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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mather v British Telecommunications Plc [2000] ScotCS 141 (30 May 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/141.html Cite as: [2000] ScotCS 141

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[1] In this action, the pursuer seeks damages in respect of injury to her mental health which she alleges that she has sustained as a consequence of the fault of the defenders et separatim the fault of one Stan Martin, an employee of the defenders at all material times, for whose negligent acts and omissions in the course of his employment with them the defenders are said to be responsible. It is a matter of agreement between the parties that the pursuer was employed by the defenders as a clerical assistant from 1987 until 23 September 1994, the date on which her resignation, dated 1 September 1994, took effect. It is also a matter of agreement that, although the pursuer was employed by the defenders until 23 September 1994, in fact she left her work on 4 April 1994 in consequence of her condition and did not work again with the defenders before her resignation took effect.

[2] The particular injury which the pursuer alleges she has sustained is injury to her mental health caused by work-related stress. In Condescendences 4 to 11 of the Closed Record, as amended, dated June 1999, the pursuer specifies details of her experiences in the course of her employment with the defenders, which she contends were stressful and which constitute the basis of her claim. In Condescendences 12 and 13, she sets forth the case of fault which she makes against the defenders. In Condescendence 14 she sets forth the case of fault which she makes against Mr Martin. In Condescendence 15, she sets forth the various ways in which she alleges that she has sustained injury to her mental health.

[3] It is a matter of agreement that the present action was served upon the defenders on 25 August 1997. That fact, in the context of the averments made in the action, is the basis for a claim on the part of the defenders that the present action, is time-barred. That claim is set out in the defenders' Answer 16 and is resisted by the pursuer in her Condescendence 16. The defenders have tabled two preliminary pleas. The first of these relates to the issue of time-bar and seeks the dismissal of the action. The second is a general plea to the relevancy and specification of pursuer's averments and also seeks dismissal of the action.

[4] When this case came before me in the procedure roll, counsel for the defenders, having outlined the nature of the action and having referred to the defenders' preliminary pleas, summarised the submissions which he intended to make. His submissions were to fall into three categories. In the first place, it was to be argued that the action was time-barred and should therefore be dismissed; in the second place, it was to be argued that the pursuer's averments of duty in Condesendences 13 and 14 were irrelevant and lacking in specification and furthermore had no basis in the averments of fact; in the third place it was to be argued that, in any event, individual averments should be withheld from probation as being irrelevant and lacking in specification.

[5] Turning to the matter of time-bar, counsel for the defenders argued that plea-in-law 1 for the defenders should be sustained and the action dismissed without inquiry. It was plain that the action was one of damages for personal injury, based upon an allegation of fault on the part of the defenders as the employers of the pursuer and the fault of Mr Martin, for whose act or omissions the defenders were responsible. Attention was then drawn to the provisions of section 17(1) and (2)(a) of the Prescription and Limitation (Scotland) Act 1973, the only statutory provisions founded upon by the pursuer. It was pointed out that the summons in the present action had been signetted on 22 August 1997 and service on the defenders effected on 25 August 1997. Against that background, it could be seen from the terms of Condescendence 15 that the pursuer averred that she had been unfit to work from 4 April 1994 onwards. Thus the injuries upon which she was founding had been sustained by that date. The significance of the date was two-fold. Firstly, it was the last day of the pursuer's attendance at work and secondly it coincided with the pursuer becoming redundant by virtue of the transfer of the handling of statutory notices for the whole of Scotland to the defenders' organisation in Glasgow, which was admitted to have occurred in April 1994, as appeared from Condescendence and Answer 7. Accordingly it was submitted that the date referred to in section 17(2)(a) of the Act of 1973 could not be later than that date. If the pursuer was to demonstrate that the action was not time-barred, she had to rely upon acts or omissions which had continued to 25 August 1994, three years before the raising of the action, which had a causal relationship with her injuries. In that connection reference was made to Wilson v Morrinton Quarries Ltd. 1979 S.L.T. 82, at pages 85 and 86. That case showed that personal injuries were sustained when there was an appreciable injury which could found an action of damages. Looking at the circumstances of the present case, by 4 April 1994, the pursuer had developed two psychiatric conditions which were said to be sufficiently serious to have caused her to absent herself from her work and to seek treatment from her general practitioner. There was no causative continuing wrong after that date. However, having regard to the averments in Condescendence 16, it appeared to be the pursuer's position that a relevant wrong continued until 23 September 1994, the date when the pursuer's resignation took effect. It was there averred that: "The acts or omissions to which the pursuer's injuries are attributable were continuing and liable to continue, during the course of the pursuer's employment." The words "liable to continue" in the context were obscure. The acts and omissions mentioned were not specified, but it had to be supposed that they were those founded upon earlier in the action. The matter had to be looked at in three stages. Firstly, one had to ask the question to what acts or omissions did the pursuer say her injuries were attributable before 4 April 1994. Secondly, the question arose to what acts or omissions did the pursuer say injury was attributable between 4 April 1994 and 25 August 1994. Thirdly, one had to consider whether these two sets of acts or omissions were continuing so as to "bridge" the two periods. Furthermore, it was necessary to apply this three stage test to both the cases pled, that is to say the case against Mr Martin and the case against the defenders.

[6] Turning to examine the case against Mr Martin, that was to be found in Condescendence 14. It was obvious from the averment made there that the criticisms of his conduct were related to the period leading up to 4 April 1994, when the pursuer was actually at work. There was no averment relating to a period after that date. It was acknowledged that at page 18C of the Closed Record there was an averment regarding the absence of any contact between Mr Martin and the pursuer after 4 April 1994, but that averment was not related to any averment of duty. Accordingly, in relation to the case against Mr Martin, there was no basis for going beyond the first stage of consideration.

[7] Turning next to the case against the defenders themselves, it was to be found in Condescendence 13. Between the commencement of the Condescendence and page 22C of the Closed Record the averments related to a period of time before 4 April 1994. From page 22C to page 23A, the averments were focused upon the period between 4 April 1994 and 25 August 1994. However, it was plain that the averments of duty relating to the period after 4 April 1994 related to a different job, because, in April 1994 the job previously done by the pursuer had been transferred to Glasgow, as appeared from page 12D to E of the Closed Record. The factual basis in averment to which this part of pursuer's case appeared to be related was to be found in Condescendence 11 at page 18C of the Closed Record. This passage related to further damage said to have been sustained by the pursuer. It was apparent from the pursuer's pleadings that there could not properly be said to have been any continuing act or omission before and after 4 April 1994. The essence of the criticisms made of the defenders in the period after 4 April 1994 was that they had treated the pursuer badly in discussing and handling her possible redeployment. Thus, there was a distinct break at 4 April 1994 when one moved from alleged work-place stress to different problems thereafter. In all these circumstances, there was no continuing act or omission extending into the triennium. Accordingly the action was time-barred.

[8] Counsel for the defenders next proceeded to elaborate his submissions in support of his general relevancy plea. The submission made was to the effect that the pursuer's averments of duty in Condescendences 13 and 14 were irrelevant, fatally lacking in specification and had no basis in the averments of fact. The general principles applicable to this kind of claim were set forth in White v The Chief Constable of South Yorkshire Police [1999] 1 All E.R. (H.L.)1, a case which arose out of the Hillsborourgh disaster. Reference was made to the speech of Lord Goff of Chievley at page 21. In order for there to be an award of damages, it was necessary for a claimant to show that he had suffered from a recognised psychiatric illness, not merely an emotional reaction to the events or conduct in question. In this connection, reference was made to the speech of Lord Stein at pages 30 to 31. Furthermore, some injury must have been reasonably foreseeable as a consequence of the act or omission complained of. In this connection reference was made to Page v Smith [1996] A.C.155. In employment stress cases, it was necessary for the claimant to show that some injury was reasonably foreseeable to persons in the same class of employment as the claimant; alternatively it was necessary to show that there was a foreseeable risk of injury to the pursuer, if that pursuer had a known propensity to suffering psychiatric injury in certain circumstances, as appeared from Walker v Northumberland County Council [1995] 1 All E.R.737 at pages 749 to 755. In that case, the Council had become aware of the plaintiff's particular propensity for nervous breakdown, in consequence of which they were held to be liable for the damage caused in a second breakdown. Furthermore, in order to result in liability, the illness concerned must have been caused by the relevant breach of duty not by what had had happened after that breach ceased. In this connection reference was made to Graham v David A. Hall Ltd. [1996] S.L.T. (Notes) 596, at page 597.

[9] Turning to the pursuer's averred case of fault, it was submitted that she was complaining of an excessive workload, a lack of training in a new administrative system and technology and of hostility and harassment by her manager, Mr Martin. But it was a fact that Martin knew that the pursuer was suffering from an excessive workload. It is also averred that the defenders knew that she suffered from insomnia. She claimed that she had been reduced to tears in the presence of Martin. There were averments to the effect that the engineers, with whom the pursuer was associated, had also complained about the workload. At one stage, one of the engineers, Tom Cunningham was averred to have had medical investigations into stress related conditions. The pursuer averred that she had consulted the Welfare Officer of the defenders concerning these matters early in 1994. The pursuer averred in Condescendence 15 that she had had a long psychiatric history over a period of years, but she did not aver that the defenders had known of that prior to 4 April 1994, nor that they had known of it prior to the pursuer taking redundancy in September 1994. Against that background, in Condescendence 12 the pursuer had made a number of averments regarding foreseeability. It was there said that certain matters were well-known; that other matters were well-known to the defenders; and, yet again, that certain matters were well-known to doctors and psychiatrists. Having regard to these averments and to the earlier background, it was submitted that there was no averment to the effect that the defenders ought to have foreseen that persons in the same class as the pursuer would be at risk of developing physical or psychiatric injury on account of the conditions of their employment. Furthermore, there were no averments that the defenders ought to have foreseen that the pursuer as an individual had a particular propensity to psychiatric injury on account of the conditions of her employment with them. In these circumstances the action should be dismissed as irrelevant.

[10] Dealing with the matter of the content of the duties averred, counsel for the defenders submitted that the duties ought to be plainly stated and be such that the Court could be satisfied that they might have been incumbent on the defenders in the circumstances averred. In that connection reference was made to Jamieson v Allan McNeil & Son, W.S. 1974 S.L.T. (Notes) 9 and Stevenson v Glasgow Corporation 1908 S.C. 1034 at page 1041. It was therefore necessary to examine the pursuer's averments of duty with these criteria in mind.

[11] Turning to the averments of duty made against the defenders themselves in Condescendence 13, a series of criticisms could be made. In particular, it was averred to be a duty of the defenders "to manage the pursuer the properly and fairly". But it was not clear what was meant by that expression. Furthermore, it was averred to be a duty that the defenders ought to have managed the pursuer "with adequate notice of changes to her workload and working practices". Once again, the averments gave no content to that expression. In addition, the pursuer averred that it was the defenders' duty "to provide proper and sufficient training for her in new systems". No content was given to that in relation to the "Susiephone". No criterion for measurement was stated. It was submitted that the pursuer ought to aver what training she claimed that she should have had. An averment was made that the defenders had a duty to "monitor and evaluate the quantity of work reasonably expected of their employees". Again, no content was given to this averment of duty. There was no guide furnished as to the assessments of work. The pursuer's averments continued with one of a duty to "provide their employees, including the pursuer, with reasonably co-operative managers"; the averments gave no indication as to what was meant by that. In the same part of the Condescendence there was a reference to a duty "to discipline the managers if they harassed the pursuer". That averment was unrelated to any loss alleged to have been sustained here. Thereafter, an averment was made to the effect that the defenders had a duty to investigate complaints by employees about workplace stress "quickly and thoroughly and to take steps to reduce the obvious risk of the health of said employee suffering because of long-term workplace stress". It was submitted that this averment was too wide. There might be unjustified complaints; action would be required only if a complaint were justified. The steps which the pursuer averred the defenders should have taken in relation to complaints all related to Mr Martin, yet it was not indicated what the defenders were supposed to have done in relation to him or in relation to the additional staff who were mentioned. There was no answer to the question of how many additional staff were said to have been required. Later in the averments there was one of a duty of the defenders to relieve the pursuer of part of her workload. However, no details were given. In addition to these considerations, the averments of duty at page 22B-C of the Closed Record were very vague. In particular it was not clear whether they related to the period of time before or after April 1994. To the extent that they related to the period after April 1994, they appeared to be unrelated to the averments of loss. Furthermore, it was suggested that, after April 1994, the defenders had had a duty to conduct a dialogue with the pursuer about her perception about her fitness for any re-deployed posts which were available, having regard to her known vulnerability to stress. It was far from clear what was supposed to be the basis of this averment. Between page 22D and page 23A there was a series of averments relating to alleged duties incumbent upon the defenders applicable to the situation after 4 April 1994, when the pursuer went off work. They related to, among other things, the re-evaluation of her fitness for clerical work. The formulation of these duties took no account of the pursuer's own averments to the effect that, from 4 April 1996, she was unfit for work. Later she took a redundancy package of her own choice. In particular, at page 19 of the Closed Recorcd, the pursuer averred that, in any event, the pursuer knew that she could not cope with working for the defenders. She was too ill to work in any re-deployed position. In these circumstances, the av

[12] Counsel for the defenders next dealt with the case made by the pursuer directly against Mr Martin. This was to be found in Condescendence 14 at page 23 of the Closed Record. The factual basis for this particular part of the pursuer's case had to be found in Condescendence 6 at page 10 and Condescendence 9 at page 15 of the Closed Record. A fundamental flaw in the pursuer's case was that there was no averment that Mr Martin had possessed a discretion regarding the amount of work which the pursuer required to do. Furthermore, the averments in Condescendence 6 related to deliberate actions on the part of Mr Martin, yet the case made in Condescendence 14 was one of fault, that is to say, a failure to exercise reasonable care. However, it was accepted that the factual averments might not have gone so far as to make it necessary to plead a case of causing deliberate injury to the pursuer. Nevertheless, the duties of care pled against Mr Martin were not properly connected with the averments of fact. In particular the averment about the allowance of weekend work was not related to the facts. Accordingly, on any view, the case directed against Mr Martin ought to be excluded from inquiry.

[13] Turning finally to deal with the possibility that the Court might not be prepared to dismiss the action, counsel for the defenders submitted that certain particular averments should be excluded from any inquiry. These were six in number. In the first place, at page 7C-D of the Closed Record, there were certain averments concerning the reduction by the defenders of their workforce under a policy known as "streamlining". It was submitted that these averments were irrelevant to the position of the pursuer. It was not said that the streamlining policy affected the pursuer directly. In the second place, at page 9D of Closed Record there was an averment concerning the fact that the pursuer found it difficult to concentrate in her open-plan office. This point was not developed in any way, although at page 21B-C there was a suggestion that a place of work case was being made. Nevertheless, these averments should be excluded from probation. In the third place, the averment made at page 10E of the Closed Record ought to be excluded from probation, since it had no relevance to the case made. In the fourth place, in Condescendence 8 at page 14B-C of the Closed Record there were references to a situation existing in early 1992. However, in Condescendence 4 it was made clear that the pursuer's case of culpable exposure to mental stress related to a period commencing in early 1993 and extending until the termination of the pursuer's employment in September 1994. Accordingly, the averments relating to a period in early 1992 were irrelevant and should be excluded from probation. In the fifth place, at page 14E of the Closed Record there was an averment to the effect that the pursuer required to spend time assisting one of her colleagues. In order to make that averment relevant, that employee should have been identified. In the sixth place, in Condescendence 12 at page 20D-E there were certain averments about what was well-known to doctors and, in particular, to psychiatrists by at least 1993. That averment was irrelevant; what might or might not have been well-known doctors was nothing to the point.

[14] Senior counsel for the pursuer indicated at the outset of his submissions that he would respond to the three chapters of the defenders' submissions in the order in which they had been made. Dealing first with the matter of time-bar, he submitted that, on a proper approach to the pleadings, the action was not time-barred, a relevant and specific case having been pled, relying on the provisions of section 17(2)(a) of the Act of 1973. In Condescendence 16 at page 28 of the Closed Record, it was made clear that the pursuer's case was to the effect that her injuries had been caused by continuing acts or omissions, which lasted throughout the duration of her employment with the defenders. It was accepted that this contention might appear strange, but it had to be recognised that the case was of a novel kind. There had been relatively few cases of the nature of this one either in Scotland or in England. In that connection reference was made to the article "Taking Stress Seriously; Employers' Liability for Stress - Related Injury at Work, by Gareth Thomas of the University of East Anglia. While actions for damages based on employment-related stress were comparatively novel, the Court ought to approach such cases in the same way as it would other actions of damages for personal injuries. No higher standard of pleading should expected in the present kind of case than was expected in ordinary personal injuries claims. In the present case, the pursuer had set out in detail the factual basis of her case and the criticisms which she was making of her employers. It was perfectly plain from her case that she was complaining of a course of conduct on the part of the defenders, her former employers, which lasted until the end of her employment in September 1994, although the precise nature of the acts and omissions founded upon varied throughout the material period. That reflected the fact that the ingredients of the conduct criticised did not remain constant throughout. However, the pursuer's case was that until September 1994, she had been exposed to material stress on account of the defenders' acts and omissions. That was made plain in the opening passage of Condescendence 4. It was wrong to break up the relevant period of time, of "early 1993 until September 1994", as suggested. There had been no fundamental change in April 1994. After that date, the defenders' treatment of the pursuer continued to give rise to stress, damaging her mental health, as was specifically averred in Condescendence 11 at page 18C-D of the Closed Record. It was true that, after 4 April 1994, she was no longer in the workplace, but it was contended that the employers' duty of care did not, by virtue of that circumstance, come to an end. The pursuer averred that, by 4 April 1994, she was seriously ill because of unreasonable stress imposed upon her by the defenders, created by the changes introduced in the work regime by them and by virtue of their lack of response to complaints, and also by the conduct of Mr Martin. In consequence she had had to go off work. Thereafter, continued efforts were made to find out what would happen to her. Her case was that the way that she was treated after April 1994 materially contributed to her illness.

[15] Turning to the legal background of the submissions in relation to time-bar, counsel for the pursuer drew attention to the terms of section 17(2)(a) of the Act of 1973. It referred to "the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later;". It was submitted that the "date on which the act or omission ceased" in the present case was 23 September 1994, when the employment of the pursuer by the defenders was terminated and, with it, the defenders' duty to exercise reasonable care towards the pursuer. In connection with this submission reference was made to The Law of Prescription and Limitation of Actions in Scotland, Walker, 5^th Ed., page 101. It was there said, in relation to the particular part of the legislation under consideration that:

That passage explained the choice of the date of cessation of 23 September 1994. It had to be borne in mind that, in the present case, the Court had to deal with an allegation of injury to mental health induced by stress in the workplace. That kind of allegation was different from, for example, an allegation of injury to physical health caused by a noxious atmosphere in the workplace. When an employee left a workplace where there was a noxious atmosphere, that ended the exposure to the injurious influence. However, stress was something which existed in the mind of the victim of it. It did not necessarily disappear simply because the victim became physically separated from the source of it. In any event, it was apparent from the pursuer's averments at pages 18 and 19 of the Closed Record that the defenders themselves had conceived their responsibilities towards the pursuer as continuing, even though she was herself, after 4 April 1994, absent from work.

[16] In relation to this part of the pursuer's submissions, reference was made to Carnegie v The Lord Advocate 1998 S.L.T. 872. That case, in which issues arose in relation to the application of section 17(2)(a) of the Act of 1973, was concerned with allegations of bullying in the army. The arguments of the defender and the pursuer were set out at pages 875 and 876. It had been decided that averments in respect of alleged lack of action on the part of the pursuer's superiors were sufficient for inquiry as to the critical date when the continuing act or omission ceased. That part of the decision was set forth in the judgment at page 876D-F. That was relied upon in the present case. It was submitted that the Court ought to take a realistic approach to these matters; a continuing course of conduct should not be broken down into artificially selected short segments, as suggested by the defenders in the present case. It was erroneous to suggest that some sharp break occurred here at 4 April 1994. The course of conduct founded upon by the pursuer continued to 23 September 1994, which involved allegations of negligent acts or omissions which had resulted in the stress complained of. The correct approach was to recognise that those acts and omissions ceased only when the pursuer's employment ended. Carnegie v Lord Advocate was important in the present context because of the submissions made on behalf of the pursuer in that case as to the moment when the allegedly negligent conduct ceased, which had been accepted by the Court.

[17] At this point in the pursuer's submissions, the procedure roll hearing had to be discontinued on account of lack of time. Subsequent to that adjournment, a Minute of Amendment for the pursuer, No.18 of process, was received; no answers were lodged thereto; and an amendment was effected in terms of it on 12 November 1999.

[18] At the resumed procedure roll hearing, counsel for the pursuer summarised the pursuer's factual allegations, which summary it is unnecessary for me to record here. Thereafter counsel for the pursuer indicated that his submissions would fall into four chapters. The first of these would be a completion of his submissions on the matter of time-bar. The second would involve a response to the submissions of the defenders on the matter of foreseeability. The third would be a response to the criticisms of the defenders of the terms of Condescendences 13 and 14 of the pursuer. Finally, the fourth would embrace a number of responses to detailed criticisms of the pursuer's pleadings.

[19] In relation to the issue of time-bar, counsel for the pursuer made clear that he was submitting that the pursuer's injuries had been caused by continuing acts or omissions which endured throughout her employment from 1992 to 23 September 1994. Examining what had been done in Carnegie v Lord Advocate, it was apparent from what had been said at page 876 that the conduct complained of had not been broken down into segments in the way suggested by the defenders that it should be here. It had to be emphasised that the pursuer's position was that the defenders' negligence continued until 23 September 1994, as was apparent from the averment at page 18C-D, although, it was accepted that the nature of the stress-inducing behaviour founded upon varied throughout the period of employment. In the present case it would be open to the Court to hold that the pursuer's alleged injuries were attributable to a continuing course of acts and omissions, as contemplated in section 17(2)(a) of the Act of 1973. If the action were to be dismissed on the basis of time-bar at the present stage, it would be necessary for the Court to be able to say that that was certainly not the case. That was not possible. Looking at the matter in another way, if the defenders were correct in their submission that the pursuer's criticisms of the defenders' conduct had to be compartmentalised, the consequence would be that at least two distinct limitation periods might apply to the circumstances of this case. There would be a limitation period which ran from 4 April 1994 and a second period which ran from 23 September 1994. That would be a most surprising outcome, which would give rise to great legal and factual complexities, which cannot have been contemplated by Parliament in enacting the Act of 1973. The further procedure which the pursuer submitted should take place in this case was the allowance of an unrestricted proof before answer, in which issues of time-bar and the relevancy of the pursuer's averments should be reserved, since they were inextricably inter-linked, although it was recognised that that would be an unusual course.

[20] In response to the argument that the pursuer's case, so far as it was based on the defenders' vicarious liability for the acts of their employee, Stan Martin, was time-barred, it was submitted that, since the defenders were vicariously liable for the wrongful acts of their employee, it was appropriate to treat his negligent acts as forming part of the defenders' own culpable acts, which, on the pursuer's averments, ran on until 23 September 1994. In this connection, reference was made to Prescription and Limitation, Johnston, page 204, paragraphs 10.19 and 10.20. Those passages gave little support to the view that there could be some form of apportionment of the basis of responsibility for injury, where the cause was a "continuing" "act or omission", the words used in section 17(2)(a) of the Act of 1973. A policy or regime of making unreasonable demands on an employee might involve specific or isolated incidents of negligence, or alternatively might amount to a continuing act or omission. That depended on whether there was a continuing course of conduct, in a real sense. That could be determined only after inquiry.

[21] Counsel for the pursuer next turned to the second chapter of his submissions, being his response to the criticism of the pursuer's case in relation to foreseeability. It had been stated on behalf of the defenders that four principles were to be applied. Firstly, it was recognised that an employee could become entitled to damages for psychiatric injury. Secondly, if there were to be an award of damages, it had to be for a recognised psychiatric illness, not merely an emotional reaction to a situation. With both of those propositions, counsel for the pursuer agreed. Thirdly, some injury must have been reasonably foreseeable as a consequence of an act or omission. In this connection reference was made to Walker v Northumberland County Council [1995] 1 AllER 737. Fourthly, the psychiatric illness which was the basis of the claim must have been caused by the breach of duty, as opposed to being something which developed at a later stage, following the termination of that breach of duty.

[22] The observations of Colman, J. in Walker v Northumberland County Council, at pages 749 to 752 were illuminating in relation to the type of claim involved here. What had been submitted by the defenders was that the pursuer here had failed to aver that the defenders ought reasonably to have foreseen that persons such as the pursuer would be likely to suffer psychiatric injury in consequence of the workload imposed. Further, it had been argued that the pursuer had not averred that she was a person having a particular propensity to suffer psychiatric illness. In relation to these matters, it was submitted on the pursuer's behalf that the passage, quoted by Colman J at page 751 in Walker v Northumberland County Council, from the judgement of Miles, C. J. in Gillespie v The Commonwealth of Australia (1991) 104 A.C.T.R. 1, showed that foreseeability was to be considered "only in so far as the degree of remoteness of the harm sustained by the plaintiff set the parameters of the steps that a reasonable person in the position of the defendant would have taken to reduce the risk to the extent that any 'unnecessary' risk was eliminated.... It may be that this takes the Court into an area of value judgement for which the inscrutability of a jury verdict may provide a more appropriate means of expression." Accepting that approach to the matter, it followed that it would be only in the most exceptional case that the Court could decide a question of reasonable foreseeability in the context concerned on pleadings and without inquiry. In the present case, in Condescendence 12, elaborate averments had been made justifying the view that a material risk of psychiatric damage to the pursuer could reasonably have been foreseen as a likely consequence of the actings complained of. Furthermore, in Condescendence 9 averments were made of actual knowledge and awareness on the part of the defenders that the working conditions complained of were in fact causing stress-related problems. References in the defenders' submissions to reasonable foreseeability as a test for defining the class of persons to whom a duty of care was owed were misconceived. As was pointed out in Gillespie v The Commonwealth of Australia, there was no need to consider reasonable foreseeability in that context, because the relationship of employer and employee itself gave rise to that duty of care. The relevance of the concept was rather in the context of settling liability for consequences. In that connection, reference was made to the current edition of Gloag and Henderson's Introduction to the Law of Scotland, pages 509 to 510, paragraph 32.2. Thus the issues of foreseeability arising in this case were essentially issues of fact for decision after evidence. Counsel for the defenders had misapprehended the significance of foreseeability in the context. Because of the relationship of employer and employee, manifestly, if reasonable care were not exercised by the employer, injury to the employee was reasonably foreseeable. It was well recognised that an employer might require to exercise a higher standard of care in relation to an employee who was particularly vulnerable, but that principle formed no part of the pursuer's case; she was not claiming that she was particularly vulnerable to a psychiatric illness.

[23] It was appropriate to point out that Walker v Northumberland County Council had been considered in the unreported Scottish case of Rorrison v West Lothian College and Lothian Regional Council, in which Lord Reed had issued an opinion dated 21 July 1999. The main features of the pursuer's case were summarised at page 5 of the Opinion. A question arose as to whether there was any averment that the pursuer had come to suffer from a recognised psychiatric illness in consequence of the actions complained of. The conclusion of the Court was that there was not, in consequence of which the action was dismissed. That problem did not exist in the present case, in view of the averments made in Condescendence 15.

[24] Dealing with White & Others v The Chief Constable of the South Yorkshire Police & Others, it was submitted that the decision was not of assistance in the present context. None of the plaintiffs in that case had been a primary victim. Furthermore, issues arose as to whether plaintiffs had suffered recognised psychiatric illnesses. Those features were not present in the pursuer's case. The pursuer, as an employee of the defenders, had suffered injury arising out of her work, taking the form of a recognised psychiatric illness.

[25] Turning to the third chapter of his submissions, counsel for the pursuer responded to the criticisms made in relation to Condescendences 13 and 14. He submitted that the averments concerned were closely related to the factual allegations made on behalf of the pursuer. They were not averments of duty in a vacuum. The averments made in Condescendence 13 were plainly related to the averments of fact contained in Condescendence 6. As regards the passage at page 23 of the Closed Record, in which the Management of Health and Safety at Work Regulations 1992 were referred to, it was submitted that it was no more than a basis for support of the pursuer's averments as to reasonable foreseeability at common law. The overall test which had to be applied in relation to relevance was that expressed in Miller v The South of Scotland Electricity Board 1958 S.C. (H.L.) 20, by Lord Keith at page 33.

[26] Counsel for the pursuer finally responded to a series of miscellaneous criticisms made of the pursuer's pleadings. As regards the passage at page 7D of the Closed Record, relating to employees leaving under a voluntary redundancy scheme, it was without merit for the defenders to complain that details were not averred; in the nature of things, they must have been aware of the details. As regards the criticism of the averment made at page 9D of Closed Record, concerning the pursuer's work in an open plan office, the purport of this averment was quite clear. Turning to the point made concerning the averment at page 10E relating to the failure of Martin to compliment the pursuer on her work, that averment was made simply as an illustration of a poor approach to employee management on his part. Turning to the criticism of the averment at page 14B, the reference to the year 1992 was simply part of the historical background to the case which had been made; it was plainly relevant upon that basis. The criticism made of the averment at page 14E of the Closed Record had been dealt with by means of the amendment to which reference had been made. As regards the criticism made of the averment at page 20D-E of the Closed Record, it was accepted that the connection to the defenders was not spelled out. However, a large employer such as the defenders, it could be inferred, ought to have been aware of the matters concerned. In that connection reference was made to the defenders' own averment at page 17A that they operated an Occupational Health Department. In the whole circumstances, counsel for the pursuer renewed his motion that a proof before answer should be allowed leaving all pleas-in-law standing.

[27] Counsel for the defenders responded. In relation to the matter of time-bar, one of the principal issues was whether there was continuity from 4 April to 20 August 1994, the date of commencement of the triennium. The Court ought to hold that there was no continuity. On the earlier date, the pursuer went off work. Also, on that date, her job was gone, as appeared from the averment at page 12E of the Closed Record. Accordingly all the subjects of her complaint had disappeared. In that respect there was a discontinuity. In any event, the case against Martin was treated separately in the pleadings from that against the defenders directly. It was a separate case and it itself was time-barred. If Martin had been convened as a second defender, he would inevitably have succeeded in a time-bar plea. If that were the case, there was no reason why the defenders should be deprived of the same protection.

[28] Turning to the issue of foreseeability, it was pointed out that the pursuer averred that she had developed and suffered from a panic disorder with agoraphobia in terms of the DSM IV criteria laid down by the American Psychiatric Association. It was plain that the duty involved was not one not to cause stress, but was one not to cause recognised psychiatric illness. Accordingly foreseeability had a part to play. It was necessary to determine how foreseeable psychiatric harm was upon the basis of the conduct complained of. There were difficulties in relation to workplace stress cases; psychiatric illness was difficult to predict. Accordingly such cases had to be analysed carefully, as was done in White & Others v The Chief Constable of the South Yorkshire Police & Others. Policy considerations came into play. Lord Reed's approach in Rorrison v West Lothian College and Lothian Regional Council was sound. It confirmed the defenders' contention that it was foreseeability of psychiatric illness that was critical, not simply foreseeabiliby of stress. Catleugh v Caradon Everest Ltd. (unreported) Lord Marnoch, dated 23 September 1999 also demonstrated that the reasonable foreseeability of psychiatric illness was a necessary ingredient for a relevant case. Only in the last two sentences of Condescendence 12 was there any reference to the foreseeability of the development of mental illness. It was plain from the pursuer's pleadings that the stated duties went beyond normally accepted duties; that was particularly so in relation to the period after the pursuer went off work on 4 April 1994. The duties averred relating to the period after that date were apparently more related to treatment than those normally incumbent upon an employer.

[29] Counsel for the defenders, while accepting that one of his detailed criticisms of the pursuer's pleadings had been met by the amendment made, renewed those criticisms. He agreed that the present case would not be one suitable for a preliminary proof on the issue of time-bar, since that issue was closely related to the merits of the case.

[30] In the light of the foregoing arguments, I propose to deal with the issues which have arisen in this debate in the same order as they were discussed. Turning then to the matter of time-bar, it is plainly important to recognise the nature of the case which is pled by the pursuer. The case made directly against the defenders is to be found in Condescendence 13. The first part of that case, extending from pages 21B to 22C of the Closed Record relates to the defenders' alleged failings in duty in the period of time leading up to 4 April 1994, when the pursuer went off duty. From pages 22C to 23A, there are averments of failure in duty relating to the period from 4 April 1994 until the pursuer's employment came to an end on 23 September 1994. While there are obvious differences in the content of the allegations of failure in duty related to these two periods of time, they share the basis of an allegation that, in a variety of ways, the defenders failed to exercise reasonable care for the safety of the pursuer. In Condescendence 14, a case is made against the defenders, based upon their vicarious liability for the fault and negligence of Martin, previously referred to. While the averments in that Condescendence are not expressly related to a specified period of time, it is plain that they must relate to the period ending at 4 April 1994, since there are no factual averments to the effect that Martin had any contact with the pursuer, or responsibility for her welfare thereafter.

[31] It is also necessary to have regard to the terms of section 17 of the Act of 1973, which governs the matter of limitation. Section 17(1) provides that the section is to apply to "an action of damages where the damages claimed consist of or include damages in respect of personal injuries". Section 17(2) then goes on to provide that:

[32] It appears to me that, on the face of it, this legislation does not contemplate the separate treatment, in relation to limitation, of different parts of an action in which a pursuer seeks damages in respect of personal injuries against a particular defender, although that was the approach urged upon me on behalf of the defenders in this action. It does not appear to me that, in enacting this legislation, Parliament contemplated the possibility of the existence of two or more triennia applying to several parts of a single action directed against a single defender. The position, in my opinion, would be different where an action involved claims made against two or more defenders, which is not the case here. In such a case, the separate treatment of each claim may be appropriate. However the position in this action is that a case is made against the defenders, in the first place, directly, and, in the second place, based upon their vicarious liability for the alleged fault of Martin. In my view this action is properly to be seen as a single action directed against the defenders alone, albeit with different particular grounds. It is indisputable that the allegations made against the defenders relate to a period ending on 23 September 1994, a date within the triennium. Furthermore, it is equally obvious that the averments of loss, injury and damage, contained in Condescendence 15 relate to matters post-dating 4 April 1994. Accordingly, it cannot be said at this stage and in advance of an inquiry that the pursuer's injuries had all been sustained by that date.

[33] During the course of the argument, some reference was made to the possibility of attempting to apportion different parts of the injuries sustained by a pursuer, as between one period and another, for the purposes of applying the provisions of section 17 of the Act of 1973. In that connection I was referred to passages in Prescription and Limitation, Johnston, pages 204-205, paragraphs 10.17 to 10.20. It is there observed that in England the Courts have been prepared to attempt apportionment of injuries sustained in one period rather than another, in connection with the issue of limitation. The learned author observes that: "In Scotland there is little evidence of this kind of apportionment." In the passages concerned a number of English authorities are mentioned. In particular, Thompson v Smiths Shiprepairers (North Shields) Limited [1984] Q.B. 405 and Berry v Stone Manganese and Marine Limited [1972] 1 Lloyd's Rep.182 and certain other authorities. During the course of the argument before me, no attempt was made by counsel to examine these authorities. That being so, I am not prepared to conclude that it would be appropriate for the Court in Scotland to follow the approach urged upon me on behalf of the defenders, involving a breaking down of the grounds of the pursuer's action against the defenders into its component parts and the separate treatment of those component parts in the context of the limitation legislation. I would not wish to be understood as excluding the possibility that such an approach might be appropriate in certain circumstances, however, in the absence of argument on the matter, I am not prepared to embark upon that course in this action. I propose therefore to approach the matter of limitation in a more broad manner, which I believe to be clearly consistent with the terms of the legislation.

[34] A further technical problem militating against the defenders' approach appears to me to be found in the terms of the defenders' pleadings. In Answer 16, the averments made on behalf of the defenders relating to time-bar are exiguous in the extreme, consisting in three short sentences, at page 28D of the Closed Record. These are related to the defenders' plea-in-law 1, which is simply to the effect that "The action being time-barred should be dismissed". Neither in those averments, nor in the relevant plea-in-law, is any attempt made to focus to any extent the approach of breaking down the components of the pursuer's case, in the manner contended for on behalf of the defenders. In those circumstances, whatever might have been my view on the merits of the arguments concerned, I contemplate that it would have been impracticable for the Court to give effect to those arguments on the pleadings, as they stand.

[35] For all of these reasons, I consider that there is no basis for the sustaining of the defenders' plea-in-law 1 at this stage. Having regard to that and to the view which I have formed regarding the other issues raised at the procedure roll, I propose to allow a proof before answer, reserving, inter alia, that plea. I recognise that that is an unusual course, but this is an unusual case. If, in the light of the proof before answer upon the merits of the case which I am also allowing, in the end, the pursuer fails to establish fault on the part of the defenders relating to any period after 4 April 1994, then, in my view, the action could be disposed of by the sustaining of the defenders' plea-in-law 1. It is because of that possibility that I consider that the plea must be reserved. Until the merits of that part of the pursuer's case alleging a continuing act or omission after 4 April 1994 have been determined, that the matter cannot be resolved.

[36] I turn now to consider the challenge made on behalf of the defenders to the relevancy of the pursuer's case. As I understood the positions of the parties, there was general agreement in principle as to the approach which had to be taken to the assessment of the relevancy of the pursuer's case. In particular, under reference to White & Others v The Chief Constable of the South Yorkshire Police & Others, it was recognised that, for there to be a remedy in damages, there had to exist a recognised psychiatric illness caused by the events in question, as opposed to a mere emotional reaction. In this connection, I refer to the observations of Lord Steyn at pages 30 and 31 of Report. At page 31 he said this:

[37] Furthermore, I understood it to be accepted that before a remedy could be recognised, some injury must have been reasonably foreseeable as a consequence of the act or omission complained of. In that connection reliance was placed upon Page v Smith. In that case it was held that, once it was established that the defendant was under a duty of care to avoid causing personal injury to the plaintiff, it mattered not whether the injury in fact sustained was physical, psychiatric or both.

[38] Focusing upon the issue of foreseeability of injury in relation to allegations of employment-related stress, I understood it to be accepted that either the injury had to be reasonably foreseeable as a likely consequence of the acts or omissions in question upon persons working in the same class of employment as the pursuer, or that such injury was reasonably foreseeable to a pursuer, who had a known propensity to suffer psychiatric illness. This principle emerged form the decision in Walker v Northumberland County Council, a case in which a claim for damages for psychiatric injury caused by employment stress succeeded in relation to part of the claim concerned. The circumstances of that case involved two distinct episodes of psychiatric illness suffered by the plaintiff. His claim succeeded in relation to the second episode, but not the first. The decision of the Court was to the effect that, where it was reasonably foreseeable to an employer that an employee might suffer a nervous breakdown because of the stress and pressures of his workload, the employer was under a duty of care, as part of the duty to provide a safe system of work, not to cause the employee psychiatric damage by reason of the volume or character of the work which the employee was required to perform. On the facts of the case in question, prior to the 1986 illness, it was not reasonably foreseeable to the local authority that the plaintiff's workload would give rise to a material risk of mental illness. However, as to the second illness, the local authority ought to have seen that, if the plaintiff was again exposed to the same workload, there was a risk that he would suffer another nervous breakdown, which would probably end his career as an area manager. In the circumstances, it therefore followed that the local authority was liable in negligence for the plaintiff's second nervous breakdown.

[38] Finally, it was accepted that before a psychiatric illness could sound in damages, the illness must have been caused by the breach of duty concerned and not by what might have happened after that breach of duty have come to an end. In that connection reference was made to Graham v David A. Hall Limited.

[39] In addition, I understood it to be accepted that the well-known dictum of Lord Keith of Avonholm in Miller v The South of Scotland Electricity Board was relevant in the context. In that case, at page 33 he observed that:

The test of relevance was of course authoritatively explained in Jamieson v Jamieson 1952 S.C. (H.L) 44 by Lord Normand at page 50, where he said: "The true proposition is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all of the pursuer's averments are proved."

[40] Against this background of principle, I now consider the averments made by the pursuer. In Condescendences 4 to 9 inclusive, the pursuer has made detailed and extensive averments of the conditions under which she had to work during the period in question. It is to be noted that, as averred in Condescendence 7, during the restructuring process in 1993 and 1994, complaints were made repeatedly to the defenders' management by the pursuer and her colleagues about their excessive workload, the pressure that they were under and the resulting stress. Detailed averments are made concerning these complaints. In addition to those averments, in Condescendence 9, the pursuer avers that Mr Stan Martin was continually aware of the workload imposed upon her. She discussed the stress she was under with him on many occasions. Indeed, it is averred that so many complaints were made to Mr Martin that he said he would post a board outside his office for "complaints". In addition, it is averred that, at the time, one of the pursuer's colleagues, Mr Tom Cunningham, had had to have medical investigations into stress related conditions from which he was suffering. He had two cardiograms taken. He took time off sick as a result. Stan Martin knew of this. Mr Cunningham and others of the defenders' workforce had to leave because of the stress-induced illness. Many of the pursuer's colleagues complained of work pressures at briefing meetings. The pursuer was in tears in the office on several occasions because of the stress she was under. The managers in the defenders' Drawing Office, including Bill Cotton, were also aware of the intensive stress that the pursuer and her colleagues were under. Furthermore, the pursuer avers that, in about early 1994 she had a meeting with a Mr John Shanks, the Welfare Officer employed by the defenders to take care of their employees' occupational health. On that occasion she avers that she asked for assistance in connection with the excessive stress that she was suffering.

[41] In Condescendence 12, averments are made by the pursuer directly bearing on the issue of foreseeability. It is there claimed that, by at least 1993, it was well known that adverse working conditions could induce stress and stress-induced anxiety in employees. In particular, it was well known to employers that inter alia impossible deadlines and targets, lack of support from other employees, poor training, and the impossibility of achieving major objectives for reasons beyond an employee's control were likely to induce stress in employees affected by said factors. It was well known that employees might manifest physical and mental symptoms as a result of stress in the said circumstances. It was well known to employers that common symptoms resulting from workplace stress included exhaustion, insomnia, headaches, anxiety, depression, panic attacks, and various digestive and bowel problems.

[42] Against the foregoing background, I have reached the conclusion that an inquiry must be allowed into the merits of the pursuer's case. She has averred, in Condescendence 15, that she sustained injury to her mental health and that, in particular, she has developed and suffers from a panic disorder with agoraphobia in terms of the DSM IV criteria laid down by the American Psychiatric Association. Accordingly, it appears to me that she has plainly averred that she has suffered from a recognised psychiatric illness. In relation to the issue of foreseeability it appears to me that the averments which she has made make it impossible for me to say that her case is bound to fail. There are extensive averments of substantial pressure at work, related to organisational changes in the defenders' administration, which generated stress, and which was the subject of extensive complaints to the defenders and to Mr Stan Martin. It appears to me that these averments show that the defenders were given an opportunity to understand that the arrangements which they had in force were causing difficulties of the kind complained of by the pursuer. It was expressly stated by counsel for the pursuer that it was no part of her case that she was claiming to be particularly vulnerable to the effects of work-related stress. Despite that concession, it appears to me that, among the pursuer's averments, there is material which is potentially a basis for her case of foreseeable risk of injury of a psychiatric nature against the defenders. So far as the issue of causation is concerned, that appears to me to be essentially an issue of fact. No doubt if any of the symptoms of which the pursuer complains are shown, after inquiry, to have no causal connection with the case of fault made against the defenders, to that extent, her case would fail.

[43] Some reliance was placed by the defenders upon the case of Rorrison v West Lothian College and Lothian Regional Council. As I understand the decision in that case, the pursuer's action was dismissed upon the basis that she had not averred that she had ever been diagnosed as suffering from a recognised psychiatric disorder. That is, of course, not the position in the present case. Accordingly I do not find that case as of assistance. So far as the case of Logan v Falkirk & District Royal Infirmary NHS Trust is concerned, once again I derive no assistance from it, in the circumstances of the present case, since it was concerned with a claim asserted upon the basis of a breach of contract as opposed to negligent acts or omissions.

[44] On behalf of the defenders a number of detailed criticisms were made of the pursuer's averments in Condescendences 13 and 14, as I have already narrated. While I would not wish to affirm that all of those averments are necessarily justified as averments of duty based upon the facts as they are claimed to be and accordingly, their merits may require to be debated in the light of the ascertained facts, at this stage, I am not persuaded that any of them should be excluded from probation. The averments in those Condescendences are essentially, in any event, averments of duty as opposed to averments of fact. I agree with the submission of counsel for the pursuer that the contents of these Condescendences are closely related to the factual allegations made by the pursuer.

[45] In addition to the criticisms made of Condescendences 13 and 14, counsel for the defenders advanced a number of criticisms of particular averments made on behalf of the pursuer, which I have narrated. In relation to those matters and in the context of the allowance of a proof before answer, I am not persuaded that any of those criticisms would justify my exclusion of any of the averments concerned from probation. Accordingly I do not propose to take that course.

[46] In all of the circumstances I shall therefore allow a proof before answer, reserving pleas-in-law 1 and 2 for the defenders and plea-in-law 3 for the pursuer.