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Fraser v State Hospitals Board for Scotland

21 September 2000
The issues

Stress

The facts

The pursuer worked at the state hospital, Carstairs which was a special hospital holding people convicted of criminal offences. He became depressed as a consequence of the combination of the way in which he was treated by the defenders i.e. suspension from his ward duties, disciplinary proceedings, accusations of misconduct and the imposition of a rigorous routine.

The decision

1. The employer had a duty to take reasonable care for the safety of his employees.

2. There were two categories of case in the context of psychiatric injury:

(a) Primary victim cases.

Lord Carloway accepted the comments of Coleman J in Walker in the extent that employers duty extended to a duty not to cause the employee psychiatric damage by the volume or character of work which the employee is required to perform. Lord Carloway appeared to be accepting the concession made in the case of Robertson that the relationship of employer and employee created a relationship of proximity sufficient for there to be a duty not to cause the employee to sustain direct physical or psychiatric injury. There was no reason why the general principle relative to the avoidance of the risk of injury should become restricted to physical injury.

(b) Secondary victim cases.

Carloway did not regard these cases as having any material bearing on the current issue. They were dealing with a quite different subject namely the extent to which the law permitted recovery for psychiatric injury to a person as a result of seeing, hearing or learning about the death of or injury to others. In Frost the Court rejected the argument that the mere relationship of employer employee established a relationship of primary victim in respect of the Police Officers. Frost was not relevant in Fraser because the Claimant was a primary victim. This at first instance seems circular. However, the point in retrospect is a simple one – the injury in the case of a stress claim is to the Claimant and is “direct” and is not in relation to a tortious act committed against another party. At least I think this is what the answer is.

On foreseeability Lord Carloway had some robust comments to make “it is a duty only to take reasonable care to prevent psychiatric harm. It is not to protect an employee from unpleasant emotions such as grief, anger and resentment or normal human condition such as anxiety or stress. These do not involve any form of “injury at all”.

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