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OUTER HOUSE, COURT OF SESSION
[2009] CSOH 8
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A168/06
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OPINION OF LORD WOOLMAN
in the cause
KENNETH DONALDSON
Pursuer;
against
SCOTTISH MINISTERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Comiskey; Simpson & Marwick, WS
Defenders: Sheldon; Brodies, LLP
20 June 2008
Introduction
[1] Between 1990 and 2004
the pursuer was employed as a prison officer in the Scottish Prison Service, an
executive agency of the defenders. He
retired from work on medical grounds, which were psychiatric in nature, at the
age of 40. In this action for damages,
he claims that his medical problems were caused by the fault and negligence of
the defenders. The pursuer founds upon a
history of psychological problems at work.
He also points to events involving a prisoner named Francis Kelly. In July 2003, Kelly made threats against the
pursuer. The following month, he
witnessed the aftermath of an assault by Kelly on another prisoner. The pursuer states that it was these events
that led him to retire from his post.
[2] At
debate, counsel for the defenders maintained that the pursuer's claim was
irrelevant and should be dismissed.
Counsel for the pursuer invited me to send the case to a proof before
answer, leaving all pleas standing.
During the course of the debate, however, Miss Comiskey made two
separate motions to amend the pursuer's pleadings. Those motions were opposed and I refused them
both for reasons which I shall outline later in this Opinion. I shall anticipate my conclusion by stating
that I took the view that the defenders' arguments were well founded and I
dismissed the action.
The Background
[3] The
facts upon which the pursuer relies can be divided into three broad
chapters: (a) his period working at
Shotts Prison; (b)
his employment at Barlinnie Prison; and
(c) his experiences with Kelly.
Shotts
Prison
[4] The
pursuer was employed as a Prison Officer at Shotts Prison from 1990 to 1995. For about the last eighteen months of his
period there, he worked in E Hall. It
was a "lock down" hall for the prison's most violent prisoners. Staff members, including the pursuer, were
repeatedly exposed to assaults (both verbal and physical), dirty protests and
hostage taking.
Barlinnie
Prison
[5] When he transferred to
Barlinnie Prison in 1995, the pursuer began by working in E Hall, which was the
old "Special Unit". It had been
converted to hold six prisoners from Peterhead, who had been deemed to be the
worst prisoners in the Scottish penal system.
From late 1996 until his retirement in August 2004, the pursuer worked
in A Hall.
[6] In
1998, the pursuer was off work for about six months as a result of a fracture
to his hand following an assault by a prisoner.
Between July 1999 and May 2000, he was absent from work as a result of
stress. From about March 2000, he began
receiving medical treatment for his condition.
He attended his general practitioner, together with a clinical
psychologist and a consultant psychiatrist.
His application for extended sickness benefit was initially refused by
the defenders. In December 2000,
however, they allowed an appeal. They
accepted that the pursuer had psychological problems stemming from his
experiences at work, including the violence to which he had been exposed
between 1993 and 1996. Accordingly, he
received extended sickness benefit for the period of about ten months that he
was off work. When the pursuer returned
to work on 22 May 2000, he
was placed on duties with no or limited prisoner contact. He was off work again for about seven weeks
between May and July 2001 for an operation to remove a benign tumour.
[7] In
July 2001, the defenders were informed that the pursuer continued to have
psychological problems, which might lead him to act inappropriately at
work. They were also told that although
anger management counselling might assist him in some areas of his life, it was
unlikely to assist him with regard to prisoner contact. In October 2001, the Occupational Health
Department advised the defenders that if it was operationally possible, the
pursuer should be permanently placed in a job that did not involve direct
prisoner contact.
[8] On
18 January 2002, the
pursuer left work early to attend a medical appointment. Later that day, the Human Resources
Department left a message on his home telephone enquiring why he was not at
work. On hearing the message, his wife
questioned his fidelity. That placed a
great deal of strain on the marriage, which was already under pressure due to
his health problems. The pursuer was
very angry about the phone call and made a formal complaint against the Human
Resources Department. Whilst awaiting
the outcome of this complaint, his anger increased and he made threats to
attack his Line Manager. Acting on the
recommendation of the pursuer's general practitioner, the defenders decided
that he should not return to duty until he was medically cleared to do so. He was absent from work from about
24 January 2002 until 5 August
2002. His application for
extended sickness benefit for that period was refused.
[9] In
April and May 2002, a number of further medical reports indicated that the
pursuer was fit to return to work, subject to certain conditions being
fulfilled. The Occupational Health
physician stated that the pursuer seemed to have made "a quite magnificent
recovery from his stress related illness".
The psychologist confirmed the improvement, but queried whether the
underlying psychological condition was permanent. He referred to the adverse effect of prisoner
contact upon the pursuer in the past.
The psychologist suggested a staged return to work, with a mentor to
offer support as the pursuer's duties increased. He added that if increasing stress became a
problem after such a return, a referral to psychological services should be
considered a priority. On 27 May 2002, the pursuer's general
practitioner confirmed that in her view he had improved dramatically. She
supported the suggestion of a staged return to work, subject to supervision and
reassessment.
[10] On his return to work on 5
August 2002, the pursuer was allocated a role that did not involve
direct prisoner contact. During his
first week back, the defenders issued him with an oral warning regarding his
absences in the preceding six months. In
his pleadings, the pursuer goes on to aver that by 3 September 2002 the
defenders were aware (i) that they had experienced difficulties in managing his
day-to-day structured return to work;
(ii) that he appeared to have found it very difficult to adapt to his
return to work; and (iii) that he had
openly criticised the role, questioned the content of the programme and at
times displayed challenging behaviour.
[11] In the autumn of 2002, there were further medical reports about
the pursuer. On 17 September, the
Occupational Health physician assessed the pursuer as being angry and agitated,
but did not find him to have any significant signs of illness. On 1 November, the treating psychiatrist
advised the defenders that the pursuer showed considerable improvement in his
mood and demeanour compared to May 2002.
The pursuer had reported to him that he was happy to be back at work,
and believed that he was competently performing his duties. The psychiatrist advised the defenders that a
return to full time duties should not be prevented solely because of any
difficulty between the pursuer and another member of staff. On 11
November 2002, the Occupational Health physician considered that
the pursuer was fully fit for a return to duties. He did so knowing of the pursuer's formal
complaint against the Human Resources Department and his potential
unwillingness to raise or identify any problems with it.
[12] On 11 November 2002,
the pursuer returned to his normal duties with direct prisoner contact. By the end of the month, he had returned to
work in A Hall. His supervisor, Peter
Christie, was appointed his mentor at work.
The pursuer was absent from work for the whole of March 2003 due to
asthma. On 27 June 2003, he received an oral warning from the
defenders regarding his absences. On 3 July 2003 the pursuer was placed
under police investigation regarding an accusation of assault made by a
prisoner called Neil Munro. The
defenders were aware of the complaint and the investigation. On 6
July 2003, the pursuer was informed that his complaint against the
Human Resources Department had been unsuccessful.
Prisoner
Kelly
[13] In 2003, Francis Kelly was a prisoner at Barlinnie. The pursuer first came across him when he
escorted him to the Segregation Unit, apparently without incident. On 31 July, a prison officer prepared an
Intelligence Report concerning Kelly for the defenders. It stated that twice that month, Kelly had
made threats against staff. He stated
that he would follow home any member of staff who had crossed him. He said that he would break into their cars,
place a quantity of drugs inside and alert the police. Kelly also threatened on his release to
contact a tabloid newspaper and make allegations against such staff. Kelly expressly mentioned the pursuer, who
was told about the threats and advised to contact the police by his Security
Line Manager.
[14] On 8 August 2003,
a case conference was held to discuss Kelly's possible move from the
Segregation Unit. It was chaired by the
Operations Manager. The A Hall First
Line Manager and Kelly himself were also present. During the conference, Kelly indicated that
he was unwilling to go to either A Hall or B Hall. He stated that he had issues with the staff
in both halls. The threats made by him
against the pursuer were not, however, discussed. Kelly expressed a wish to spend the rest of
his sentence in the Segregation Unit.
Subsequently, he changed his mind and requested a move to A Hall. This was not communicated to the A Hall First
Line Manager. He had understood at the
end of the conference that Kelly would not return to A Hall and had not
sanctioned it. On 13 August 2003, the Manager of the Segregation
Unit telephoned a prison officer asking him to return Kelly to A Hall. Shortly thereafter, Kelly returned to A Hall.
[15] The pursuer had understood that Kelly would serve the remainder
of his sentence in the Segregation Unit.
When he learned of Kelly's return to A Hall, the pursuer complained to
his supervisor. He indicated that
Kelly's return to A Hall was inappropriate in light of the threats that had
been made against him. He was informed
that nothing could be done about the situation.
Within about fifteen minutes of his return to A Hall, Kelly assaulted
another prisoner. In response to the
staff alarm, the pursuer went to the scene of the assault straightaway. On arrival, he found Kelly being restrained
by other officers. Kelly was then
returned to the Segregation Unit. Following
the assault, Kelly made a number of threats to Supervisors and Governors,
although it is not averred that any of these threats concerned the
pursuer.
[16] Subsequently, the pursuer struggled to cope at work. The presence of Kelly in A Hall caused him
considerable stress and anxiety. He
feared that his personal safety had been put at risk. He became increasingly anxious at the thought
that he could have been the subject of an assault. He had two meetings with his union
representative, Mr Cassels, to discuss his concerns. They met on 21 August and 1 September 2003. At the second meeting, the pursuer was
extremely agitated, angry and aggressive.
His behaviour caused Mr Cassels to believe that he was on the verge of a
breakdown. Mr Cassels informed the
defenders that he had concerns not only for the pursuer's own wellbeing, but
also for that of others. By agreement
the pursuer stayed off work until an appointment with his GP on 8 September 2003. On that date the pursuer was signed off
sick. He has been unable to work since
then. On 23 April 2004 the Director of
Occupation Health Services certified that the pursuer's absence from work from
5 September 2003 as being due to anxiety mainly and directly attributable to
the events surrounding Kelly and the nature of the duty undertaken by the
pursuer. Consequently the defenders
granted the pursuer extended sickness benefit from 5 September 2003.
He retired on medical grounds in August 2004.
The Law
[17] Both parties relied
principally on the summary of propositions to be found in the judgment of the
Court of Appeal in the case of Sutherland
v Hatton EWCA Civ 76; [2002] ICR 613:
"1. There are no special control mechanisms
applying to claims for psychiatric (or physical) illness or injury arising from
the stress of doing the work the employee is required to do ... The ordinary
principles of employer's liability apply ...
2. The threshold question is whether this
kind of harm to this particular employee was reasonably foreseeable ... this has
two components (a) an injury to health (as distinct from occupational stress)
which (b) is attributable to stress at work (as distinct from other factors) ...
3. Foreseeability depends upon what the
employee knows (or ought reasonably to know) about the individual
employee. Because of the nature of
mental disorder, it is harder to foresee than physical injury, but may be
easier to foresee in a known individual than in the population at large ... An employer is
usually entitled to assume that the employee can withstand the normal pressures
of the job unless he knows of some particular problem or vulnerability ....
4. The test is the same whatever the
employment: there are no occupations
which should be regarded as intrinsically dangerous to mental health ...
5. Factors likely to be relevant in
answering the threshold question include:
(a) The nature and extent of the work done
by the employee ... Is
the workload much more than is normal for the particular job? Is the work particularly intellectually or
emotionally demanding for this employee?
Are demands being made of this employee unreasonable when compared with
the demands made of others in the same or comparable jobs? Or are there signs that others doing this job
are suffering harmful levels of stress?
Is there an abnormal level for sickness or absenteeism in the same job
or the same department?
(b) Signs from the employee of impending
harm to health ... Has
he a particular problem or vulnerability?
Has he already suffered from illness attributable to stress at work? Have there recently been frequent or
prolonged absences which are uncharacteristic of him? Is there reason to think that these are
attributable to stress at work, for example because of complaints or warnings
from him or others?
6. The employer is generally entitled to
take what he is told by his employee at face value, unless he has good reason
to think to the contrary. He does not
generally have to make searching enquiries of the employee or seek permission
to make further enquiries of his medical advisers ...
7. To trigger a duty to take steps, the
indications of impending harm to health arising from stress at work must be
plain enough for any reasonable employer to realise that he should do something
about it ...
8. The employer is only in breach of duty
if he has failed to take the steps which are reasonable in the circumstances,
bearing in mind the magnitude of the risk of harm occurring, the gravity of the
harm which may occur, the costs and practicability of preventing it, and the
justifications for running the risk ...
9. The size and scope of the employer's
operation, its resources and the demands it faces are relevant in deciding what
is reasonable; these include the
interests of other employees and the need to treat them fairly, for example, in
any redistribution of duties ...
10. An employer can only reasonable be
expected to take steps which are likely to do some good: the court is likely to need expert evidence
on this ...
11. An employer who offers a confidential
advice service, with referral to appropriate counselling or treatment services,
is unlikely to be found in breach of duty ...
12. If the only reasonable and effective step
would have been to dismiss or demote the employee, the employer will not be in
breach of duty in allowing a willing employee to continue in the job ...
13. In all cases, therefore, it is necessary
to identify the steps which the employer both could and should have taken
before finding him in breach of his duty of care ...
14. The claimant must show that that breach
of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational
stress has caused the harm ...
15. Where the harm suffered has more than one
cause, the employer should only pay for that proportion of the harm suffered
which is attributable to his wrongdoing, unless the harm is truly
indivisible. It is for the defendant to
raise the question of apportionment ...
16. The assessment of damages will take
account of any pre-existing disorder or vulnerability and of the chance that
the claimant would have succumbed to a stress related disorder in any event ...
Defenders' Submissions
[18] The primary submissions made by counsel for the defenders were
that on the pursuer's averments: (a) the harm which occurred was not reasonable
foreseeable; and (b) there was a failure to specify what the defenders ought to
have done to avoid causing loss. He also
submitted that it was not fair, just and reasonable to impose a duty of care
and that the appropriate standard of any such duty would be that applicable to
cases of professional negligence.
(a) Was the Injury Reasonably Foreseeable?
[19] Counsel began by stating
that it was within judicial knowledge that conditions in prison can be
difficult. Prison officers have to deal
with unpleasant situations. The fact
that there may be periods of tension and stressful incidents was illustrated by
the pursuer's own experiences at Shotts Prison.
As he chose to continue as a prison officer, he must have known that
some degree of prisoner contact was inevitable. Further, some of those
prisoners might be aggressive or abusive.
[20] Counsel submitted that although the defenders knew that the
pursuer had had difficulties in his career, they were also entitled in large
measure to discount them. That was
because the defenders were entitled to assume that he was up to the normal
pressures of the job (Hatton para
29). They had received medical advice
that he was fit to carry out his duties.
Further, the pursuer had undertaken his duties without difficulty in the
period prior to the incident. Those
duties included daily contact with prisoners.
There was no sign that the pursuer might have an adverse reaction simply
by seeing Kelly. Accordingly, the
indications were not so plain as to make the defenders realise they had to do
something to prevent the pursuer going over the edge (Hatton paras 30 and 31).
They had not fallen below the standard to be properly expected of a
reasonable and prudent employer (Barber v
Somerset County Council [2004] 1WLR 1089 per Lord Walker of Gestingthorpe
at para 65).
[21] Counsel emphasised that the incident itself was an unusual
trigger event. The pursuer had only come
upon the scene after the assault had occurred.
Counsel suggested that his response came "out of the blue". It followed that the injury which he
sustained was not reasonable foreseeable.
Counsel referred to propositions (3), (5), (6) and (7) in Hatton.
(b) The Content of Duty of Care
[22] Counsel submitted that there was no adequate specification of
what the defenders ought to have done to avoid a breach of duty. On the pursuer's own averments, Kelly was a
difficult and disruptive prisoner.
Accordingly, it was a problem to place him anywhere within the
prison. It was not, however, pled that
the decision to transfer Kelly to A Hall was unreasonable. Instead the pursuer maintained that it was
the defenders' duty:
"... to take reasonable
care to take adequate and reasonable steps to avoid and minimise the
foreseeable risk of psychiatric injury to the pursuer, such as properly
considering alternative arrangements which were available to them such as
putting Kelly in B Hall or leaving him in Segregation for his remaining few
weeks or if Kelly had to go to A Hall by considering the feasibility of
utilising the pursuer elsewhere for the few weeks until Kelly was due for
release."
[23] Counsel for the defenders contended that in order to be
relevant, the pursuer would have to aver (a) that a proposed course of action
was reasonable and practicable; (b) that it could have been accomplished within
the relevant time scale; and (c) that it would have prevented the pursuer's
injury taking place.
[24] Counsel contended that a duty to consider and nothing more had
no content. Even if the injury was
reasonably foreseeable, it was necessary to set out the steps that the
defenders ought to have taken to prevent the injury (Barber paras 18 to 20 per Lord Rodger of
Earlsferry). Further, Counsel argued
that if the pursuer was so close to the edge, then it is hard to see how any
changes would have altered the course of events. Placing him on other duties elsewhere in the
prison service, with his underlying problems might have led to the same result.
[25] Counsel referred to Melville
v the Home Office (a case
reported within Hartman v South Essex Mental Health and Community
Care NHS Trust [2005] EWCA Civ 6, [2005] ICR 782, para 126f). Mr Melville was a prison health care officer,
whose duties included recovery of the bodies of prisoners who had committed
suicide. Since he started work in 1981
he had attended 8 such suicides, the last of which was on 4 May 1998.
On that occasion he had helped to cut down the body, remove a ligature
and attempt revival. Subsequently, he
developed a stress related illness and retired on the grounds of ill health
early the following year at the age of 49.
Counsel said that the distinguishing feature in Melville was that the Home Office recognised that witnessing a
suicide was a traumatic event. It had
procedures in place for providing support to such persons. In those circumstances, it was held that it
plainly did foresee that Mr Melville might suffer psychiatric injury by being
exposed to suicides. That could be
contrasted with the incident in the present case, which could not be classed as
particularly traumatic.
[26] Counsel also drew attention to a number of specific averments
made by the defenders regarding the steps they had taken in 2002 in relation to
the pursuer's proposed return to work:
"The defenders
explored all options to assist the pursuer's return to work on limited
duties. The defenders sought vacancies
for the pursuer at B or C grade with minimal prisoner contact. There were no such vacancies. In any event the pursuer did not wish to work
limited duties. In about August 2002,
the pursuer assured the defenders that he was fit to return to work with
prisoners."
Counsel accepted that at the stage
of a Procedure Roll debate, they were covered by the pursuer's blanket
denial. However, he criticised the
pursuer's lack of candour in responding to these matters in the pleadings and implied
that a fuller response might have had an impact upon the legal issues which
arose in the debate.
(c) Subsidiary Submissions
[27] Counsel also argued that if the pursuer had pled a relevant
duty of care, nonetheless it would not be fair, just and reasonable to impose
such a duty on the defenders (Gibson v
Orr 1999 SC 420 Lord Hamilton pp
436-7). He said that prison authorities
have various duties toward prisoners, including those placed in
segregation. He argued that there were
strong policy reasons which militated against imposing a duty on the defenders
to place a prisoner in a particular place within the prison. To do so would
concede to prisoners a degree of control over their placement within the
prison. As a second alternative argument, counsel submitted that the pursuer
had failed to aver that the decision to transfer Kelly was not one which any
ordinarily competent prison authority, acting with ordinary skill and care,
would have taken. Accordingly, there were no relevant averments as to the
appropriate standard of care.
Pursuer's Submissions
Leave to Amend
[28] Counsel for the pursuer began her submission toward the end of
the first day of the debate. At the
commencement of the second day, she sought to leave to amend. She conceded that there required to be a
greater degree of specification regarding the duties of care. Counsel for the defenders opposed the
motion. He argued that there was a
complete lack of specification as to the nature of the amendment that was
proposed. The pursuer had failed to give
any indication of how the points made on behalf of the defenders would be
met. No draft Minute of Amendment had
been tendered. Further, the motion was
made in the middle of a Procedure Roll discussion. He pointed out that an earlier diet of debate
fixed for June 2007 had been discharged as a result of a Minute of Amendment
lodged by the pursuer. The earlier
Minute was 19 pages long and had only been allowed under opposition. Counsel for the defenders stressed that his
Note of Arguments had been lodged in March 2007. Accordingly, the pursuer had been given ample
opportunity to respond to the points raised in advance of this hearing.
[29] In the exercise of my discretion, I refused the pursuer's
motion. In my view, the grounds of opposition advanced on behalf of the
defenders were well founded. The action
was signetted in February 2006 and the pursuer had been aware of the defenders'
legal arguments for over a year. He had
already significantly revised his written case.
Against that background and in the absence of specification as to the
nature of the amendment, I decided that it was not in the interests of justice
to grant further leave to amend.
[30] Subsequently, counsel for the pursuer made a further motion at
the bar seeking leave to amend Article 7 of the Condescendence (i) by deleting
"properly considering" at page 35D of the closed record and substituting
"using"; and (ii) by deleting "considering the feasibility of" at page
35E. That motion was also opposed. In my view, counsel for the pursuer was in
essence inviting me to revisit a decision that I had already made. Further, the proposed amendment did not meet
all of the points made on behalf of the defenders. In those circumstances, I also refused that
motion.
(a) Reasonable Foreseeability
[31] Counsel for the pursuer submitted that it was reasonably
foreseeable to the defenders that the pursuer might suffer harm, if he became
involved with Kelly on A Hall. She
relied on a number of factors in advancing that proposition. First, there was the pursuer's history of
psychological difficulties in his employment.
In the past, he had suffered from a generalised anxiety disorder and the
defenders ought to have known that he was at risk of another episode. Secondly, they had received medical advice
that the pursuer should be monitored on his return to work in 2002. Thirdly, direct threats of harm had been made
against him by Kelly. Those threats were
deemed sufficiently serious for his supervisor to advise him to contact the
police. Fourthly, counsel submitted that
it was only by chance that the pursuer was not one of the officers involved in
restraining Kelly. Against that
background, the defenders should have realised there were clear risks that the
pursuer might not cope. She founded on Hatton propositions (3) and (5) and Melville.
(b) Content of the Duty of Care
[32] Counsel accepted that the pursuer was keen to return to work in
2002, but stressed that was only on the basis that he would require to be
monitored. She submitted that Kelly was
known to be a violent and aggressive prisoner.
Given that he had made direct threats against the pursuer, it was
incumbent upon the defenders to discuss the pursuer's position and minimise any
risks to him. Their options were: (a) to place Kelly in B Hall; (b) to leave him in the Segregation Unit; or
(c) to examine the practicability of using the pursuer elsewhere for a few
weeks. This was not done (Hatton propositions (8) and (10)). Counsel also submitted that the pursuer did
not have to establish that the breach of duty caused the injury. It was enough for an employee to show that
the breach made a material contribution to his ill health (Hatton para 35).
(c) Subsidiary Submissions
[33] Counsel for the pursuer made no detailed submissions in respect
of these arguments. That may be because they
had not been pressed with force by counsel for the defenders.
Discussion
Reasonable
Foreseeability
[34] This is an unusual "stress at work"
case for two reasons. First, it does not
involve any question of work overload, which is a typical feature of such
cases. Secondly, the actual event which
led to the pursuer's early retirement was not one which on its face was
obviously traumatic.
[35] On the question of the defender's knowledge, it is plain that
they knew that the pursuer had a history of problems associated with stress at
work. They were also aware that in July
2003 (a) he was subject to a police investigation; (b) he had been unsuccessful
in his complaint against the Human Resources Department; and (c) Kelly had
made threats against him.
[36] However, those factors must be set in context. The defenders had received medical advice
indicating that the pursuer was fit to return to work in November 2002. They were entitled to assume that he was able
to perform his duties. There was no evidence
in the eight month period prior to the assault that he was suffering from any
difficulty. In particular, there was no
plain sign that he was suffering from stress.
There had been no frequent or prolonged absences from work. The pursuer did not complain of problems, nor
were there warnings from others, such as his mentor.
[37] The pursuer accepts that it is not unusual for prisoners to
threaten prison staff, (19D-E of the Closed Record). So the fact that Kelly had made threats was
not of itself something which should in my view have alerted the defenders to
the likelihood of the pursuer being at risk of psychiatric injury. Further, there was nothing to put them on
notice that the police investigation and the rejection of his complaint were
causing him difficulty.
[38] Those considerations require to be coupled with the actual event
which led to the pursuer's injury. In my
view, the defenders could not reasonably foresee that he would react in the way
he did. The assault by Kelly was on
another prisoner. Although the pursuer
came upon its aftermath, he did not witness the assault itself, nor did he
participate in restraining Kelly.
[39] It follows in my view that the injury kind was not reasonably
foreseeable and therefore the threshold question (Barber proposition (2)) falls to be answered in the negative.
Duty
of care
[40] Lord Walker of Gestingthorpe has approved the Hatton propositions as "useful practical
guidance" (Barber para 65). He
continued, however, that "the best statement of general principle" remains that
given by Swanwick J in Stokes v Guest, Keen & Nettlefold (Bolts and
Nuts) Ltd [1968] 1 WLR 1776, 1783:
"the overall test is still the conduct of the employer,
taking positive thought for the safety of his workers in the light of what he
knows or ought to know."
[41] The pursuer avers that following his return to work in contact
with prisoners in November 2002 and in particular in July and August 2003, it
was the defenders' duty to obtain adequate assessment, assistance and guidance
on how the pursuer was coping in the workplace.
The information sought should have covered two matters. First, the risk of his suffering harm to his
psychiatric health. Secondly, what steps
they might reasonable take to avoid or in any event minimise the risk
"such as
properly considering the alternative arrangements which were available to them
such as putting Prisoner Kelly in B Hall or leaving him in Segregation for his
remaining few weeks or if Prisoner Kelly had to go to A Hall by considering the
feasibility of utilising the pursuer elsewhere for the few weeks until Kelly
was due for release."
[42] In my view, the use of the phrase "properly considering"
presented a real difficulty for the pursuer.
In order to be relevant, the pleadings require to say that after such
consideration (a) the defenders would have adopted a particular course of
action; and (b) that course of action
would have made a difference. Otherwise
the duty has no content, because the outcome might have been exactly the
same. The defenders could have decided
to transfer Kelly to A Hall and not altered the pursuer's duties, without being
in breach of duty.
[43] The pursuer places reliance on a policy document issued by the
defenders entitled "Goal 2". It states
that
"the personal and psychological safety of those who work or
are detained in Barlinnie alike will be and will feel safe, both from physical
assault or injury and, as far as is achievable in a penal setting, from
psychological distress".
In Condescendence 7, the pursuer translates that into a duty upon the
defenders to devise, maintain and enforce
"a suitable system of mentoring to adequately protect the
pursuer from psychological distress and anxiety".
It is my opinion, however, that the
words "as far as achievable in a penal setting" make it plain that Goal 2 only
amounted to a policy aspiration. In any
event, the defenders did appoint Mr Christie as the pursuer's mentor and there
is no averment that he was unsuitable.
[44] There is also the question of what effect the proposed
arrangements, if implemented, would have had on the pursuer. On the pursuer's own account, it appears that
he was likely to sustain psychiatric injury simply by seeing Kelly anywhere in
the prison. No case is made, however,
that the defenders required to set up some cordon sanitaire to prevent the two men
from coming into any form of contact at all. Given
[45] Accordingly, I held that the duties pled by the pursuer are
irrelevant.
The
Subsidiary Submissions
[46] Both these submissions were made on an esto basis. Standing the view I took
in relation to the first two grounds of challenge and having regard to the lack
of discussion about this matter at debate, I declined to form any final view on
these issues.
Conclusion
[47] In light of the above, I sustained the defenders' first
plea-in-law and dismissed the action.
