prove that any of the incidents founded upon had caused him distress or anxiety. He had therefore failed to establish that any harassment had caused him injury.

Quantum

57

If the court should hold that the pursuer had established a breach of section 8(1) and that he was entitled to damages only for anxiety and distress, any damages awarded should be modest and should not include damages for loss of earnings. The amount of damages must depend on how many incidents of harassment the Court ultimately found established and how many of these it found caused the pursuer distress and anxiety. The following cases were of assistance: Gilbert v Yorston 1997 SLT 879 (£1,500, present-day value £2,040), Reid v Ski Independence 1999 SLT (Sh Ct) 62 (£400 and £450 solatium to two different pursuers, present-day values £512, and £576 respectively), and Mallon v Monklands DC 1986 SLT 347 (£100, present-day value £218). Reference was made to the Judicial Studies Board Guidelines Section 3 (A)(d) where it was said: "Awards have been made below this bracket [the bracket being £1,000 to £3,750] in cases of temporary anxiety".

58

If the defenders' primary submissions were all rejected, and solatium were being awarded for psychiatric injury, then any damages for solatium and loss of earnings should be restricted to a date not later than three years after 2 October 2000, based on an average net weekly wage of only £216.16. The pursuer had not proved that he was unable to work by beyond mid-2001 or in any event beyond 2 October 2003. Solatium in that event would be worth no more than £13,000 to £15,000, the case of Fraser v State Hospitals Board for Scotland 2001 SLT 1051 being closest to the present case on its facts. The pursuer in Avis v CCG (UK) Limited would have been awarded £17,000 by Sheriff Bickett for a more serious condition. Reference was also made to Judicial Studies Board Guidelines Section 3 (A)(c).

59

As regards the medical evidence, Dr Chiswick should be preferred to Dr Rodger. The latter's view that the pursuer was still unfit to work was predicated on his view (which I should not accept) that the pursuer was suffering from a major depressive disorder, DSM IV 296.22. In any event, it was the evidence of Dr Chiswick that regardless of whether the pursuer had or had not suffered a major depressive disorder he had not suffered a psychiatric disorder of sufficient severity as to cause him to be unfit for work to date. Dr Rodger's evidence could not be relied on for several reasons. His reports were brief on the reporting of the pursuer's symptoms which he had used to make the diagnosis and further gave no indication of what entries, if any, in the prior records of the pursuer he had taken into account as supporting his diagnosis. Accordingly they did not contain the detail such as was contained in Dr Chiswick's reports that allow his opinions to be tested to see if they stood up to scrutiny. Dr Chiswick's opinions did stand up to scrutiny. Further, in contrast to Dr Dickson, Dr Chiswick and Neil Harrington (who did not give evidence, but whose reports were considered) who had all found that anger was a major feature of the pursuer's presentation (and in Dr Chiswick's case, he found it to be the most striking feature of the pursuer's presentation), Dr Rodger did not mention anger at all, which undermined his opinion. Even the pursuer himself gave evidence that anger was a major part of his problems. Dr Rodger who had initially made a diagnosis of a single major depressive episode was forced to concede that if Mr Dickie spoke only of spells when he was depressed that would not be consistent with an ongoing major depressive disorder nor with a single uninterrupted episode of a depressive disorder (5/108). Yet despite this and despite being told of what Mr Dickie had reported about his anger both to the Court and to Dr Chiswick (which Dr Rodger would have known about in any event as he had had sight of Dr Chiswick's report) and acknowledging that this information would have been something that had he known about he would have considered worthy of mention in his reports, and despite also acknowledging that Dr Chiswick had "gained some information in breadth and depth that I didn't [have]" (5/102 C-E) Dr Rodger insisted in maintaining his diagnosis without, it is submitted, giving any good reason for that.

60

Since the written submissions were exchanged in advance, both parties were, in the main, able to anticipate the submissions to be made by the other, and there was consequently less need for the pursuer to respond to the defenders' submissions than might otherwise have been the case. However, Mr Kelly did make certain further points insofar as he had not anticipated, or dealt with, the defenders' arguments in his original submissions. To some extent, I have incorporated these points in the above summary of the pursuer's submissions. Insofar as I have not done that, the further material points made by Mr Kelly are as follows.

61

Mr Kelly reiterated that the pursuer's case was that his condition was caused by harassment by Harwood, and only by that harassment. If he had not proved that, then his fall-back position was that the harassment had made a material contribution to his condition. McGhee was of no relevance. Wardlaw had not established anything new, as was clear from the speech of Lord Rodger in Fairchild. Following that case, Lord Hope had written an article, James McGhee - a second Mrs Donoghue 2003 CLJUK 587 from which it was clear that he did not consider that material contribution was no longer sufficient to establish causation. Professor Thomson, Delictual Liability, 4^th edn., page 144, was of a similar view.

62

As regards apportionment, the dicta of Lady Justice Hale were not relevant to the present case. Even if they were, the House of Lords in Barber declined to approve the passage in question. The reasoning of Lord Uist in Wright v Stoddard International Plc 2008 Rep L.R. 2 should be preferred. See also Lord Rodger in Barker v Corus.

63

As regards foreseeability, simply because anxiety and psychiatric injury were treated differently by the common law, it did not mean to say that they were in fact different types of injury. If I were to hold that foreseeability was a prerequisite for a claim under the 1997 Act, I should follow the majority in Essa by holding that foreseeability of anxiety was sufficient.

64

Miss Shand briefly responded to Mr Kelly's further points. The defenders accepted that Wardlaw was still good law, but Fairchild had re-emphasised that where the "but for" test was to be departed from, there had to be defined circumstances in which that was done. In relation to the passage from Professor Thomson's book, material contribution required that the noxious substances which caused the pursuer's condition were all of the same type, and one could not say, for example, that an email was of the same type as a comment "you can't hack it". Apportionment was appropriate where the damage was divisible, and even Lord Rodger in Barker v Corus accepted that.

Approach to "harassment"

65

Harassment is a creature of statute, and the question of what conduct is struck at is primarily one of statutory interpretation. Section 8 (1) of the 1997 Act is in the following terms:

"(1) every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another and -

(a) is intended to amount to harassment of that person; or

(b) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person."

66

Section 8(2) provides that an actual or apprehended breach of subsection (1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. By virtue of section 8(3), "conduct" includes speech; "harassment" of a person includes causing the person alarm or distress; and a "course of conduct" must involve conduct on at least two occasions.

67

These provisions are not free from difficulty. Section 8(1) contains a two stage test. In order for a course of conduct to be struck at, it must firstly amount to harassment; and, secondly it must either be intended to amount to harassment or it must be such as would appear to a reasonable person to amount to harassment. Logically, it must therefore be possible for conduct to satisfy the first branch of the test (and therefore to amount to harassment) but not the second (and therefore not amount to harassment, because it is neither intended so to do, nor does it occur in circumstances where it would appear to a reasonable person so to do). Parliament has therefore apparently envisaged that conduct could amount to harassment but not be actionable; because it is neither intended to amount to harassment nor such as would appear to a reasonable person to amount to harassment. Further, by virtue of section 8(3), it would appear that being caused alarm or distress is sufficient, although not necessary, for conduct to be such as to amount to harassment. On the face of it, then, the definition is extremely wide and could encompass any conduct which causes alarm or distress (at least at the first stage of the test) as well as some conduct which does not.

68

I do not find it necessary to repeat the precise terms of the corresponding English provision, but suffice to say for present purposes that it is in similar although not identical terms, and the main difference between the two jurisdictions is that in England, a course of conduct which constitutes harassment is automatically a criminal offence, whereas in Scotland it is not. The reason for this is that the crime of breach of the peace was thought to be wide enough to cover most types of conduct which constitute harassment. I return to this issue below[11]. Although the precise wording of the provisions is different, both strike at "harassment" and there is no suggestion that that term is used differently in the two sets of provisions. Accordingly, I consider it appropriate to have regard to the English cases for guidance as to the approach to be taken in construing "harassment", provided that I bear in mind, as I do, that ultimately my task is to construe the terms of section 8.

69

The general thrust of the English cases is that in order to constitute harassment, conduct, viewed objectively, must be both unreasonable and oppressive, a distinction having been drawn in many of the cases between such conduct and conduct which is merely unattractive or the sort of conduct to be expected in the ordinary badinage of day to day life. So, in Majrowski v St Guys and St Thomas's NHS Trust 2007 1AC 224, Lord Justice May in the Court of Appeal referred to the need for conduct to be calculated in an objective sense to cause distress and to be oppressive and unreasonable. In the House of Lords, Lord Nicholls at paragraph 30 of his speech likewise drew a distinction between conduct which is unattractive, even unreasonable, and conduct which is unacceptable.

70

Lord Justice May, in Majrowski, was also at pains to point out that the mere fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. So, in England at least, there will be occasions when a person suffers alarm or distress, where the conduct will not be held to amount to harassment. Immediately, then, there is a recognition that there will be instances of conduct, which is not only unreasonable but which may even cause a person distress, which nonetheless is not sufficiently oppressive to constitute the wrong of harassment.

71

It is also now clear from the English cases that although the fact that harassment in England is in itself criminal should colour the courts' appreciation of what is and what is not harassment, harassment may be found to exist in conduct which, if not repeated, would not normally give rise to criminal responsibility. Two recent examples of this, where the issue was simply whether the action should be struck out or not, are Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 and Allen v London Borough of Southwark [2008] EWCA Civ 1478. In Ferguson the alleged conduct consisted of the sending of letters threatening legal action and making other threats. In Allen it was the raising of court proceedings. In each case the Court of Appeal held that the conduct could amount to harassment, and both cases were allowed to proceed to trial. Similarly, in the earlier case of Thomas v News Group Newspapers [2001] EWCA 1233, the conduct complained of was the publishing of comments in a newspaper. In all these cases, the conduct consisted of acts which were in themselves legal, but which may have been carried out oppressively and consequently were capable of amounting to harassment. These cases also illustrate a further requirement of harassment, namely that it must be targeted at an individual.

72

Harassment is capable of being, and has been, committed in an employment context, but care must be taken to distinguish between oppressive conduct and conduct which is either not targeted at any individual in particular, however unpleasant it may be, and conduct, even if targeted at a fellow employee, which is either justified or fails to meet the so called "gravity" test, no matter how unattractive. The most extreme example of harassment in the workplace is Green v Deutsch Bank Group Services [2006] EWHC 1898 (QB) where the conduct by four fellow employees included ignoring or staring at the claimant, often with their arms crossed done in a way that was designed to unnerve the claimant; greeting and acknowledging other members of the Secretariat department in which the claimant worked in a very overt manner, in order to highlight the fact that they were not speaking to the claimant; excluding her from conversations with other members of the Secretariat by either talking over her or pretending they could not hear anything that the claimant said; excluding her from group activities to which every other member of the Secretariat would be invited, typically when booking restaurants for departmental lunches; waiting for her to walk past the area of the office in which they sat before bursting out laughing; shouting to each other "err what's that stink in here?" and then saying "it's coming from over there". Quite clearly such conduct justified the judge's description of it as a relentless campaign of mean and spiteful behaviour designed to cause the claimant distress, and therefore to have been oppressive and targeted at the claimant. On no view, could it be described as part of the normal badinage of day to day office life, or as having been justified in an employment context.

73

At the other end of the spectrum, perhaps, is Dowson & Ors v The Chief Constable of Northumbria Police [2009] EWHC 907 (QB) where two police officers came into conflict (and the conduct of one was alleged to amount to harassment) arising out of a different approach to the job. Such conduct was held not to be capable of amounting to harassment (although certain other claims in the same case were allowed to proceed to trial). In Conn -v- Council of the City of Sunderland [2007] EWCA Civ 1492 the recorder found two out of five incidents proved. On one occasion the alleged harasser became angry at three persons including the claimant and threatened to punch out windows. The two other persons did not feel intimidated. On the other occasion the alleged harasser lost his temper and threatened to assault the claimant. Again, the Court of Appeal drew a distinction between unattractive and oppressive conduct. Lord Justice Gage observed that context was important in considering whether contact crossed the line from unattractive to unacceptable. The court held that the recorder had been wrong to find that the conduct amounted to harassment, because even allowing that the second incident did cross the line and was unacceptable, the first could not. The courts have therefore recognised that the stress of the working environment can give rise to the venting of frustration, even in shows of temper, and a certain amount of leeway has been shown to volatile individuals.

74

In Conn the court considered each incident individually, and in relation to each asked whether it could constitute harassment. Similarly in King -v- DPP [2001] A.C.D. 7 Mr Justice Jackson looked at each individual incident said to constitute a course of conduct amounting to harassment, and considered in relation to each whether it was capable of forming part of such a course of conduct. He drew a distinction between a course of conduct amounting to harassment and mere background. Two incidents were held not to be capable of forming part of any harassment because they were in themselves harmless, even though one or both of them might have caused distress. Those incidents were part of the background, against which subsequent events could be evaluated.

75

Turning now to Scottish cases, since my interlocutor and note in this action dated 7 August 2007 the terms of Section 8 have been considered in the Outer House case of Robertson -v- the Scottish Ministers [2007] CSOH 186, which like the present case was a claim in respect of alleged bullying and harassment at work. That claim was advanced on three separate grounds, one of which was an alleged breach of section 8. In dealing with an argument advanced by the defenders that only criminal conduct could constitute harassment, Lord Emslie observed that in England criminality was explicitly a consequence rather than a prerequisite of civil harassment. He went on to say that Lord Nicholls in Majrowski had been directing his comment at paragraph 30[12] to the obvious need for caution in branding everyday conduct "harassment" where criminal liability would (in England and Wales) automatically follow. Implicit in these comments is the acceptance, as in England, that there will be certain conduct which is short of ideal but which is simply not serious enough to constitute harassment.

76

My attention was also drawn to two sheriff court cases which went to proof, although since each case must ultimately turn on its own facts, neither is of great assistance. However, in Avis v CCG (UK) Limited & Anr an unreported decision of Sheriff Bickett at Dumfries dated 18^th September 2006, the sheriff, inter alia, was not prepared to hold that a single comment to the pursuer to get off her fat backside was any more than insensitive. In McClellan v Dumfries and Galloway Council, unreported, 9^th July 2007 Sheriff Ross found that the conduct complained of was not harassment. Sheriff Ross declined to hold that for conduct to be harassment it must be such as to constitute an offence in England, but said that the words of section 8(1) should be applied, informing any consideration of them with how the courts have approached the issue of causing alarm and distress in the context of a charge of breach of the peace.

77

While I agree that the court must apply the words of section 8(1), I consider that some care must be taken in having regard to cases on breach of the peace. Some time was taken up during submissions on this issue. However, Ms Shand correctly in my view, eventually accepted that conduct did not need to amount to breach of the peace in order to amount to harassment. One obvious difference between harassment and breach of the peace is that conduct can amount to a breach of the peace only if it is alarming or distressing, and disturbing. The latter requirement does not exist in relation to harassment. I would also point out that the reference in the 1997 Act is to conduct which is either alarming or distressing: it does not need to be both. Provided that those factors are borne in mind I see no reason why the courts should not, in appropriate cases, have regard to cases on breach of the peace to see what is meant, in a criminal context, by alarm or distress, for what that is worth. That said, I was not referred to any such cases. However, I do proceed on the basis that caution must be exercised in branding conduct as harassment, and to that extent I accept the defenders' submission that the potential criminal consequences of conduct amounting to harassment, in Scotland as in England, should merely colour one's appreciation of the sort of conduct which is required in order to amount to harassment.

78

Reverting to what is meant by section 8, I have to say that I have some difficulty in reconciling all the cases with the two stage test. It is not clear to me for example whether conduct which happens to cause distress but is not objectively calculated to have that result, fails the first or the second branch of the test or both; and I still have difficulty in envisaging a course of conduct which amounts to harassment but which fails the second branch of the test. Be that as it may, however, it seems to me that the following principles can be stated:

-

To qualify as actionable harassment, conduct must be oppressive and unacceptable (the gravity test);

-

The conduct must, viewed objectively, be calculated to cause alarm or distress, whether or not alarm or distress is in fact caused (the objectivity test);

-

The conduct must be targeted at an individual.

-

The conduct need not be such as to constitute a breach of the peace.

-

There must have been conduct on at least two occasions.

79

As regards the approach to be taken in analysing conduct to ascertain whether it falls foul of the Act or not, the parties diverged, at least ostensibly, as to what was the correct approach. Mr Kelly submitted that the court must look at the whole conduct, and ask whether it amounted to harassment. Incidents which seem innocuous viewed in isolation might take on a more sinister hue when seen as part of a repetitive course of conduct, or in the context of other incidents. So, in Ferguson it was the overall conduct which potentially formed harassment. He urged me not to adopt the approach contended for by the defenders which was to ask in relation to each and every incident whether it had the necessary quality of oppressiveness and unreasonableness. The defenders' position, by contrast, was that although they conceded that each incident had to be viewed in the context of every other incident, unless an incident could in itself be described as oppressive and unacceptable, then it could not form part of any course of conduct amounting to harassment.

80

I agree with Mr Kelly to the extent that the 1997 Act is clearly directed at a course of conduct rather than at individual incidents. I agree, therefore, that it is the quality of the whole course of conduct which must be capable of being deemed oppressive and unreasonable. On the other hand, a course of conduct is no more than a series of incidents, and I also agree with Ms Shand that at some point in the exercise of evaluating the conduct it is necessary to consider each incident separately to see whether it is capable of supporting the inference that it forms part of a course of conduct amounting to harassment. That was the approach adopted in cases such as King and Conn. Each incident must be considered in context, by having regard to what has gone before and what happened later. If any particular incident was not targeted at the claimant (as, for example, the first incident in Conn) or was not calculated to cause alarm or distress (as the first two incidents in King) then it will be held not to form part of a course of conduct constituting harassment (whether or not there are other incidents which do make up such a course of conduct). This may in the end of the day be a matter of mere semantics, since whether an incident is said not in itself to amount to harassment, or is said not to form part of a course of conduct amounting to harassment is in my view immaterial. It is difficult to see how a series of events none of which caused distress and none of which was targeted at an individual could ever amount to harassment of that individual. Mr Kelly's argument that it is the repetitive nature of certain conduct which makes it harassment is, I think, answered by pointing out that after the conduct has been repeated a stage will be reached when the individual incidents do become distressing and can in themselves be categorised as harassment. So, for example, in Allen, the first two sets of proceedings were not part of any harassment, but the third to fifth sets were at least capable of being so construed. Even if they were ultimately held to constitute a course of conduct amounting to harassment that would not retrospectively have turned the first two into part of the harassment. However, incidents which are found not to constitute part of any course of conduct amounting to harassment may remain relevant as part of the background. It also seems to me to be important to consider incidents in chronological order since the way in which one views any particular incident might be coloured by what has gone before.

81

Having set out the approach to be taken, I will consider each of the incidents in turn but I will begin by considering an incident which was not founded upon by the pursuer at all as forming part of any harassment, but which sets the scene since it provides one possible explanation for the strained relationship between the pursuer and Harwood. I refer to the occasion which seems to have happened early on in the pursuer's employment, when Harwood told him to throw out certain materials and not to tell Gibson. The pursuer felt uncomfortable with this request, which one can understand, although there was no basis on the evidence for supposing that there was anything inherently improper in Harwood's desire to discard the materials, since they were eventually thrown out. In particular, there is no basis for concluding that Harwood's aim was to get the pursuer into trouble. However, it is not difficult to see why the pursuer's decision to report the matter to Mr Christie might have led to a strained relationship. I have found in fact that following this incident, the pursuer formed the belief that Harwood did not like him, and that this belief was well founded as Harwood did dislike him (although the dislike did not stem from this incident so much as from Harwood's belief that the pursuer, to put it bluntly, did not do his job properly). This incident nonetheless forms part of the general background against which subsequent incidents should be viewed.

The canteen incident

82

Kevin Mackenzie claimed that in the course of a conversation in the canteen about the pursuer's car, Harwood described the pursuer as a "mummy's boy". Eric Johnston, who was allegedly present, had no recollection of such a statement. Harwood denied that he would have made such a statement, because he had lost his own mother at a young age and it was not the sort of thing he would have said. In contrast to his position on Record, the pursuer now accepts that this incident also cannot form part of any course of conduct, since the pursuer was not present and did not find out about it at the time. However, he submits that it forms part of the general background, showing that Harwood was ill-disposed towards the pursuer.

83

Notwithstanding the doubts I have expressed about his credibility and reliability on certain matters, it seems to me unlikely that Kevin Mackenzie would have fabricated the "mummy's boy" comment. Had he been maliciously ascribing an insulting comment to Harwood, he could have come up with something more damning than that, since to describe someone as a mummy's boy is hardly the most derogatory of statements. Accordingly, I do find that the comment was made. However, as I have just said, it is hardly abusive, and given that no-one else present could even remember the comment being made it hardly served to demean the pursuer in the eyes of others. At worst for Harwood, it demonstrates that he did not care for the pursuer but it does no more than that and since that can in any event be inferred from some of the other incidents, the canteen incident does not advance the pursuer's case at all. It may not be pleasant to speak about someone behind his back in mildly derogatory terms, but I do not consider that the incident can be described any more highly than that. Further, although the incident is relied upon as background only, it is difficult to attach any significance to it even in that context when no attempt was made to show when it occurred, or to relate it to other incidents.

The clutch incident

84

The pursuer's evidence-in-chief (Notes of evidence 1/61-1/62) was brief and to the effect that on one occasion he was late for a stock count because his car wouldn't start. He had to walk to work in the pouring rain and was about half an hour late. When he arrived, Harwood said "where have you been?" The pursuer started to explain about his clutch, but Harwood said: "Aye, you just can't fucking hack it." No attempt was initially made to date this incident, or put it in the context of other incidents. In cross-examination (2/60-2/63) the pursuer initially confirmed the account given in chief. He said that he had been about two hours late. In response to questions about whether he was supposed to be coming in on the following day as well but had let Harwood down at the last minute, the pursuer initially said that he could not remember but in response to further questioning he did appear to have a clear recollection of there being a second day on this occasion, for which he had not turned up because of the problem with his car. As regards the date of the incident, he accepted that it may well have happened when he was on night shift. Melanie Nelson confirmed (at 6/8-6/9) that she could recall an incident when the pursuer was late for work because of a problem with his car, as a result of which Harwood had given him a hard time and had said that he would not give the pursuer any more overtime (more information than the pursuer himself had volunteered). Harwood said in chief (7/42-7/44) that he could remember the pursuer not coming in for a stock check and could remember hearing about the clutch some time later. He conceded that he might have said to the pursuer that he couldn't hack it. In cross-examination (8/3-8/5) he said that he had no recollection of the pursuer turning up late on the first day but that he couldn't remember and that that might have happened. David Reid (11/173-11/175, and 11/188) said that he could recall an occasion when the pursuer did not turn up for a stock count and the clutch emerging as an explanation some days later. He could not recall the pursuer having arrived late, although he might have left by that time.

85

This was one of the less satisfactory passages of evidence given by the pursuer. The first problem with his evidence is that he did appear to recollect more in cross-examination than he had volunteered in chief, in particular about the second day's stock count. This in itself casts doubt about the reliability of his evidence on this issue since either he was being selective in the evidence he initially gave, or he was making up his evidence in cross-examination as he went along (which having regard to the detail he eventually gave I do not consider to be the case). What appears particularly to have irked Harwood was the pursuer's not having appeared for the second day. The pursuer accepted that he had missed the second day, and that is also consistent with David Reid's evidence that he could recall the pursuer not appearing at all. While I do accept that at some stage, Harwood said to the pursuer that he could not hack it, it seems to me more likely that this occurred in the context of the failure on the second day (either at the end of the first day when the pursuer told Harwood that he would not be coming in the following day - as indeed was put to Harwood in cross examination - or on some subsequent occasion). That is also consistent with David Reid's recollection that knowledge that the clutch on the car was the problem did not emerge until a few days later, casting further doubt on the pursuer's initial account. The other significant feature about the pursuer's evidence is that he did not give any evidence that he attached any significance to the incident at the time, let alone that it caused him any distress. The pursuer also did not attempt to link this incident to any other incident nor did he have any clear recollection as to precisely when it had occurred, but I have no reason not to accept his acceptance that it may well have happened on night shift. Finally, I do not attach any great weight to Melanie Nelson's evidence for reasons explained elsewhere in this note.

86

I have therefore found in fact that the clutch incident occurred at a time when the pursuer was still on night shift; that he was late on the first day but that in itself caused no ructions; that he did not turn up for the second day; and that the latter failure annoyed Harwood as a result of which he told the pursuer that he could not hack it.

87

Whatever the reason for it, there is no escaping the fact that the pursuer's non-attendance on the second day would have been inconvenient and that Harwood was entitled to feel some measure of irritation. The comment "you can't hack it" (even if, contrary to my finding in fact, it had been prefaced by an expletive) is the type of comment one might well expect to hear uttered in the workplace in these circumstances. I cannot find either that it amounted to harassment or that it formed part of a course of conduct amounting to harassment or that Harwood intended it to amount to harassment or that it would appear to a reasonable person to amount to harassment. Further, it is in any event difficult to know what significance to attach to the incident without knowing more precisely when it occurred, and whether it was before or after the other incidents complained of. To the extent that the pursuer may have been upset by this incident, that is because he was the subject of (justifiable) criticism.

The email (5/16 of process)

88

The pursuer's account of the delay in his wage increase is at 1/63-1/67 and 2/52-2/57 of the Notes of Evidence. He considered that the e-mail, dated 21 October 1999, showed that Harwood was responsible for his pay increase being delayed. The pursuer's main complaint seemed to be that he was not receiving the pay to which he was entitled and that he was receiving less pay than other materials handlers despite doing more work (see for example his evidence at 2/54 C to E). He considered that he was being blocked by Harwood. Harwood's evidence (7/35-737; 7/60-7/61; 7/157-7/165) was that the responsibility for signing off the pursuer for his pay increase had by that time passed to John Gibson. He accepted that he had received e-mails from Colin Christie on 8 and 14 October which he said he had passed on to John Gibson without telling Christie that he had done so.

89

It is instructive to have regard to the terms of the e-mail and to compare them with the pursuer's perception of it, since that sheds light on his likely perception of other incidents. The e-mail is in the following terms:

" John, Graham Dickie is pushing me to come up with the training schedule he requires for advancement to phase 3 and 4 of material handling. I've e-mailed Jim twice (8th and 14th Oct.) on this matter without reply. I feel Graham is very competant (sic) at his job and would like to ensure he is being paid the going rate for what he does. He works with little or no supervision and is always willing to assist all departments on the night shift. Everyone in the facility knows how there (sic) training is progressing and it is surely only fair that Graham gets the same oppertunities (sic) as everyone else. I want to recommend a merit increase for him but cannot do so without written justification."

90

What can reasonably be taken from this e-mail is that Christie thought that the pursuer merited a pay increase; written justification was required; John Gibson, who had previously been e-mailed by Christie, was in a position to provide the written justification or to ensure that someone else, presumably "Jim" (Harwood), provided it; and Christie had e-mailed Harwood twice about the matter but had not received a response. There is no evidence to contradict Harwood's assertion that by that time it was John Gibson's responsibility to provide the training schedules. The pursuer accepted that at some point after the e-mail of 21 October was sent, John Gibson signed off his pay increase.

91

It is easy to understand why the pursuer was frustrated by the delay in his receiving a pay increase, but more difficult to agree with his interpretation of the e-mail as showing that Harwood was blocking him or treating him differently from everyone else. The blame primarily lay with Christie, who had apparently forwarded the e-mail to the wrong person, and with Gibson, for his delay in acting upon the emails forwarded to him. A phone call by Christie at an earlier stage might well have prevented the problem from arising in the first place. Indeed, it may have been to deflect criticism from himself that Christie showed the e-mail to the pursuer, which otherwise seems an odd thing for him to have done. Harwood's main sin was one of omission, by failing to respond to two e-mails but no evidence was led to contradict his assertion that he had forwarded both e-mails to Gibson. Even if he had not done so, that would not show either that he was deliberately blocking the pursuer or that he was treating him differently from everyone else, since it may well be that Harwood was poor at responding to e-mails generally.

92

Accordingly, I cannot accept that the pursuer has placed a reasonable interpretation on the e-mail, and while I would not go so far as to describe his interpretation of it as showing actual paranoia (in a medical sense) on his part, as the defenders submitted, it does show that he holds an unreasonable belief about one aspect of Harwood's conduct and has an inability to distinguish between something which falls short of best practice (failure to acknowledge an e-mail and to tell the recipient that it should have been directed to someone else) and conduct deliberately targeted at him.

93

Moreover, the pursuer did not say that he was caused distress at the time. While the date of the e-mail is documented, it is not possible to tell whether or not this incident occurred before or after some of the other incidents complained of and therefore it is again difficult to place it in context (although the fact that it happened in October 1999 suggests that it was one of the earlier incidents). I have the inescapable impression that the pursuer has reinterpreted this incident in the light of later events and has done so in an unjustifiable way.

94

I cannot conclude that this incident, either on its own or taken in conjunction with other incidents, constitutes harassment or forms part of a course of conduct amounting to harassment or that it was intended to amount to harassment or that a reasonable person would consider that it amounted to harassment. The incident does not come remotely near to crossing the boundary between unattractive and unacceptable conduct. Indeed, I would not even go so far as to describe it as unattractive conduct. For that matter, it cannot be described as conduct targeted at the pursuer.

95

It is also instructive to analyse the pursuer's perception of an objective piece of documentary evidence. If his perception of this is distorted, as I have found it to be, then it is likely that his perception of other events, spoken to by witnesses rather than documents, is similarly distorted and unjustified, and this does cause me to treat his whole evidence about Harwood's conduct with caution.

The incident(s) when Graham Stewart left work for the pursuer

96

The pursuer's evidence (at 1/48 to 1/52 and, in cross-examination, at 2/64 to 2/67) was that "sometimes" when he came on to night shift the place was overrun with empty pallets and adhesive barrels, which he had to discard. This happened "a lot of the time" - "twice a week, maybe more". Graham Stewart told the pursuer that Harwood had him on the racks and told to leave the barrels for the pursuer to put away. Mr Stewart had apologised for this more than once. The pursuer had not left any physical work for Graham Stewart, although he had left other work which Mr Stewart had to complete, namely, the inputting of transaction sheets on to the system. Harwood (at 7/130 to 7/133) did not dispute that it was possible that he told Stewart to leave drums for the pursuer to put away. While he did not recollect having given such an instruction, he agreed that he might have done so if there were more important tasks to undertake, such as the movement of live stock around the plant or stock to keep the machine going. Graham Stewart did not give evidence. David Reid said that it could happen that items had to be left for the next shift to put away, if something came up demanding more priority, which was in accordance with what Harwood said.

97

In the absence of detail about dates and in the absence of any corroboration, I do not accept that Graham Stewart left barrels and drums for the pursuer to put away as often as twice a week, or that his doing so was as onerous for the pursuer as he claimed in evidence. The pursuer worked on nightshift from August 1999 until April 2000 - a period of eight or nine months. If work had been left as often as twice a week, it is inconceivable that others would not have noticed, or that the pursuer would not have complained about the matter sooner. Again, I consider that this is an issue which the pursuer has exaggerated with the passage of time, and to which he has attached more significance than it merited and on which his evidence is not reliable. I do accept that on occasion Harwood told Graham Stewart to leave items for the pursuer to put away. However, I am not prepared to draw from that any inference of improper motive on Harwood's part, particularly as I find that this happened only occasionally over a relatively long period. On the pursuer's own evidence, there was sometimes insufficient time to complete every single task in the course of a shift and inevitably some work would on occasion have to be left for the incoming shift. It seems to me to be immaterial whether it was manual work or paperwork which was left. I also accept Harwood's evidence that it was more important to move live stock than empty barrels. That is not only common sense but is confirmed by David Reid's evidence. There is no evidence to show that Harwood's decision to have Graham Stewart working on the racks was unreasonable, or one that he was not entitled to take in the course of his duties. Nor am I prepared to read anything sinister into Graham Stewart having apologised, since as David Reid said, it was human nature to do so to preserve a good relationship with colleagues.

98

The pursuer has not given evidence that he regarded the leaving of work for him as harassment at the time. I am unable to conclude that, by occasionally instructing Graham Stewart to leave items for the pursuer to put away, Harwood was harassing the pursuer or that he intended to harass him or that a reasonable person would consider that these instructions amounted to harassment. I am not prepared to hold that his giving of such instructions could be described as unattractive, let alone as unacceptable, conduct, or that it was targeted at the pursuer. I also note that there was no evidence that the pursuer was caused alarm or distress by this at the time, nor was the conduct calculated to have that effect. It is difficult to see that the leaving of work, on an occasional basis, could, viewed objectively, be either alarming or distressing.

The clipboard incident

99

The pursuer's evidence on this incident is at 1/78 to 1/81 and 2/87 to 2/89. He said that the incident occurred when he was on night shift, although he could not be any more specific than that as to date. He had been in during the day shift, working overtime, to receive training. He had been with George Taylor, who had been showing him how to put labels on material that had just come in when Harwood came up to him clutching a transaction sheet and work order attached to a clipboard. Harwood asked the pursuer where was the material to which the documents related. The pursuer did not know, as the documentation had not emanated from his shift. Harwood shoved the clipboard at the pursuer, causing it to hit him in the chest. He grabbed it back and went away. The pursuer felt embarrassed and his feelings were hurt. He believed that Harwood had hit him deliberately although he conceded in cross-examination that it could have been a case of Harwood in frustration shoving the clipboard towards him and then snatching it back. Harwood's evidence is at 7/153 to 7/157. He had no recollection of the incident, although he did concede that if it had happened as the pursuer had said, his, Harwood's, behaviour would have been unreasonable. He did, however, say that if he had asked the pursuer about materials, the materials must have emanated from the pursuer's shift otherwise he would have had no cause to question the pursuer about them. George Taylor had no recollection of the incident at all although he accepted that the pursuer could well have been receiving training from him.

100

I find it more difficult to analyse this incident than some of the others. While I have cast doubt on the pursuer's reliability on points of detail, and on his general perception of events, I do not suggest that he has deliberately fabricated incidents which have no foundation at all in fact. Accordingly, I accept that there was an incident when the pursuer was receiving training from George Taylor when he was approached by Harwood and was asked about the whereabouts of materials, in the course of which the clipboard being held by Harwood came into contact with the pursuer. I do not accept the pursuer's evidence that the materials were nothing to do with him. It is difficult to see how he would ever have known whose shift the materials emanated from on his version of events, since he did not say that there was a detailed discussion about the nature of the materials or that he was shown the transaction sheets in question. On the other hand, Harwood's evidence that he would not have asked the pursuer about the materials unless they had emanated from his shift was entirely credible. The pursuer had two distinct grievances arising from the incident. First, he considered it unreasonable that Harwood should ask him about the materials at all, when they were not, in the pursuer's eyes, his responsibility. Second, he complained about being struck by the clipboard. As for the first of these points, I have declined to find that the materials were not his responsibility, but even if that had been the case, Harwood had a clear interest in locating materials and would have been entitled to ask the pursuer if he knew where they were. It is difficult to reach any conclusion as to whether the pursuer has always believed that Harwood should not have been asking him about the materials at all, or whether that is a gloss he has put on the incident over the years. Either way, the pursuer's attitude reflects a difference in opinion between the two men as to how Harwood should have been carrying out his job. On any analysis of the incident, it is not possible to attribute any improper motive to Harwood for asking the pursuer about materials, even in a brusque manner. Turning to the pursuer's complaint that he was struck by the clipboard, I have to decide whether this amounted to an assault because if it did, that would undoubtedly be an incident which would be capable of forming part of a course of conduct amounting to harassment. However I am unable to conclude, even on a balance of probabilities, that Harwood did assault the pursuer. I accept George Taylor's evidence that he did not remember the incident. Had Harwood deliberately struck the pursuer, even in a relatively minor way, I would expect George Taylor to have remembered that. In addition, the pursuer himself accepted that the clipboard could merely have been thrust towards him out of frustration, an act from which it is not possible to infer the necessary evil intent for assault. Further, having already established that the pursuer's perception of incidents involving Harwood cannot be relied upon, I am unable to attach any weight to his belief that Harwood did deliberately strike him with the clipboard. On balance, then, I find that there is no basis for inferring that this incident comprised harassment, or formed part of a course of conduct amounting to harassment.

The New Year Incident

101

There is no real dispute between the pursuer and Harwood as to what happened on this occasion, which occurred just after New Year 2000 at a time when the pursuer was still on night shift. There was a meeting between Harwood and the three materials handlers, namely, the pursuer, Graham Stewart and David Reid. The pursuer wished Harwood "Happy New Year" to which Harwood responded "Yeah, yeah. Now our New Year's resolutions is done and dusted, this New Year's resolution is we must clear the decks and Graham you are the worst for not doing that." David Reid said that he had no recollection of being there. However, I think it more likely that he was but that the incident was so insignificant that it did not stick in his memory.

102

No-one could claim that Harwood's response to the pursuer's New Year greeting was pleasant. On the contrary, it was a singularly uncivil response to a traditional greeting which work colleagues normally share at that time of year. One might well think that it was inappropriate for Harwood to take that opportunity to express his negative views as to the pursuer's material handling capabilities, both because of the friendly comment he was responding to and because other material handlers were present. "Clearing the decks" was a reference to what Harwood perceived as the pursuer's repeated failure to update the Madisun system after a product had been manufactured. It was clear from the evidence that this was something which the pursuer did not always manage to do, although he attempted to justify that by pointing to the difficulties in doing so in a busy workplace where more than one task had to be performed. I cannot say that Harwood was not entitled to hold the view of the pursuer's performance which he did, even though that view was not apparently shared by others. Harwood, as stock controller, was uniquely qualified to pass comment on the pursuer's performance in relation to the recording of stock movements. He was therefore entitled to express his view to the pursuer, however inappropriately, and while it was undoubtedly bad management to do so in front of others, I cannot find that his comment on this occasion amounted to harassment or formed part of a course of conduct amounting to harassment. Harwood also later made the same point to all shift leaders, in email 6/15 of process, sent on 21 June 2000, that the system required to be updated promptly; and so he could not be said to be solely targeting the pursuer (even if the pursuer was the main culprit). It does appear that Harwood genuinely held the view over a period of time that it was necessary for the Madisun system to be updated promptly, and that the pursuer did not always achieve that. Harwood's conduct in criticising the pursuer in front of others was unattractive but did not cross the boundary to become oppressive. This is reinforced by the fact that the pursuer did not say that he was caused any distress at the time, nor was the conduct calculated to have that effect, and further that the incident was not significant enough to make any impact on David Reid. I therefore cannot find either that the conduct amounted to harassment, or that Harwood intended to harass the pursuer, or that any reasonable person would consider that his conduct amounted to harassment.

Harwood's complaint to Christie

103

The pursuer gave evidence, at 1/59 to 1/60, and 2/50 to 2/51, that on an occasion when he was on night shift, Harwood hauled him off to see Christie to complain about three bits of the pursuer's writing on a transaction sheet and leaving work for the incoming shift. The complaint appeared to be about the fact that three transactions had not been logged on to the computer system, rather than the quality of the handwriting. Christie remonstrated with Harwood for troubling him with such a trivial matter and said that the pursuer was the best materials handler he'd ever had. Harwood, at 7/40 and 7/130, accepted that there was an occasion when he took the pursuer to see Christie in order to make a complaint against him related to the pursuer leaving work for the incoming shift. He accepted that Christie gave him short shrift, and claimed that Christie had sworn, although the pursuer was adamant that he did not. He admitted feeling deflated at Christie's response.

104

While there were differences of detail between Harwood and the pursuer, they were in substantial agreement that an incident occurred along the lines of that described by the pursuer. Although I am prepared to accept that this incident shows that Harwood did not like the pursuer, in my view it falls far short of harassment. To make a complaint about a fellow employee, even an unjustified one, or at any rate one which senior management did not accept (which is not quite the same thing) can hardly be viewed as an act of harassment and I do not view it as such. The complaint was after all factually correct; it was simply that Christie did not think that he should have been bothered with it. The position might be different had there been a whole series of unjustified complaints but there was no evidence that any other complaints were ever made by Harwood about the pursuer.

The four rolls incident

105

It would appear that this incident occurred when the pursuer was on the day shift, as both the pursuer and Harwood were at work at the same time and as the pursuer reported the incident to Kenny Davidson, who is therefore likely to have been his line manager at the time. The pursuer's evidence, at 1/82 to 1/85, was that Harwood walked up to him and asked why four rolls of material were sitting there, to which the pursuer replied that there was no space in the racks. Harwood swore at the pursuer, calling him a liar, and said that he had counted four or five spaces. The pursuer told Harwood that was because he had created those spaces. The pursuer's position in evidence was that the spaces were required for other material and that there was therefore no point in putting the four rolls of material into them, since they would simply have to be moved, but that he never had the opportunity to explain this to Harwood because Harwood simply walked off. That there was an incident of some sort was confirmed by Alan Wilson. Harwood had no recollection of any such incident: 7/45 and 8/14 to 8/16. I accept that at some point when the pursuer was on day shift an incident occurred along the lines of that spoken to by him. It follows that there was a disagreement between the pursuer and Harwood as to whether or not there were spaces in the racks which were available for four rolls of material to be moved into. However, I do not accept as reliable the pursuer's evidence that Harwood called him a liar, which I consider to be a gloss which the pursuer has put on Harwood's having challenged him. Harwood was in any event not asked about that in any detail, and this particular allegation was not put to him in cross examination. Several points require to be made. First, Harwood had a legitimate interest to take the issue up with the pursuer. Second, there were in fact spaces available which on the face of it the rolls could have been moved into. Third, the pursuer's response to Harwood was, taken literally, untrue, and Harwood was entitled to query the pursuer about that. Fourth, having done so it would have been good management practice for Harwood to have listened to the pursuer's response rather than walk off. Fifth, there was legitimate room for disagreement as to whether the rolls should in fact be moved into the spaces. I therefore find that there was a difference of opinion as to how work should be performed, which Harwood did not deal with particularly well and indeed his conduct could be described as unattractive. However, I am unable to find that the incident constituted harassment or that it formed part of a course of conduct amounting to her harassment. Harwood did not intend to harass the pursuer, nor would the reasonable person consider that his conduct on this occasion amounted to harassment. The pursuer was not caused alarm or distress, nor was the conduct calculated to have that effect.

Incident at the PS Machine (the web break incident)

106

The pursuer said (at 1/72 to 1/78 and 2/72 to 2/80) that this occurred when he was on the Sunday shift, that is, the day shift. There had been an adhesive spillage, or web break, at the PS machine, which could happen from time to time during the manufacturing process, which he was helping to clear up, having first obtained permission from his shift leader, Kenny Davidson. The pursuer was unclear in his evidence as to whether or not he had been wearing a respirator, but he did say, at 1/74, that chemicals were involved in the task, that a respirator was required and that he had a respirator. It is unclear whether he meant by this that he was wearing one at the time, or simply that he had one in general. While he was assisting, Harwood walked past, stopped, came round the back of the machine and asked the pursuer what he was doing there, to which the pursuer replied that he was just helping. Harwood said "What are you helping them for? If you want extra work, I'll give you a job" and "you don't f-ing help them." The pursuer did not tell Harwood that he had asked for Davidson's permission as he had no need to say that. He had his training sheet with him, and this was an opportunity for him to be signed off on a further aspect of his training. Harwood saw the training sheet but just walked away. The pursuer accepted that assisting to clear up a spillage was not part of his normal duties. Harwood, (at 7/46 to 7/49 and 7/145 to 7/151) recollected what appeared to be the same incident, which he said happened at a time when there were materials for the pursuer to move. He said to the pursuer something along the lines of "what do you think you're doing", to which the pursuer replied "helping the boys clean up". Harwood told the pursuer that it wasn't his job as a materials handler to do that. The pursuer did not take too kindly to this. Harwood walked away. He thought that the pursuer was wearing a respirator and protective clothing but wasn't entirely sure. He accepted that it was an imperative for the machine to be up and running again soon as possible and was unsure of the practicalities of how that could be achieved. Kevin Mackenzie also gave an account of what appeared to be the same incident at 6/98 to 6/102, albeit I found that he exaggerated his description of the number of expletives which Harwood managed to fit into the one sentence.

107

There was no material disagreement between the pursuer and Harwood that an incident along the lines of that described by the pursuer had occurred and I accept the pursuer's account in all material respects although it is unclear from his evidence whether he was wearing a respirator and whether he had been asked by Davidson to assist or whether he had simply volunteered. Neither point is of any great significance. Again, Harwood and the pursuer had a difference of opinion as to how the pursuer should be prioritising his work. In my view, Harwood had a legitimate interest to express his point of view and to take issue with the pursuer as to why he was engaged in a task which was not ordinarily part of his day-to-day duties. Again, Harwood might have approached the matter in a less brusque fashion but even if swearing at the pursuer in front of others takes his conduct into the unattractive category - which is not necessarily so, as there was evidence from David Reid that a lot of industrial language was used in the factory, and that Harwood's was not particularly bad[13] - again his conduct did not cross the line to become oppressive and unacceptable. The conduct was not such as to pass either the gravity or the objectivity test. It was not calculated to cause alarm or distress and did not in fact do so. It did not amount to harassment and was not intended to do so, nor would it appear to a reasonable person that it would amount to harassment

108

It is convenient at this point to mention one passage in the pursuer's evidence which underlines that there are two sides to every story, and that Harwood was entitled to take a different view of the pursuer's performance at work than the pursuer himself took. At page 1/43 of the Notes, the pursuer gave evidence that he liked to learn about other machines since it entitled him to increases in his wages. There is nothing wrong with that, but he did refer to doing this in his "spare time" by which he meant, from the evidence he had just given, that it was when a lengthy roll of material was going through a machine. He also referred to interacting with people and getting to know them, and he agreed with a question put to him that he found these chats beneficial. Now, it might be said that the pursuer should not have been regarding himself as having spare time during his working hours and his use of that term was interesting. Also, one person's interaction with others might arguably be seen as another's time wasting. I do not say for a minute that the pursuer was doing that, and I express no view as to who was in the right and who was in the wrong. However, it does seem to me from this passage of evidence, and from other evidence which the pursuer gave in which he sought to justify his actions in various respects, that there was room for Harwood to take a different view of the pursuer's performance from that taken by the pursuer himself, and that his having expressed that view, even in trenchant, pithy, coarse or downright rude terms does not amount to harassment. (Another example of how the same behaviour can legitimately be seen in different ways, depending on one's point of view, is found in David Reid's evidence at 11/170 to 11/171 where he variously described the pursuer as helping other people out; and as having a tendency to become sidetracked, by lending assistance to others before completing a task to which he had been assigned).

The tea break incident

109

This incident occurred on the same day as the incident at the PS machine, a short time later. It therefore occurred when the pursuer was on day shift. The pursuer's evidence, at 1/68 to 1/70 and 2/78 to 2/85, was to the effect that Harwood had been looking for a roll of material, just as the pursuer was about to go for his tea break. The pursuer pointed out to him where it was and Harwood insisted that he put it in the racks before going on his tea break. The pursuer considered there was no point in the roll going in the rack as it would shortly be required at one of the machines. He had to put the roll away before going on his break, which he accepted he could take at any time. The pursuer interpreted this as harassment by Harwood. When he returned from his tea break he accused Harwood of harassing him. Harwood could not recollect this incident (8/11 to 8/13).

110

I accept that something happened along the lines of the incident as described by the pursuer. Again, this was an incident which arose out of a difference of opinion. At least part of the pursuer's grievance was that he disagreed with Harwood as to whether the roll needed to be put away or not, but again, whether the pursuer appreciated it or not, this was a matter on which Harwood was entitled to have a different view. Given that tea breaks were flexible, it ought not to have been too distressing or inconvenient for the pursuer to have had his break delayed by a few minutes while he put the roll away, even if he disagreed with that instruction, and his reaction to Harwood's behaviour on this occasion is out of all proportion to what it was he was actually being asked to do. The conduct fails the gravity test, the objectivity test and neither caused alarm or distress nor was it calculated to do so. It did not amount to harassment and was not intended to do so, nor would it appear to a reasonable person that it would amount to harassment

The cores incident

111

This is a significant incident since it is the one which had most effect on the pursuer and which directly led to his leaving the defenders' employment. The pursuer's perception of it is as interesting, and significant, as the incident itself. The pursuer's evidence, at 1/96 to 1/100 and 2/97 to 2/107, was that he was taking cylindrical cores to the PS machine. Harwood was standing close by, talking to George Taylor. When the pursuer had finished moving the cores, Harwood called him over and asked whether the pursuer had taken them down to the PS machine. The pursuer replied "yes, you've seen me take them down", which Harwood denied. Harwood said "That's beside the point, did you take them down or did you not?" The pursuer said "Yes, I took them down". Harwood said "Did you not realise they were for slitting?" The pursuer said "No, I didn't see that." Harwood said "I don't know why, there was a sign on it about this size" and indicated a size of sign which could not have been missed. According to the pursuer, Harwood knew about this sign but he, the pursuer, had not seen it because it was either at the back or it wasn't facing where the pursuer had taken the cores from. The pursuer considered that Harwood's response was sarcastic. He also thought that Harwood had stood by and allowed him to move the cores instead of stepping in and pointing out that the cores did not have to be moved. The pursuer on his own account reacted to this by saying "Jim, you're the big man with your position, always picking on me" to which Harwood replied "I'm not the big man, I'm the old man." The pursuer then swore, saying "Yes, you're a fucking wanker of a man and if you had been any younger I would have punched lumps out of you." The pursuer was upset and went to see Kenny Davidson, to tell him that he couldn't work there any more. He drove home shortly afterwards, weeping. On the pursuer's evidence, George Taylor also saw him move the cores. He was not prepared to accept that, since Harwood was engaged in a conversation with Mr Taylor, his attention would have been taken up with that such that it would not have registered with him that the pursuer was moving cores which should not be moved. He accepted that he was angry when he found out what had happened. He claimed that Harwood was laughing at him.

112

Harwood's recollection of this incident in evidence, at 7/54 to 7/58 and 8/16 to 8/28, was that he had told the pursuer to move a number of pallets of cores from the slitting machine, where they were, to the PS machine but one of the pallets was identified as being required by the slitters and was not to be moved. He went away and when he came back he discovered that the pursuer had moved all the pallets to the PS machine. He asked him why he had moved cores that were identified as not to be removed. An exchange developed between them in the course of which the pursuer said "Let's you and me go and sort it out in the car park." Harwood was shaking like a leaf and went to report the matter to Davidson. He accepted that he might have been standing talking to George Taylor but denied that he had been watching the pursuer. His evidence was different in a number of respects from his account in a letter he had written to Kenny Davidson some months after the incident (No 6/18 of process). In particular, he stated in the letter that he and George Taylor had assumed that the pursuer was moving the pallet which was to remain simply to gain access to the other pallets, from which it would appear that not only did he not walk away while the pallets were being moved, but he did in fact notice the offending pallets being moved.

113

George Taylor had no recollection of the incident although he did recollect Harwood coming into his office after an altercation with the pursuer, seemingly agitated.

114

Since the pursuer did not work after this incident which did appear to have a profound impact on him, I have to accept that in his own mind it was a distressing incident, which also made him angry. Indeed this is the only incident which did cause him distress at the time. In relation to what took place (as distinct from the pursuer's interpretation of it, which I shall come on to in a moment) I also prefer the pursuer's account to that of Harwood, whose evidence was different from his letter written in February 2001. The latter, being much closer to the events in question is more likely to contain Harwood's accurate recollection of what happened, rather than evidence given some eight years on. Further, as Mr Kelly pointed out, the pursuer's evidence is in some respects more contrary to his interest than that given by Harwood, since it has the pursuer acting more aggressively and abusively than Harwood claimed. Accordingly, I accept that when the pursuer moved the cores which ought to have remained, Harwood was still in the vicinity, talking to George Taylor. I also accept that it was Harwood who pointed out the pursuer's mistake to him, resulting in the pursuer becoming upset and reacting in the way described by the pursuer in his evidence. However, particularly in light of the pursuer's distorted interpretation of certain other incidents referred to above (most significantly, in relation to the email) I cannot share the pursuer's perception that Harwood must necessarily consciously have allowed the pursuer to move the cores before pointing out his mistake to him. People engaged in a conversation at work might reasonably be expected to be concentrating on the conversation, rather than on what someone else happens to be doing. Even if Harwood was looking in the direction of the pursuer, as he might well have been, it does not follow that he was taking in what the pursuer was doing. Even if he did take it in on some level (as his letter does tend to confirm) there is no basis for inferring that he must have noticed that the pursuer was taking the cores away. It is at least equally as probable that Harwood would have assumed that the pursuer was aware of the sign. There was no suggestion in any of the evidence that Harwood was motivated by anything other than a desire to keep the factory running smoothly. It was not conducive to the smooth running of the factory that he stand by and deliberately allow the pursuer to move pallets which were earmarked to stay where they were. Accordingly, I am not prepared to conclude that there was anything which could even be described as unattractive about the pursuer's conduct on this occasion. Further, while I largely accept the pursuer's account of the incident, I do not accept that Harwood was laughing. Rather, I accept Harwood's evidence, corroborated by George Taylor, that he was shaken by the incident. Having been threatened with violence by the pursuer, who is a man prone to violent outbursts and who was admittedly angry on this occasion, I consider that to be inherently more likely than that he should be laughing.

115

Even if Harwood had deliberately stood by and watched the pursuer move the pallet in error, I would not have found that to have crossed the boundary from unattractive to oppressive and unacceptable conduct. Examples can be given of conduct which would have crossed the boundary. If Harwood had deliberately asked the pursuer to move a pallet which he knew ought not to be moved, or if he had deliberately hidden the sign, or even if the task had entailed the pursuer in a considerable amount of unnecessary manual labour, any of that might be seen as oppressive. However, there is no getting away from the fact that the sign on this occasion was there to be seen. The pursuer was the author of his own misfortune. The misfortune in any event was not in the grand scheme of things particularly significant since all that had happened was that the pursuer had made one unnecessary round trip with a forklift truck, which had to be undone.

116

It is also a moot point as to whether mere inactivity - not stepping in and pointing out an error - could ever amount to harassment. Bearing in mind that one of the remedies available against harassment is that of interdict, it is difficult to see how the "conduct" in question could have been interdicted or to envisage how a failure to act could have amounted to a breach of an interdict against harassment had one previously been granted. For all these reasons, I find that the conduct on this occasion did not amount to harassment, was not intended to amount to harassment and was not such as would appear to a reasonable person to amount to harassment.

The incidents as a whole

117

Having considered each of the incidents individually and reached the view that none of them can individually be categorised as harassment, as a double check I now propose to look at them globally, to ask whether it can be inferred that, taken together, some or all of them do amount, as is claimed, to a course of conduct which is such as to amount to harassment; that is, whether the incidents, although innocuous individually, do take on a more sinister hue viewed together.

118

There can be little doubt, from the evidence given by both men, and from an examination of all the incidents as a whole, that there was no love lost between Harwood and the pursuer. To put it bluntly, Harwood did not like the pursuer, a feeling which was reciprocated, and I have made findings in fact to that effect. However, I have also found in fact on the basis of the medical evidence that the pursuer is unduly sensitive to criticism and has a need to be liked and approved of by others, and I consider that there is much force in the defenders' submission that the two protagonists had different approaches to their work. Indeed this was apparent from the evidence given by David Reid. I have already referred to his reference to the pursuer having a tendency to become sidetracked in his willingness to help others. Later in his evidence, he described Harwood as task-orientated. So, the pursuer was genuinely helpful to others, sometimes at the expense of properly prioritising his own duties. Harwood's main concern, by contrast, was to ensure that the stock ran smoothly and that the Madisum system was kept up to date, something which the pursuer on his own admission did not always manage to achieve, although which he sought to justify. Having regard to the incidents as a whole, this difference in approach and antipathy towards each other did bring the men into conflict on a number of occasions and almost inevitably led to justifiable criticism being levelled at the pursuer from time to time. Given his dislike of criticism, it would not be surprising if such criticism was not well received by the pursuer.

119

I consider that the incidents complained of fall within three or perhaps four different categories. First, there are those incidents where the pursuer has, for the reasons explained above, formed an irrational and unjustified view that Harwood's conduct was targeted at him. Into this category fall the email and the complaint that Stewart was leaving work for the pursuer to finish. For the reasons explained elsewhere, I do not accept that in either case any inference adverse to Harwood can be drawn. Those incidents (if the email can be described as an incident) are simply not capable of forming part of a course of conduct amounting to harassment and in my view fall to be left out of account entirely in considering Harwood's overall conduct.

120

On five occasions, Harwood's conduct was directed at the pursuer, but was either justified, or at any rate disclosed a view which one could not say he was not entitled to hold. These incidents arose out of a difference of opinion as to how the pursuer and Harwood should be carrying out their respective jobs. Generally, it was Harwood who queried what the pursuer was dong; equally, the pursuer clearly felt that Harwood was not entitled to pursue certain matters pertaining to stock with him. A number of the incidents resulted in Harwood criticising the pursuer to his face, sometimes in the presence of others, and occasionally including the use of a swear word. The clutch incident was an occasion when the pursuer let Harwood down. The complaint to Christie was made because Harwood was unhappy with the pursuer leaving work for others to complete. The incident about the four rolls of material involved legitimate room for disagreement between the men, for the reasons set out above, as did the incident at the PS machine and the closely related tea-break incident. In all of these cases, one could well take the view that the pursuer was partially in the wrong. Even taken as a whole, one could not view Harwood's conduct on these occasions as oppressive, even if he swore on occasion and even if his management style left something to be desired. On no view of the 1997 Act can it strike at mere bad management technique, or at the mere use of swear words in the work place (just as swearing at police officers, by way of example, is not without more sufficient to constitute a breach of the peace).

121

Two other incidents can perhaps be categorised differently, although both work-related. This category comprises incidents where there was no objective justification for Harwood's behaviour. There was no excuse for his conduct in the New Year incident, when he acted boorishly. The clipboard incident occurred because Harwood was unable to find certain materials, which would understandably cause him to feel frustrated, but which he arguably ought not to have taken out on the pursuer in the way he did, and again his behaviour might be described as boorish. In neither of these cases, could the pursuer be criticised whereas Harwood's conduct was unattractive. However, even taken together, I do not find that the conduct was of a sufficient quality to amount to harassment. I reach that view partly on the basis that neither incident had any impact on the others who were present, which tends to show that the conduct was relatively insignificant and of the type to be expected to occur from time to time in a work environment, and partly because at least the New Year incident made no apparent impact on the pursuer at the time. The same cannot be said of the clipboard incident but I have explained my reasoning in relation to it more fully above. Put another way, the clipboard incident is in my view the high point of the pursuer's case but still falls short of the necessary standard required to show harassment.

122

Finally, there is the cores incident, which may simply be another instance of the pursuer forming an irrational view about Harwood, but which on reflection I consider deserves to be categorised separately as it has certain unique characteristics. For the reasons already given above, I do not consider that Harwood's conduct on that occasion was directed at the pursuer or that it amounted to harassment. Even if it did, a single incident is never sufficient to amount to a course of conduct.

123

So, even on this analysis, I do not consider that the pursuer has succeeded in establishing a course of conduct amounting to harassment. At best for him, the clipboard incident might have formed one instance of harassment but there is no other. Taking the incidents as a whole, I am unable to infer that Harwood intended to harass the pursuer. None of the conduct, alone or viewed together, occurred in circumstances where it would appear to a reasonable person that it would amount to harassment (with the possible exception of the clipboard incident).

124

I reach this conclusion even having regard to the background to the incidents, namely Harwood's general dislike of the pursuer and the canteen incident, which the pursuer was unaware of at the time in any event, and the incident when Harwood asked the pursuer to dispose of items, and also having regard to the general complaints made about Harwood's behaviour. I have found in fact that Harwood asked the pursuer to write certain transaction sheets again, but I am unable to make anything of that in the absence of some supporting evidence that the sheets were legible and the requests unreasonable. It was certainly the case that the sheets had to be legible. There was also some evidence about Harwood's general behaviour, but for reasons given elsewhere I am unable to attach much weight to that. Finally, I cannot draw any inferences from the pursuer's starting to dread going to work, and taking half days. The number of half days was not vouched; and there are many reasons short of harassment as to why the pursuer might have dreaded going to work even if in his own mind that feeling was related to Harwood in some way.

125

As a final double-check, it is, I think, also instructive to divide the conduct into two distinct stages: that which was before, and that which was after, the pursuer's change to day shift, since that change did bring him into more frequent contact with Harwood, who worked on day shift throughout. None of the incidents before that change are capable of amounting to harassment, individually or together, and it is interesting to observe that both of the first category of cases - those in relation to which the pursuer holds an unreasonable belief- stem from the time on night shift. The two occasions when Harwood acted boorishly also happened during that period, as did the clutch incident and the complaint to Christie. I consider that there is force in the defenders' submission that had the pursuer viewed those incidents at the time as amounting to harassment, then it is unlikely that he would have agreed to go on to the day shift. As was evident from the evidence of Alison Stewart, the pursuer could not have been forced to move to the day shift against his wishes, since it involved a reduction in his pay. It follows that the pursuer in my view has reinterpreted those incidents in the light of subsequent events and attached greater - and unjustified - significance to them than he did at the time. Note that I have declined to find in fact that Mr Christie told the pursuer that he would no longer be able to protect him from Harwood. That part of the pursuer's evidence was uncorroborated. Given the limited number of incidents which I have found occurred while the pursuer was on night shift, and the fact that I have found that those incidents did not amount to harassment, there was nothing from which the pursuer required to be protected. There was in any event no evidence that Christie had ever protected the pursuer from Harwood (other than Christie's response to the unjustified complaint, which is insufficient on its own to justify an inference that Christie was affording the pursuer on-going protection, as the remark attributed to him by the pursuer implies). I therefore consider it unlikely, on the evidence, that Christie did make such a remark, and I have therefore rejected this part of the pursuer's evidence. That then leaves us with a small number of incidents which occurred after the move to day shift, which is perhaps not surprising given that the men did then come into more frequent contact and given their different approach to work. These incidents may well have caused the pursuer to fret, since he is sensitive to criticism even where it is or may be justified, although as I have already explained I am unwilling to draw any inference from the pursuer's having dreaded going to work or leaving work early. Everything came to a head in the cores incident, which was caused more by the pursuer's perception of Harwood's behaviour towards him than anything else. Viewed objectively, it illustrates too that the pursuer felt angry towards Harwood, and that the feelings of antipathy felt by Harwood towards him were reciprocated.

126

For all these reasons, I conclude that the pursuer has failed to prove that Harwood's conduct amounted to harassment in terms of section 8 of the 1997 Act. The pursuer has exaggerated the gravity of Harwood's conduct towards him and has placed upon that conduct an interpretation which an objective examination of it does not justify. For completeness, I consider that the conduct fails both branches of the test in section 8. It does not amount to a course of conduct amounting to harassment. Even if it did, I do not find that Harwood intended to harass the pursuer, nor do I find that the conduct occurred in circumstances where it would appear to a reasonable person to amount to harassment. I reach these conclusions having regard to the same factors as have led me to conclude that the conduct did not amount to harassment. The pursuer's case must therefore fail, and the defenders' third to fifth pleas in law fall to be sustained.

127

Before leaving this topic, since the pursuer has proved that a number of the incidents founded upon by him did take place, it is perhaps instructive to compare what he has proved, with what was averred on Record. Several of the pursuer's averments, which may well have gone some way to establishing harassment, were not spoken to at all in evidence. In particular, the pursuer failed to prove the following: that Harwood continually complained about minor aspects of the pursuer's work; that he would constantly tell the pursuer to hurry up and accuse him of taking too long with jobs; that the pursuer would sometimes have to go home at lunchtime because of the harassment he had endured during the morning (not one of the incidents spoken to by the pursuer resulted in his having to go home at lunchtime); that "whenever" the pursuer was asked to carry out a stock count, and on reporting its outcome to Harwood, Harwood would respond "Oh don't tell your fucking lies!". Accordingly, the pursuer has proved significantly less than he offered to prove.

Loss/causation

128

In case I am wrong in holding that Harwood's conduct, or at least some of it, did not amount to harassment, I shall next deal with the various arguments presented on the question of damages. There are several areas of controversy between the parties. The first is the nature of the disorder which the pursuer suffered, although parties agree that he does have a recognised psychiatric condition. The second dispute is whether the pursuer is entitled to damages in respect of his disorder, there being two aspects to this, both concerning causation: has the pursuer proved that such incidents as might amount to harassment caused or materially contributed to his condition as a matter of fact; and, if he has, is he entitled as a matter of law to recover damages for that condition and other losses arising therefrom (consideration of which raises the questions of whether material contribution would be sufficient to establish liability, and whether only foreseeable losses are recoverable in claims under the Act). There is also an issue as to whether, if the pursuer is entitled to damages on the basis that harassment made a material contribution to his condition, the damages require to be apportioned. Finally, there are competing arguments as to solatium and wage loss, the latter largely turning on the date by which the pursuer was (or will be) fit to return to work.

Nature of the pursuer's disorder

129

All the medical experts who gave evidence were in agreement that the pursuer has a recognised psychiatric disorder. They were simply unable to agree what it was. As stated above, the real controversy between the parties was whether the pursuer was suffering from a depressive disorder in terms of DSM IV 296.22 (which broadly equates to ICD 10 F32 1) as claimed by Dr Rodger; or an adjustment disorder with mixed anxiety and depressed mood in terms of ICD 10 F43.22 as claimed by Dr Chiswick. DSM IV, published by the American Psychiatric Association, provides diagnostic criteria for mental disorders. ICD 10, which is a statistical classification of all types of disease published by the World Health Organisation, contains a section devoted to mental disorders. Each of these works ascribes a unique reference code to every recognised mental disorder. It was not suggested that one was better than the other, although DSM IV covers a wider range of symptoms and is more prescriptive than its ICD counterpart. Extracts from the manuals appear respectively as Nos. 5/ 22 to 5/25, 6/22, 6/23 and 6/36 of process.

130

Since the defenders accept that an adjustment disorder would be a condition for which the pursuer would be entitled to be awarded damages, if the other conditions of liability were satisfied, and since, as I have recorded, all the medical evidence is that the pursuer is suffering from a condition, I am not sure that this particular area of controversy between the parties has much practical importance beyond the fact that it has a bearing on the prognosis for the future, particularly since Dr Chiswick concedes that the dominant feature of the pursuer's adjustment disorder is mixed anxiety and depressed mood. If I were awarding damages to the pursuer, I would do so on the basis of the symptoms from which he has in fact suffered, rather than whether they were more appropriately categorised as a depressive disorder or as an adjustment disorder the dominant symptom of which was depressed mood. While I could embark upon an exhaustive discussion of the respective merits of the ICD and DSM classifications, and of the symptoms which must be present for a diagnosis of depressive disorder on the one hand, and adjustment disorder on the other, I do not consider that it is necessary or productive to do so. Having said all of that I do have to decide which of the expert opinions to accept, since I also have to decide the critical question of the pursuer's ability to work.

131

While I do not question Dr Rodger's expertise in any way, nor do I doubt that his experience and qualifications eminently qualify him to act as an expert witness, I have certain difficulties in accepting his opinion in the present case. The first problem he faces in offering his diagnosis of major depressive disorder to the court is that his reports contained little information about the pursuer's symptoms on which his diagnosis was based, this being compounded by Dr Rodger's inability to expand upon the symptoms in the course of his evidence, and further compounded by his not having retained his handwritten notes, as he initially thought he had. By contrast, Dr Chiswick's reports contain more detail. A consequence of this lack of detail is that Dr Rodger was unable, when being taken through the diagnostic criteria for DSM IV 296.22, to say very much more than that each of the criteria was met. Although Mr Kelly submitted that there is no reason to doubt Dr Rodger's honesty, which I fully accept, the fact remains that it is not possible to test Dr Rodger's opinion as to whether he was justified in concluding that each of the criteria was met, without knowledge of the symptoms of which the pursuer was complaining. For example, how can one know whether Dr Rodger's opinion that the pursuer was suffering from insomnia was justified without knowing more about the pursuer's precise sleeping patterns? Given that it is accepted that the classifications of mental disorder do not become a box ticking exercise, it is not unreasonable to expect a medical expert to be able to justify his opinion by pointing to the information on which it is based. As Lord President Cooper put it in Davie v Edinburgh Corp (No 2) 1953 SC 34, the duty of an expert is "to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of [his] conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert." It is still more difficult to accept Dr Rodger's opinion that the pursuer has suffered from a depressive disorder throughout the period since 2000, which would mean that there was not a single two month period when he was symptom free, when he is unable to provide any objective details by which that opinion may be judged. It is also on the face of it surprising that Dr Rodger was of the opinion that all of the criteria for DSM IV 296.22 (as set out in No 6/22 of process) were met, in the face of Dr Chiswick's assertion that that was unusual. Finally, Dr Rodger's failure to mention the pursuer's anger, which he conceded he would have considered worthy of mention had he known of it, (although it was referred to in Dr Chiswick's report, which Dr Rodger saw), goes some further way towards undermining the reliance which can be placed on the opinion which he has provided. Even allowing for the fact that Dr Rodger is perfectly entitled to attach less significance to the anger than did Dr Chiswick, the mere fact that he failed to elicit information from the pursuer about it, or to pick up on the information contained in Dr Chiswick's report - information which he conceded would at least have been worthy of mention - does, I am afraid, cast some doubt as to the thoroughness of the questions asked of the pursuer.

132

By contrast, Dr Chiswick presented as measured and thorough. He has undoubted expertise and an impressive and extensive publication and research record, number 6/37 of process. He gave his evidence in a measured manner which exuded an air of authority, and was not obviously out to promote his own point of view. Unlike Dr Rodger, he had obtained a full account of the pursuer's symptoms, and had been more adept at eliciting information from the pursuer about his anger. As Mr Kelly was not slow to point out, his evidence was not entirely immune from criticism. He initially thought that ideas of worthlessness and guilt were essential components of depressive disorders in terms of the ICD classification, but had to concede after being referred to the extract from ICD 10, No 6/23 of process, that they were not, nor had they been essential components in the 1994 version, nor were they essential in terms of DSM IV (see 6/22 of process). He also appeared to change, somewhat unilaterally and without a wholly convincing explanation, his assessment of the date by which he thought the pursuer was able to work. However, I accept Dr Chiswick's explanation, based on his long experience, that a feeling of guilt and self-blame is a very common feature of a depressive disorder and that for many clinicians it is what distinguishes depressive disorder from other types of depression. Even Dr Rodger acknowledged that it was unusual for a person with a major depressive disorder not to have feelings of guilt and given that a diagnosis of a depressive disorder depends on the skill and experience of the psychiatrist, rather than simply amounting to the completion of a check list, I do accept at the very least that the absence of feelings of guilt and worthlessness was something Dr Chiswick was entitled to take into account in deciding whether or not to diagnose a depressive disorder or an adjustment disorder. He also explained that it was not simply that the absence of such feelings was interesting, but that it should lead to a search for an explanation as to why the feelings were absent, and a consideration of other diagnoses. In my view, Dr Chiswick had gone into the matter much more deeply than anyone else involved in the case, and was able to provide a reasoned and logical explanation in support of his view of the importance of feelings of guilt and worthlessness. Accordingly, I am satisfied that what was undoubtedly an error on his part in relation to the wording of ICD 10 did not, in the context of his evidence taken as a whole, undermine his evidence or the weight which could be attached to it. On the whole, I found his reasoning to be cogent, persuasive and supported by the information he had elicited from the pursuer. In particular, I accept his opinion that anger to the extent experienced by the pursuer is not commonly found in persons suffering from a severe depressive disorder, since such persons lack motivation, including the motivation to become angry. Likewise, the pursuer's continued ability to have sexual relations, and to add to his family (and even to contemplate so to do), and his participation in other activities, even to a minor extent (such as exercising with weights) tended to belie the existence of a severe depressive disorder. The failure of his condition to respond to anti-depressant medication was also a relevant factor, coupled with the fact that had he had a treatment-resistant depressive disorder, a different course of treatment such as admission to hospital for further investigation, might have been followed. His complexity of thought in relation to his hopes and fears for his son (this being a reference to the pursuer's encouragement of his son to be less nice and more cynical, so as to avoid being subjected to the same sort of behaviour as the pursuer) was also a factor pointing to the absence of a major depressive disorder. Further, the description of adjustment disorder as set out in the excerpt from ICD 10 No 5/23 of process, spoken to by Dr Chiswick, fits squarely with the pursuer's symptoms: interference with functioning, arising in the period of adaptation to a stressful life event; vulnerability, viz, the pursuer's need to be liked, and the importance which he attached to his job; depressed mood, anxiety or worry; a feeling of inability to cope, plan ahead or continue in the present situation; and some degree of disability in the performance of daily routine.

133

For all the foregoing reasons, I prefer Dr Chiswick's evidence to that of Dr Rodger, and accordingly I have found in fact that the pursuer has suffered from an adjustment disorder as set out in ICD 10 F43.2. The nature of the pursuer's condition also has a bearing on his ability to work. I revert to this below in paragraph 169 where I discuss Dr Chiswick's evidence on this issue but suffice to say at present that having rejected Dr Rodger's evidence as to the nature of the pursuer's condition, it is but a short step also to reject his evidence that the pursuer is still unfit for work and unlikely ever to return to his previous level of employment.

Causation

134

The next issue is whether the pursuer would have proved that any conduct which might have been held to amount to harassment caused his adjustment disorder.

135

Before embarking upon a discussion of the evidence it is necessary to explore the legal principles underlying the approach to causation. The basic rule is that a pursuer can recover only in respect of damage caused by the wrongful act in question. The normal test is one of "but for" causation: the pursuer has to show that his losses would not have occurred but for the wrongful act. If he cannot show that, and the damage would have occurred anyway (eg, if he would not have worn a safety harness even if one had been provided: McWilliams v Arrol [1962] SC (HL) 70) then he will fail. In most circumstances, the "but for" test is the appropriate one, and cannot be relaxed: see, for example, Porter v Strathclyde Regional Council 1991 SLT 446 as explained by Muir v Cumbernauld and Kilsyth District Council 1993 SLT 287.

136

Situations may occur where the "but for" test is inadequate. Take the case of two hunters each of whom negligently fires a bullet into woods, both striking and killing the victim. It is proved that each bullet on its own would have been sufficient to cause death, although not which one did. In the case of neither bullet can it be said that the death would not have occurred but for that bullet. However, it would be repugnant to any legal system that both hunters should escape liability. Accordingly in certain circumstances Scots law resorts to the material contribution test. This has most frequently happened in cases involving not bullets, but noxious substances which have led to a disease. So, in Wardlaw v Bonnington Castings 1956 SC (HL) 26, the pursuer was in the course of his employment exposed to dust from two sources, pneumatic hammers and swing grinders. The employers were negligent in respect of the swing grinders but not the pneumatic hammers and the strict "but for" test was not satisfied. Had it not been for the swing grinders, the pursuer would still have suffered pneumoconiosis. However, the House of Lords held that a material contribution from the swing grinders was sufficient to establish liability. As Lord Hope put it in his article James McGhee - a second Mrs Donoghue 2003 CLJUK 587 at 596 to 597, everyone agrees that negligence which makes a material contribution to damage results in liability. A cause does not have to be the sole cause. It is enough that it is a necessary cause.

137

I do not agree with Ms Shand's submission that one can discern from Wardlaw that the material contribution test was applied in that case only because of the limitations of medical science. I accept that in the journey of the case through the Inner House, the Lord President did make reference to pneumoconiosis being a disease of which little was known and that the existing knowledge of it did not enable one to say when it began or how long it took to develop (see 1955 SC (HL) at p 339). However, in the House of Lords Lord Reid took as his starting point the premise that it was "obvious in principle that a pursuer...must prove not only negligence or breach of duty, but also that such fault caused or materially contributed to [emphasis added] his injury" (1956 SC (HL) 26 at p 31). He went on to say: "the medical evidence was that pneumoconiosis was caused by a gradual accumulation in the lungs of minute particles of silica inhaled over a period of years. That means, I think, that the disease is caused by the whole of the noxious material inhaled, and if that material comes from two sources it cannot be wholly attributed to material from one source or the other." Having analysed the evidence in that way, he then identified the real question in the case as being whether the dust from the swing grinders materially contributed to the disease (it having been conceded by the employers that the dust in the factory, where the pursuer worked, was the cause of the pneumoconiosis). What was a material contribution was a question of degree but, in Lord Reid's view, any contribution which did not fall within the exception de minimis non curat lex was material. I do not find anything within Lord Reid's reasoning which suggests that his reasoning was to any extent based on limitations of medical science pertaining to pneumoconiosis. On the contrary, the evidence allowed him to conclude that it was caused by a gradual accumulation over a period of years and that it was therefore caused by the whole of the dust inhaled. Far from deciding to apply a less stringent rule of causation because it was not, and could not be, known precisely how the disease had been caused, he proceeded on the basis that it was known that the whole dust inhaled had caused the disease. It is also evident that in referring to material contribution, Lord Reid clearly did not see himself as innovating on, or relaxing, the normal rule of "but for" causation. Similarly, the other judges in the House of Lords based their decision on what they saw as the uncontroversial principle that it was sufficient for the dust to be a "contributory cause of the disease"; and nothing in their judgments gives even a hint that they were founding upon a limitation of scientific knowledge. It has been said that the critical feature of the material contribution test is that it falls to be applied where there are two concurrent causes, both of which caused the resultant damage: Professor Thomson, Delictual Liability, 4^th edn., page 144.

138

As Professor Thomson also observes, the concept of factual causation was taken a great deal further by McGhee v National Coal Board 1973 SC (HL) 37. In that case, the pursuer was exposed to dust in the kiln where he worked and then had to cycle home unwashed. He contracted dermatitis, which the defenders accepted was caused by the dust. The breach of duty lay in the failure to provide showers. The medical evidence was that the risk of contracting dermatitis was materially increased by the pursuer's inability to wash before cycling home. However, it could not be shown how the dermatitis was contracted, and the medical experts could not and did not express any opinion either that the provision of showers would probably have prevented the dermatitis or even that the absence of showers was a contributory factor. The pursuer therefore failed both the "but for" test and the material contribution test. In finding for the pursuer, the House of Lords circumvented that problem by equating a material increase of risk with a material contribution. In McGhee, as in Wardlaw, it was known that the single cause of the disease was the dust in the work place, the difference in McGhee being that it was not possible to establish any factual causal link between the negligence and the disease, hence the need to resort to material increase in risk to bridge the gap. McGhee was approved in Fairchild v Glenhaven Funeral Services Ltd 2003 1AC 32, which took the concept of factual causation another stage further. In Fairchild, the claimant had worked for different employers at different times, and been negligently exposed to asbestos dust by each employer. He contracted mesothelioma as a result of his exposure to that dust, but due to limitations in scientific knowledge and understanding it could not be attributed to a specific time or period. It might have been caused by a single particle. Although the reasoning of each of their Lordships was different, the House of Lords suspended the normal "but for" test and held that it was sufficient to establish liability that there had been a material increase in the risk. Each employer was therefore liable.

139

Pausing there, although the issues raised by Fairchild are fascinating and could lead to a lengthy discussion and analysis, I do not consider that to be necessary in the present case, for the simple reason that, as Mr Kelly pointed out, the pursuer does not found upon an increase in risk. Rather, his case is fairly and squarely founded upon his having proved that such harassment as he suffered was the cause of his illness, or a material contributing factor.

140

The true issue raised by Fairchild in the context of the present case is whether, as the defenders sought to argue, it not only extended and explained McGhee but explained (and restricted) the ambit of the material contribution test as applied in Wardlaw, so that even the material contribution test can now be applied only where there are limits in medical understanding, and where the other conditions set out in their Lordships' speeches in Fairchild likewise apply. As Ms Shand put it: is the normal rule of causation "but for/material contribution" with the exception being "material increase in risk"? Or is it the case, as she contended, that the normal rule is "but for" with the exception being "material contribution and material increase in risk". Ms Shand referred to various passages in the speeches in Fairchild which, read literally, ostensibly lend some support to her argument. However, it seems to me that reading their speeches as a whole and in context, none of the judges intended to express the opinion that the material contribution test fell to be modified, or applied only in restricted factual circumstances. The whole argument was devoted to the absence of any established factual causal link between the dust and the disease. As Lord Nicholls put it at paragraph 21 of his speech, the crux of the argument in McGhee had been whether, since the pursuer could not prove a material contribution to his contracting dermatitis, it was enough to show that the breach had increased the risk of his contracting it; and so it would appear that he, for his part, considered that proof of a material contribution (as opposed to "but for" causation) would have sufficed. Lord Rodger analysed Wardlaw in paragraphs 127 to 129 of his speech. As he pointed out at paragraph 128, there was nothing new in the idea in Wardlaw that the pursuer required to prove no more than that the defenders' wrongful act had contributed to his injury, there being ample authority for the proposition in both Scots and English law. He reinforced this point in the following paragraph, where he said that the idea of liability based on wrongful conduct that had materially contributed to an injury was well established long before Wardlaw. Lord Rodger reverted to this theme in Barker v Corus UK Ltd 2006 2AC 572, where he found it unnecessary to repeat his analysis in Fairchild, but described the test as being considerably more generous than the "but for" test. However, I do not take from that comment that he considered that the material contribution test should be made less generous.

141

So, I do not find anything in the speeches in Fairchild to suggest that the House of Lords intended to modify the material contribution test as it had previously been applied. Further, as a matter of strict logic, it is difficult to see why material contribution should be bracketed with a material increase in risk, when the former has a clear causative effect and the latter has not. Indeed, the fact that the House of Lords treated material increase in risk as if it were a material contribution suggests that material contribution is generally sufficient to establish liability. Further, for the reasons set out above, it is in my view misinterpreting Wardlaw to say that it was based in some way on a limitation on scientific understanding, in contrast to both McGhee and Fairchild which did proceed on that basis. Finally, as already observed, Lord Hope, in the article referred to above, felt able to opine, after Fairchild, that "everyone agrees that material contribution is sufficient".

142

I therefore proceed on the basis that it would have been sufficient in the present case for the pursuer to establish, on a balance of probabilities, that such acts as constituted harassment either caused or materially contributed to his adjustment disorder. Since he is expressly not relying on the McGhee/Fairchild line of authority, this would entail his proving not merely that the risk of his suffering an adjustment disorder was materially increased, but that the harassment was at the very least a material contributory factor to that disorder. It is possible that there could be more than one concurrent contributory factor inasmuch as it is not difficult to comprehend that a psychiatric illness brought on by stress at work could be caused by more than one incident or event which contributed to that stress. In that sense, the case is not dissimilar to Wardlaw, with stress and adjustment disorder taking the place of dust and pneumoconiosis respectively. However, I do not consider that it is open to the court simply to draw that analogy (which medically may or may not be well founded) without some evidential basis for doing so. Unlike a depressive disorder, an adjustment disorder always has a specific stressor or stressors. It may be caused by a single factor or incident. It may be possible to tell, in any given case, when and why it developed. Medical evidence as to causation is essential.

143

For the pursuer to have proved that such incidents as amounted to harassment caused or contributed to his disorder, he would therefore have had to prove that it was those incidents, and not other incidents or factors, which caused or contributed to his disorder. An extraneous factor could have consisted either of an event outside work (eg, something stressful at home); or something which happened at work but which was not harassment; or something which happened after he left work on 2 October 2000. If, on the evidence, there are various possible causes of the pursuer's disorder, each equally likely, then he cannot succeed: Wilsher v Essex Area Health Authority 1988 1AC 1074. Although that case has to be treated with some caution since, at least in its treatment of McGhee, it was departed from by the House of Lords in Fairchild, elements of the reasoning in the case are instructive and unaffected by Fairchild. In Wilsher, the plaintiff had suffered from a condition known as RLF, which had several different possible causes. Lord Bridge of Harrow, at page 1090, endorsed the reasoning of Sir Nicholas Browne-Wilkinson VC in the Court of Appeal, where he distinguished McGhee on the basis that in that case there was only possible agent which could have caused the dermatitis, viz brick dust, whereas in Wilsher there were a number of different agents which could have caused the RLF, of which the negligent acts or omissions was only one. There could be no presumption that it was one of those factors, rather than any of the others, which had caused or contributed to the RLF.

144

It is true that in Wardlaw the House of Lords drew an inference that the dust from the swing grinders had materially contributed to the disease, rather than proceeding upon medical evidence to that specific effect. However, there were at least four distinctive features about the facts in Wardlaw. First, there was no difference in character between the dust from the hammers and the dust from the swing grinders, the only difference being that one was negligently emitted and the other not. Second, it was conceded and therefore proved that the whole dust was the cause of the pursuer's illness. Third, both sets of dust operated upon the pursuer concurrently. Fourth, there was evidence before the court that the illness had developed over a period of time. In these circumstances it is easy to see why the court could infer that the negligent dust had materially contributed to the pursuer's illness. However, as Wilsher shows, where there is no single agent which causes a claimant's illness or condition, no such inference can be drawn. So, where there is a breach of duty but other factors are also present, any one of which might have been a sole cause, it will not be possible to infer or presume that the breach of duty made a material contribution. A claimant must therefore discharge the onus of proof on him by leading evidence that the breach of duty on which he founds, rather than any competing potential cause, was either the sole cause of his injury, or a material contributory factor.

145

Turning to the facts in the present case, there were several incidents or events which were possible causes of the pursuer's disorder. The defenders argue that they cannot all be assumed to be of the same character in the absence of evidence to that effect: for example, how does one equate a failure to respond to an email, with a sarcastic remark or being sworn at? The defenders also founded upon the occasional reference in the evidence to other things happening which bothered the pursuer but which did not appear on Record, and to things happening outwith work which also bothered him. So, they say, the pursuer has failed to prove that any of the incidents founded upon as constituting harassment, caused or contributed to his disorder.

146

The pursuer's argument, which has a certain superficial attractive simplicity, goes roughly as follows. The doctors attributed his condition to whatever happened at work, which the pursuer described to them as harassment or bullying. The doctors of course could not say whether what happened at work was harassment but if the court held that it was, then a sufficient causal link was established between the conduct and the condition. Even if other things had also happened to the pursuer, which had also caused his illness, the harassment had materially contributed to it. As thus expressed, I do not see how this argument can be correct, having regard to the principles derived from the cases to which I have referred. In particular, the last part of the submission cannot be correct, having regard to Wilsher. It is not sufficient for the doctors simply to attribute the pursuer's illness to what happened at work, when what happened at work was so different in character. It would not have been sufficient for Mr Wardlaw to have led evidence simply attributing his pneumoconiosis to "conditions" at work. Nor is it even enough for the doctors to attribute the pursuer's illness to "bullying" or "harassment", in the absence of evidence which would entitle the court to conclude that what the pursuer had in mind when he complained of bullying to the doctors was the same conduct which in fact was held to constitute bullying. Suppose the pursuer complained to the doctors of incidents A, B and C and that the doctors agree that those incidents together caused his condition. If the court finds that A, B and C constitute harassment then there is no problem. However, if the incidents found to constitute harassment are X, Y and Z, on which the doctors have not commented at all, then the necessary evidential link between the treatment of the pursuer and his condition is undoubtedly lacking. That is so, whether the court simply finds that A, B and C did not occur at all, or whether it finds that they did occur, but did not constitute harassment. The issue becomes more complex if some incidents from each group are proved to have occurred and to have been harassment - eg, A and X.

147

That is in essence the problem faced by the pursuer in that he has proved a number of incidents, some of which in my view could never have formed part of any course of conduct amounting to harassment, even if other incidents did, whereas the doctors' opinion on causation is largely predicated on incidents which were not proved. Dealing with the latter point first, there is insufficient evidence from Dr Roger and Dr Dickson to link the pursuer's condition with any incidents spoken to by the pursuer in evidence which together might be held to amount to harassment. Dr Rodger recorded in his report that the pursuer had spoken of incidents where Harwood "repeatedly harassed, criticised and undermined him often in front of other colleagues...that Harwood was playing mind games with him, telling him to do things but not to inform the senior manager, Mr Gibson." Pausing there, the reference to repeated harassment and criticism is clearly too vague to let one know what behaviour of Harwood the pursuer had in mind. The court could not possibly infer from that evidence that it was the same incidents referred to by Dr Rodger as were found to have constituted any presumed harassment. There was no evidence of Harwood playing mind games. Moreover, Dr Rodger also gave evidence that he did not recall the pursuer having spoken to him about the particular incidents that the pursuer gave evidence about in Court (5/119 A to 5/124 C), and whether that was because the pursuer complained about other incidents, or because Dr Rodger simply did not record the details of what he was told, either way the pursuer is not in a position to show that the events which he complained of were the same as those which would have been held to amount to harassment, and consequently Dr Rodger was unable to say, and did not claim to be able to say, that any of the particular incidents about which the pursuer gave evidence caused or even materially contributed to any recognised psychiatric illness suffered by the pursuer. Dr Dickson's evidence, at least regarding the cause of the pursuer's disorder, is similarly bland.

148

This difficulty is exacerbated by the fact that the pursuer was, or says he was bothered by other things, such as the email, and the leaving of work, which I have found as a matter of fact were not targeted at him and could not amount to harassment. For all we know, the pursuer might have had those things in mind when speaking to Drs Roger and Dickson. The problem becomes still more acute when one asks what the position would be were it to be held that only two of the ten incidents founded upon amounted to harassment, and the other eight did not. For completeness, I think that the other points made by the defenders are less of an issue. Incidents for which there is no Record must simply be left out of account entirely, although that does not remove from the pursuer the onus of proving that what did happen was a course of conduct amounting to harassment and caused his disorder. Bearing in mind that it is the course of conduct which must have the causative effect, it would be immaterial if there were also other incidents within that course of conduct which did not form part of the pursuer's case on Record. Similarly, I consider the reference to incidents outwith work to be something of a red herring, and to amount to no more than another way of articulating that the pursuer must prove that his condition was caused by harassment at work.

149

However, Dr Chiswick's evidence was slightly more complex. His position in summary was that the pursuer's adjustment disorder was caused by three factors: whatever happened at work; the failure of the grievance procedure (which he mistakenly referred to on occasion as the industrial tribunal); and the stressor of being without employment. He did therefore give evidence that there was a stressor within the workplace, and he accepted, in the pursuer's favour, that the pursuer displayed some symptoms in July 2000 so that the stressor at work would therefore be the first factor to have causative effect. He did point out, at 10/107 to 10/108 the limitations in his knowledge of what the stressor at work was: "...it's difficult for me to say what exactly are the consequences [of the stressor] since I don't really know the precise detailed nature of the stressor other than to say problems in his employment followed by loss of his employment ...followed by financial problems and family problems...and involvement in the litigation process...I don't think I am informed enough to say whether they are all the consequences of the first stressor because I don't know in detail what the stressor was, other than in broad terms." He also said that by losing his employment, he was referring to the pursuer's walking out in October 2000. The crucial point I take from this evidence is that Dr Chiswick therefore linked the pursuer's condition with events which had occurred by July and with the incident in October 2000 which directly led to the pursuer leaving his employment and not returning.

150

Dr Chiswick also recorded the incidents at work of which the pursuer complained. These are listed in his report 5/18 of process as:

1

Complaints about handwriting.

2

Using foul language to the pursuer - "f-ing this and f-ing that".

3

"I had to work through my breaks to keep him happy."

4

"If I was working on my PC he would say "I'm not wanting you to f-ing do that."

5

"He would make up things I hadn't done."

6

"He had an abusive attitude and singled me out for blame and unfair criticism."

151

Of these, the fourth and fifth complaints have not been substantiated. There was no evidence that Harwood stopped the pursuer from working on his PC. Nor was there any evidence at all of Harwood making up things that the pursuer hadn't done. There was some evidence in support of the third incident, namely, the tea-break incident, albeit it was merely a one-off. There was evidence of complaints about handwriting, but I have been unable to find that these were unfair or unjustified. There was evidence of foul language, and there was also evidence of criticism, albeit again I have found that it was not unfair. However, for present purposes, I must assume that I am wrong in that. On that assumption, some of incidents listed by Dr Chiswick were proved by the pursuer, although again the sixth complaint is somewhat vague.

152

Dr Chiswick also gave evidence that the leaving of employment in October 2000 was itself a contributory factor which was linked to what had gone before. Dr Chiswick therefore linked the leaving of employment to a course of conduct which included the incident in October 2000.

153

I do not find this issue at all easy to discuss on a hypothetical basis, since so much depends on precisely how many of the incidents, and which ones, might be deemed to form part of any harassment. However, drawing all of the above together, I have come to the view that if I am wrong in holding that there was not a course of conduct amounting to harassment and also in holding that the incident in October 2000 did not amount to part of that course of conduct, then on balance I would have found, on the basis of Dr Chiswick's evidence, that there was sufficient evidence of a link between Harwood's conduct and the pursuer's resulting illness. I reach this view on the basis that the pursuer has merely to show that a course of conduct amounting to harassment (rather than specific incidents) had some causative effect. The pursuer's reaction to the incident in October was fuelled by his perception of what had gone on before, and taking his own evidence together with that of Dr Chiswick that the incident in October had some causative effect, then there would have been evidence of a course of conduct culminating in the incident in October, which at the very least made a material contribution to his disorder. On the hypothesis that the October incident formed part of the assumed harassment I would have reached this view even if not all of the other incidents were part of the supposed harassment.

154

However, the position becomes much more difficult for the pursuer if I am correct in holding that the incident in October did not form part of any harassment, even if two or more of the previous incidents did. Then, having regard to the above discussion, even on the basis of Dr Chiswick's evidence, I would have held that there was insufficient evidence of material contribution. In other words, I consider that it is crucial for the pursuer's case, standing the state of the evidence on causation, to establish that the incident in October formed part of the harassment. Without that, I would not have considered that a sufficient causal link between the harassment and the illness had been proved. I should conclude this discussion by pointing out that the pursuer might well have foreseen this problem, which was after all highlighted by Lord Justice Kennedy Banks v Ablex [2005] EWCA Civ 173 in the passage quoted above[14]. He could have pre-empted it by taking either of the courses suggested by the defenders in submissions, or indeed, by putting various hypothetical scenarios to the doctors, but he took none of those courses. As things stand, and on the view I have taken that the October incident could not on any view have formed part of any course of conduct amounting to harassment, I have been unable to find in fact that any course of conduct, or any of the incidents founded on by the pursuer, caused or contributed to the pursuer's disorder[15].

Apportionment

155

If I had held that there had been a material contribution, I would have awarded damages without apportioning them to any extent. In this regard, insofar as Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 was relied upon by the defenders, I prefer the reasoning of Lord Justice Clark to that of Lord Justice Stuart-Smith. This whole issue of apportionment was discussed by Lord Uist in the recent case of Wright v Stoddard International Plc 2008 Rep L.R. 2. In paragraphs 124 to 149 of his judgment, Lord Uist sets out compelling reasoning as to why no apportionment should be carried out in Scots law in cases where a defender's tortuous act has made a material contribution to the injury suffered by the pursuer. The precise issue in that case was perhaps not the same as that here, since Lord Uist stated at paragraph 136 that the question for him to resolve was whether it was competent to apportion damages where there has been no finding of joint and several liability against the defender and another party who had also made a material contribution to the injury or illness, whereas here there is no suggestion that another party has contributed to the pursuer's condition. However, the applicable principles remain the same, and I respectfully adopt Lord Uist's reasoning and conclusion. Accordingly, I would have declined to follow Holtby and for that matter the dicta of Lady Justice Hale in Sutherland v Hatton [2002] EWCA Civ 76, 2002 All ER 1 at paragraphs 40 and 41.

Foreseeability

156

The starting point when considering what damages are recoverable for harassment is the 1997 Act. Section 8 provides:

...(5) In an action of harassment the court may, without prejudice to any other remedies which it may grant-

(a) award damages;

...

(6) The damages which may be awarded in an action of harassment include damages for any anxiety caused by the harassment and any financial loss resulting from it.

157

As Lord Nicholls said in Majrowski (at paragraph 22), the ordinary principles of causation and mitigation and the like apply to claims under the Act. A fuller explanation of the conceptual thinking underlying this observation is to be found in Lord Nicholls' speech in Kuwait Airways Corpn. v Iraqui Airways Co (Nos. 4 and 5) [2002] 2 AC 883.at paragraphs 69 to 71. There, he referred to the commonly accepted approach that the extent of a defendant's liability for the plaintiff's loss in cases of tort "calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple "but for" test, is predominantly a factual inquiry...The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment ("ought to be held liable"). Written large, the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are interchangeable)...the inquiry is whether the plaintiff's harm or loss should be within the scope of the defendant's liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause, or because the loss was the product of an intervening cause. The defendant's responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this...In most cases, how far the responsibility of the defendant ought fairly to extend evokes an immediate intuitive response. This is informed common sense by another name. Usually, there is no difficulty in selecting, from the sequence of events leading to the plaintiff's loss, the happening which should be regarded as the cause of the loss for the purpose of allocating responsibility. In other cases, when the outcome of the second inquiry is not obvious, it is of crucial importance to identify the purpose of the relevant cause of action and the nature and scope of the defendant's obligation in the particular circumstances. What was the ambit of the defendant's duty? In respect of what risks or damage does the law seek to afford protection by means of the particular tort?"

158

I have set out the foregoing passage from Kuwait Airways at some length as it is a lucid exposition of the task for the court, and the thought processes which must be applied, in considering the extent to which a person is liable for losses caused by harassment. It is not enough simply to say that certain losses were caused by harassment, since that is merely the first, or factual, inquiry. In recognition of the fact that the law must always draw a line in the sand somewhere, and that not every factual loss resulting from a wrong will necessarily be recoverable, the second (or value judgment) inquiry then requires to be undertaken. As Lord Nicholls went on to say, and as was recognised by all three judges in Essa v Laing [2004] EWCA Civ 2, there are two competing means of limiting the losses which the claimant may recover. Either, the losses may be restricted to those which are foreseeable; or they may be restricted to those which arise naturally and directly from the wrong. It is generally accepted that the foreseeability test is the more restrictive of the two tests, and it is also fair to say that it is the easier of the two to apply consistently.

159

Accordingly, it is clear - and must in my view follow from the underlying principles - that in saying that the ordinary principles of causation apply to claims under the 1997 Act, Lord Nicholls must have had in mind that those principles would include principles of remoteness.

160

It further follows that in considering the extent of recoverable losses in claims under the 1997 Act the question arises as to whether the foreseeability test or the natural and direct loss test is to be applied. It then becomes a question of statutory interpretation as to which test is to be applied. Having regard to the principles expounded by Lord Nicholls, I do not fully go along with one of Lord Emslie's comments in Robertson (where the matter was plainly less extensively argued than before me) that there is no basis for grafting restrictive common law rules on to a free standing statutory regime, since it respectfully seems to me that to put the matter in that way begs the question as to what rules of causation are to be applied. However, I agree that there is no basis for grafting a requirement of foreseeability at the stage of inquiring whether a wrong has been committed. Cases such as Rorrison v West Lothian Council and Anr 2000 SCLR 245 and White or Frost v Chief Constable of South Yorkshire Police 1999 2 AC 455 which dealt with the question of whether a duty of care was owed to the claimant, are therefore fundamentally irrelevant to the present situation since the pursuer has crossed that threshold. Foreseeability can of course also arise at the stage of considering remoteness and it is in this context that it may still be relevant in a claim under the statutory regime. In deciding whether it is relevant or not, the court must construe the terms of section 8(6) of the Act, and have regard to the underlying purpose of the legislation. Lord Emslie, of course, did also see the issue as one of construction, and pointed out that "the terms of section 8(6) are inclusive and non-exhaustive, and cannot fairly be read as setting some kind of statutory maximum" which is an indication that he did not consider that foreseeability was relevant even at the causation stage. I note that the section permits recovery for "any" anxiety caused by the harassment and "any" financial loss resulting from it, which likewise suggests to me that any loss may be recovered whether foreseeable or not.

161

Although the legislation under consideration is different, the court in Essa faced the same problem as do I, and likewise saw the issue as one of construction. The majority of the court in that case held that the tort of racial discrimination did not require a foreseeability test to be applied at the causation stage. I prefer the reasoning and conclusion of the majority judgments to those of Lord Justice Rix, but either way the decision itself, as opposed to the reasoning applied, is of little consequence given that the terms of each statute are different. It is worthy of note that the terms of the 1997 Act were cited in support of the argument that there was no requirement of foreseeability in that case, and, for what it is worth, none of the judges suggested that foreseeability was a requirement of the 1997 Act.

162

I also take into account that the nature of harassment, which includes although is not limited to, stalking, and the focus on the victim - "every individual has a right not to be free from harassment" - provide very good policy reasons as to why Parliament would have intended that an individual who is harassed should be entitled to recover all his direct losses, not simply those which are foreseeable, from the harasser.

163

I have therefore reached the view that on a proper construction of section 8(6) the losses recoverable for harassment are not restricted to foreseeable losses but include all losses which arise naturally and directly from the harassment.

164

If I am wrong in that view, the question which then arises for consideration, as it did in Essa, is whether, assuming that foreseeability is a requirement, the requirement is met by holding that psychiatric injury is the same type of injury as anxiety, given that section 8 specifically permits the recovery of damages for anxiety. In Essa, Lord Justice Rix also dissented from the majority on this point. Again, I prefer the reasoning of the majority.

165

While it is true that the law treats psychiatric harm differently from anxiety, that is in the context of generally disallowing damages for the latter with the result that a claimant who sues for mental harm only must generally show at the very least that he has suffered from a recognised psychiatric condition. However, anxiety and psychiatric harm are both in my view conditions with a similar aetiology, both sharing similar symptoms but with one being more serious than the other. To paraphrase Lord Mafadyen in Gillies v Lynch 2002 SLT 1420 it seems quite artificial to attempt to draw a borderline between anxiety and psychiatric illness caused by harassment. If the victim's emotional reaction to the harassment is of such a degree as to amount to psychiatric illness there is no logic to treating it differently from anxiety. Or, this time to paraphrase Ms Shand, in a slightly different context: the victim of harassment is not entitled to damages for a label, but for what he has actually suffered. To reinforce this point, it makes no sense at all that a person who has suffered from very severe but unforeseeable anxiety (which might well have caused him to give up his job thereby sustaining financial loss) should be entitled to damages without the need to establish foreseeability; but that someone whose anxiety is a degree or so worse, meriting the label of psychiatric disorder (even a mild one) should not. I appreciate that in Ross v Pryde 2004 Rep LR 129 Temporary Judge R F MacDonald, QC took a different view from Lord Macfadyen. Both cases were dealing with a different issue from that in the present case (namely, whether averments of psychiatric illness were relevant in a claim for grief and sorrow brought under section 1(4)(b) of the Damages (Scotland) Act 1976) but at least when applied to the circumstances of the present case, I prefer the reasoning of Lord Macfadyen. See also Gillies v Lynch (No 2) 2005 Rep LR 9, in which Lord Macfadyen noted the contrary view reached in Ross v Pryde, and also recorded that counsel for the defenders disavowed any intention to return to that question. It is a non sequitur to say that because the law recognises a distinction between anxiety and psychiatric harm in the context of disallowing claims for the former, that same distinction must rigidly be observed even where a claim for anxiety has expressly been permitted by statute.

166

Accordingly, if I had held that only foreseeable losses were recoverable, I would have held that damages for psychiatric injury were nonetheless recoverable. Loss of earnings, being a foreseeable consequence of psychiatric injury, would likewise have been recoverable.

167

In summary, had I found for the pursuer on liability and on causation, I would have held him entitled to recover in respect of both his psychiatric injury and his loss of earnings, primarily on the ground that such losses are recoverable whether foreseeable or not; but if that is wrong, on the basis that those losses are in effect deemed foreseeable by the terms of the Act.

Quantum

168

Had I found in favour of the pursuer that his adjustment disorder had been caused by harassment, I would have awarded him solatium of £15,000 on the basis that his symptoms closely matched those of the pursuer in Fraser, and were less serious than those of the pursuers in Avis v CCG (UK) Limited, McMahon v British Railways Board 1995 SLT 590 and Collins v First Quench Retailing Ltd 2003 SLT 1220. In the latter two cases, post traumatic stress disorder was also present. The pursuer suffered from a disorder of sufficient severity to cause him to lose interest in most of his previous activities for a period of time, and to be incapable of working. Although I have found him to be suffering from an adjustment disorder, rather than a depressive one, the predominant symptom was a feeling of depressed mood. Interest on that sum at 4% per annum calculated to 4 September 2009 would have amounted to £5,360 (appropriately rounded). Total solatium including interest would have been £20,360. For completeness, I do not accept the defenders' submission that the number of incidents is relevant, since damages are awarded having regard to the effect on the pursuer of a course of conduct, rather than on the gravity of that conduct (in the same way that damages awarded following, say, a road traffic accident are assessed by reference to the severity of the injuries, rather than the degree of negligence involved).

169

As for wage loss, I would have accepted the evidence of Dr Chiswick that although the pursuer was initially unfit to work by reason of his adjustment disorder, at some stage down the line he chose to adopt a lifestyle of not working although fit to do so. In reaching this conclusion, I have regard to the various factors relied upon by Dr Chiswick such as the pursuer's demonstrating a level of motivation in a variety of activities inconsistent with an inability to work. Not least among these is the pursuer's level of anger, which I accept is now his principal complaint. It was clear that Dr Chiswick's finding that anger was the pursuers' principal complaint was largely based on his examination, and questioning of, the pursuer. I accept Dr Chiswick's evidence that anger is inconsistent with a depressive disorder of the severity which the pursuer claims. I also take into account that the pursuer might have done more to assist himself to return to work, for example, by attending the defenders' occupational health department. His unwillingness to do so, or to respond favourably to Dr Dickson's suggestion that he attempt to return to work, is indicative of a state of unwillingness rather than inability. It is a more difficult question as to when the pursuer ceased to be unfit to work. In his evidence, Dr Chiswick offered the opinion that the pursuer was probably able to work within about three years. However, he was not prescriptive as to the precise date when the pursuer would have become fit for work. I also think it is difficult for Dr Chiswick to escape the opinion which he offered in his report No. 5/18 of process that the pursuer was unfit to work at that time, that is in early 2004. Having regard to the whole of Dr Chiswick's evidence, I have concluded that the pursuer was unfit to work for a period of four years, namely until about 2 October 2004. Since that date, although he may have continued to suffer from an adjustment disorder to a degree it is neither as disabling as the pursuer claimed in his own evidence nor of sufficient severity to prevent him from working.

170

The parties had competing calculations of the pursuer's average weekly wage, the pursuer arriving at a figure of £225, based on an average over the 13 week period to 6 July 2000. The defenders' corresponding figure was £216, based on an average from 11 May 2000 to 2 October 2000 but excluding weeks which were higher or lower than normal. There seems to be some justification for the defenders' assertion that the figures appear to show that the pursuer switched to day shift after 4 May 2000, since his typical pay then decreased. However, I do not think it appropriate to exclude figures from the calculation simply because they are lower or higher. Any increases or reductions from week to week should be smoothed out by taking an average. So, in calculating the average net weekly wage I have taken into account all earnings from and including 11 May 2000, excluding only weeks when the pursuer received SSP or holiday pay (29 August 200). That gives an average weekly wage of £220, as it happens almost exactly mid-way between the parties' competing figures, which equates to an annual loss of £11,440. Why parties could not agree this matter, I do not know. However, it is agreed that the pursuer in fact received £11,275.39 in wages and statutory sick pay. Wage loss for four years would therefore have amounted to £45,760 from which the agreed sum of £11,275.39 would have fallen to be deducted. I would have awarded interest on the resultant figure of £34,484.61 at the full rate of 8% per annum from the date of the pursuer's being fit to return to work, say 2 October 2004, to date, which would have amounted to a further £4,505.

171

In total, therefore, had I found for the pursuer I would have awarded him a total of £59,349.61 plus interest on that sum at 8% per annum from the date of judgement.

Conclusion

172

For the reasons stated, I have sustained the defenders' third to fifth pleas in law, and granted decree of absolvitor in their favour.

173

I have fixed a hearing on expenses for Thursday 15 October 2009 at 10.00am.