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Rorrison v West Lothian College and Lothian Regional Council, Court of Session, 21 July 1999

21 September 2000
The issues

Stress

The facts

Pursuer was a nurse aged 42 working at West Lothian College. She was employed as a Welfare Auxiliary and her duties related to first aid. She reported to a Mr Smith who was the College Registrar or to Margaret Henning. In November 1992 Marie- Christine Andrews began work as Personnel Officer. In December 1992 Andrews summoned the pursuer to her Office. In the Office was the Safety Officer and the Trade Union Health and Safety representative. The pursuer was marched to the first aid room by Andrews and the other two and felt humiliated as she walked past other staff. She was ordered to open the first aid cabinet and justify its contents. She was criticised and humiliated by Andrews and the Trade Union Health and Safety representative for keeping asthma inhalers in the cabinet – something previously authorised by Smith. Muir was shouting and pacing. Andrews repeated Muir’s words in a patronising manner. The pursuer felt trapped, threatened and embarrassed. As a consequence the pursuer was upset, had a severe headache and was unable to sleep. Some weeks thereafter Andrews took charge of what was in the cabinet and told the pursuer that it was not to contain certain items. The pursuer was confused as no explanation was given.

She began to have headaches and feelings of dizziness. She was diagnosed by her GP as having anxiety/depression for six weeks between February and April 1993 and was referred to Community Psychiatric Nurse. In March 1993 the pursuer wrote to Andrews expressing concern about the location of the first aid room and stated that she was anxious, upset and angry and feeling pressure and frustration at her work situation. She received a reply stating no other place was available for the first aid room and the pursuer on her return was to work in Personnel when not carrying out welfare duties. The pursuer was led to believe that the accommodation in the Personnel Office was temporary. On return to work she was given clerical and secretarial work tasks in addition to welfare duties. She was treated as an Office Junior. Dirty mugs were put on her desk and she was instructed how to wash them by Andrews. Andrews would make gestures suggesting that the pursuer was stupid. The staff assumed she was no longer employed as a Welfare Auxiliary. Her professional integrity was undermined by Andrews. A campaign of criticism began by Andrews. The Claimant was subjected to timing and interrogation and harassment in the course of her work. In March 1994 she was shown a new job description with the title Clerical Assistant / Welfare Auxiliary and her duties specified were mostly clerical. She was given thirty minutes to accept or reject the new description and it was implied that there would be no job for her if she did not accept it. As a result of this treatment during the latter part of 1993 she began to experience further psychological distress. The symptoms continued with increasing severity throughout 1994. In March 1994 she felt dizzy and unwell at work and was taken to the Health Centre where she was diagnosed as having stress and anxiety. The complaints can be summarised as:-

1. Unjustified criticism resulting in self-doubt, loss of confidence, anxiety.

2. Pressure on time posed by Andrews resulting in stress and anxiety.

3. A conflict between her understanding of her role and Andrews understanding resulting in self doubt, loss of confidence, self doubt and anxiety.

Pursuers case was based on the vicarious liability of the Defender for Andrews.

The decision

The pursuer would recover only if she had sustained psychiatric injury in the form of a recognised psychiatric illness. See White -v- Chief Constable of South Yorkshire. In this case it had been conceded by Counsel for the pursuer that there was no suggestion of a psychiatric illness. Counsel for the pursuer argued that no psychiatric illness was necessary. It was however in any event sufficient for there to be a nervous breakdown as this was a concept accepted by psychiatric opinion and it was suggested that this was sufficient – see Walker -v- Northumberland County Council. As far as the pleadings were concerned the averments of damage were of “emotional symptoms which constitute a psychological damage”, “psychological distress”, “psychological treatment” and “depression” – the latter however does not appear to mean clinical depression as distinct from low mood and it was not suggested by the pursers Counsel otherwise. The reference to a nervous breakdown in these circumstances was not fair notice of an intention to need evidence that the pursuer had suffered from a recognised psychiatric illness. There was no reference anywhere in the pleadings to her having suffered psychiatric illness or to her ever having been treated by a Psychiatrist. Walker was irrelevant, firstly because it contained no discussion of the point now an issue and secondly because there was evidence in that case from psychiatrists to the effect that the Claimant was suffering from a psychiatric illness. In this case there was no suggestion that she had ever been diagnosed from a psychiatrist as suffering from a recognised psychiatric disorder and there was no suggestion that the condition was recognised by a psychiatrist or body of psychiatric opinion as to constituting a psychiatric disorder. It followed that the act based on negligence could not succeed and would be dismissed.

Note the remainder of the case was obiter but contained a useful summary of other psychiatric claims.

Lord Reed notes that Alcock, the Chief Constable of South Yorkshire (Lord Ackner) laid down the proposition that although the risk of psychiatric illness was reasonably foreseeable the law gave no damages if the psychiatric injuries were not induced by shock. “Psychiatric illness caused in other ways %u2026. attracts no damages”. The requirement of “shock” did not appear to have been referred to earlier cases in England and Wales although was in practice a feature of such cases. The point arose in Alcock because the Claimant had not directly witnessed the plight of their relatives and had suffered not “immediately created nervous shock” but “a more elongated and to some extent retrospective process” (See Lord Oliver). Under those circumstances there was not sufficient proximity between the Plaintiff and the Defendant to create a duty of care. In all costs the Court was concerned only with secondary victims i.e. those who had suffered psychiatric illness as a result of a death injury or impairment of another. Since Alcock there had been a “growth area” concerning psychiatric illness induced through stress at work – see Johnston -v- Bloomsbury Health Authority and Walker -v- Northumberland County Council and Ward -v- Scotrail Railways Ltd. The existence of an implied duty of care to protect an employee from such consequences from stress, depression and anxiety as a result of his work was taken for granted in the argument. The issue was whether such a duty was qualified by the express terms of the particular contract in question. The Court Appeal however appeared to have accepted the employer’s general duties that gave reasonable care not to injure his employee’s health extended to an injury to mental health which was the forseeable result of excessive working hours.

In Walker Coleman J took as his starting point the employer’s duty to take reasonable care for the safety of his employees. He observed that there was no logical reason why the issue of psychiatric damage should be excluded from the scope of an employer’s duty of care. (But see Lord Steyn, White -v Chief Constable of South Yorkshire “It is a non sequitur to say that because an employer is under a duty to an employee not to cause him physical injury, the employer should as a necessary consequence of that duty (of which there is no breach) be under a duty not to cause the employee psychiatric injury”). See also Lord Hoffman. Lord Reed noted that Walker turned on the factual circumstances relevant to foreseeability i.e. the two breakdown test. In other words as a result of the second breakdown the employer knew that the plaintiff was unusually vulnerable too psychiatric injury and that there was therefore a material risk of such damage of steps not taken to protect the plaintiff. In the case in question Lord Reed could find nothing which if proved would establish that Andrews ought to have foreseen that the pursuer was under a material risk sustaining a psychiatric disorder and consequence of her behaviour towards her. They might have foreseen that she would be unsatisfied, frustrated and embarrassed and upset “but that is a far cry from suffering a psychiatric disorder”.

“Many if not all employers are liable to suffer those emotions and others mentioned in the present case such as stress, anxiety, loss of confidence and low mood. To suffer such emotions from time to time, not least problems at work, is a normal part of human experience. It is only if they are liable to be suffered to such a pathological degree as to constitute a psychiatric disorder that a duty of care to protect against them can arise; and that is not a reasonable foreseeable occurrence unless there is some specific reason to foresee it in a particular case”

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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