Case Reference Number:

A274/06

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

JUDGMENT OF SHERIFF G A WAY

in causa

PURSUER RHONA WANDS, residing at 16 Glass Street, Markinch, Fife

against

DEFENDERS FIFE COUNCIL, Fife House, North Street, Glenrothes, Fife KY7 5LT

Counsel for Pursuer: Barnes; Counsel for the Defenders: Marney.

Kirkcaldy 5 August 2009. The Sheriff, having resumed consideration of the cause, sanctions the cause as suitable for the employment of counsel; allows the Record to be amended at Page 9 lines 21 - 23 by deleting the words "tactic" and "deployed" and replacing them with "response" and "given" respectively; quoad ultra appoints parties to be heard further on a date to be afterwards fixed.

Cases referred to:-

Jamieson v Jamieson 1952 SC (HL) 44

Hunter v Hanley 1955 SC 200

Bolam v Frien Hospital Management Committee [1957] 1WLR 582

William Miller v SSEB 1958 SC (HL) 20

Caparo Industries Plc v Dickman 1990 2 AC 605

Gibson v Strathclyde Regional Council 1993 SLT 1243

X v Bedfordshire County Council [1995] 2AC 633

Scott v Lothian Regional Council CSOH 29/09/1998

Rorrison v West Lothian Council [2000] SCLR 245

Phelps v Hillingdon London Borough Council [2001] 2AC 619

Bradford Smart v West Sussex County Council
[2002] EWCA Civ7 AC

Hatton v Sutherland [2002] ICR 613

Robinson v St Helens MBC [2002] EWCA Civ1099 AC

Barber v Somerset CC [2004] ICR 457

Shaw v London Borough of Redbridge [2005] EWHC 150 (QB)

JM v Fife Council CSOH 5/12/2008

Texts referred to:

McGregor on Damages 2003 (17^th Ed) 3-011

Tort Liability for Psychiatric Damage 2003 pp 45-47

BACKGROUND

The pursuer's factual case

1.      The pursuer, Rhona Wands, was born in 1987 and entered the education system in Fife at the age of four and a half. She attended the pre-school nursery section of Markinch Primary School (hereafter Markinch) and then progressed into the school proper. She stayed at Markinch until she moved to Auchmuty High School (hereafter Auchmuty) for her secondary education in 1999. She was at Auchmuty until June 2003. She accordingly spent some 13 years as a pupil at educational establishments under the control of the defenders as the Education Authority under the relevant legislation.

2.      The pursuer in this case seeks damages from the defenders as reparation for loss and damage she alleges she sustained to her health, both physical and psychological, which resulted in suffering and a lack of potential educational attainment with consequent loss of employability. This, she says, was a result of by their breach of a direct duty of care owed to her by the defenders and by her teachers in the course of their employment for whom the defenders are vicariously liable. The issue for determination at the present time is whether the pursuer has pled a valid case for inquiry, or whether, as the defenders maintain, the claim should be dismissed as fundamentally irrelevant. The averments are set out, at some length, in the Record and I would not normally rehearse them here in detail. I must, however, set out the essential thread of the case to give form and context to my later observations.

3.      The old cliché invites reminiscence on school days as amongst the happiest years of life, but sadly, the pursuer has very different memories. She recounts that from her earliest days she attracted the adverse attention of children who subjected her to a systematic campaign of physical and verbal abuse. She describes how in pre-school she would come home with scratches and bruises. She began to complain of head and stomach aches to avoid going to nursery. She was sometimes separated from her classmates to quarantine her from her abusers. The pursuer's mother raised the pursuer's emerging difficulties with teachers.

4.      She progressed to the primary school section of Markinch. She does not provide much detail of her experience of primary education until she reaches P4 when she states that bullying escalated. I take from this that life was perhaps not plain sailing from P1 onwards but that things took a distinct turn for the worse at P4. She alleges that four girls in particular became the bane of her existence. She does not provide any specification of what precisely these girls did to her, physically or verbally, but describes their activities generically as "bullying". The pursuer's parents raised their concerns at the alleged bullying of their daughter with the Head teacher and class teachers at Markinch on numerous occasions. The pursuer avers that her parents met with the Headmaster, Mr Archie Laurie and his successor Ms Senga Hogg. They also appear to have had meetings with Ms Birse the Depute Head perhaps as often as twelve times. The pursuer claims that no effective action to remedy her situation was taken by the staff at Markinch; rather they generally focussed on her need to develop coping strategies and avoid behaviour which attracted adverse reactions in others. She avers that neither she nor her parents were made aware of the primary school's disciplinary or anti-bullying policy.

5.      In 1999 pursuer entered secondary school level at Auchmuty. The pursuer's four older sisters had attended Auchmuty and her parents had, in consequence, established links with the teaching staff. They sought to confront the problems experienced by the pursuer at Markinch by flagging up the issues with the staff. They met with the Rector, Mr Kelly, and his depute, Mr Black. They provided a list of children who they identified as participating in the campaign of bullying against the pursuer. They say they urged the authorities at Auchmuty to pre-empt trouble by ensuring that those children were not put in the same class as the pursuer. The pursuer says that her parents were assured that she would be protected: Auchmuty had an anti-bullying policy and such behaviour would not be tolerated. In addition the pursuer states that even if her parents had not taken steps to inform Auchmuty of her unhappy experiences at Markinch the school should have been fully aware of her circumstances through the medium of a pupil progress report prepared by Markinch and communicated to Auchmuty. The pursuer avers that this transfer of information is standard practice and sanctioned by both The Schools (Scotland) Code 1956 and Scottish Education Manual.

6.      The pursuer goes on to describe her time at Auchmuty. She avers that despite the information laid before the staff by her parents and which, she says, they ought to have gleaned from her records she was placed in an S1 class with at least three of her alleged tormentors from Markinch. She claims that they resumed their bullying campaign against her. She describes an almost daily diet of taunting of her accent; mockery of her appearance; disparaging remarks about her family and physical assault. She says she was regularly hit, pinched, elbowed and kicked. Her hair was also pulled. The pursuer's parents raised these issues with staff and formed the opinion that they seemed unaware of the pursuer's long history of problems with these other pupils. In January 2000 her parents complained to an assistant Rector Mr Thomson. They also informed him of alleged assault on the pursuer outwith the school. The school authorities appear to have acknowledged that there were problems between the girls. The pursuer's parents began to make written complaint to Auchmuty. They wrote in February 2000 about an assault during a CDT class where, it was alleged, the teacher present did not intervene. A further letter was sent in April 2000 which catalogued a series of alleged incidents including: four assaults; having her school bag torn and work destroyed; being spat upon; private papers taken from a school file and passed around pupils. Mr Black, the Depute Rector, replied by letter dated 26 April 2000 acknowledging the pursuers parents concerns and suggesting some strategies including a transfer of science class. They also decided to assign to the pursuer a senior pupil to act as her "befriender".

7.      The befriender was unfortunately to play the pursuer false. She led her into a deliberate ambush where the pursuer's nemesis lay in wait for her. She was grabbed and kicked and punched by a gang of girls. The pursuer reported the incident but her befriender, who was present throughout, feigned a memory lapse and failed to corroborate her account. The befriender experiment was soon terminated thereafter. Another strategy was to provide the pursuer with what was called a "safe haven" card. This device enabled the pursuer to seek the unquestioned assistance of any adult within the school who would ensure she was taken to a safe place. This the pursuer alleges merely marked her out as a victim and increased her sense of isolation. She states that when the school finally decided to move her to another class to complete S1 this was seen by others as a punitive measure against her and not for her protection. She lost confidence in the school to take any effective action to protect her.

8.      The pursuer's parents escalated their complaints. They wrote to the defenders' Education Department setting out their concerns at events at Auchmuty. They received a response from Mr Les Fargie, on behalf of the defenders, confirming that the school would "confront bullying and takes such cases very seriously". The pursuer's position is that this led to no improvement of any kind. Indeed she claims that the school began to take the stance that she and her parents were materially contributing to the problems in school by failing to accept that the pursuer needed to address her own behaviour. Her parents are alleged to have undermined the authority of school staff. She alleges a serious incident in December 2001. One of the girls alleged to be a ring leader in campaign against the pursuer, called Kuszeluk, was alleged to have made threatening gestures towards her in class. The teacher on being told of this promised to keep an eye on it. When the pursuer left the school gates for lunch she describes being set upon by Kuszeluk and a gang of girls. She was kicked in the head and ribs. She suffered dizziness, nausea, blurred vision and headache. She was referred by her GP to Stratheden Hospital and a community therapy nurse to help her address the increasing strain of chronic bullying. In June 2002 the pursuer alleges that she was beaten up, outside school hours, by three girls from Auchmuty. Her attendance record became increasingly poor. She was frequently sent to study alone in the school library or sent home early for home study. She sat her Standard Grades in S4. Mr John Montgomery, one of the Deputy Rectors at Auchmuty, wrote to the Scottish Qualifications Agency on 27 March 2003 seeking an extension of a time deadline on the grounds that the pursuer had "suffered chronic bullying". The school also confirmed that the need for home tuition was as a result of "chronic bullying from other pupils which eventually lead to it being impossible for her to attend". The pursuer felt unable to return to Auchmuty for S5 and indeed at that stage she left formal education entirely.

The Defenders' factual case

9.      The defenders do not deny that the pursuer had unhappy experiences during her time in Fife schools but they paint a rather different picture of the well spring of these difficulties and the educational authorities' response to them. They say that Rhona, herself, was frequently disruptive and disobedient. She was part, at least, of the problem and obstructed attempts at solution. They allege that she initiated conflict and that, generally, her behaviour and attitude towards other pupils alienated them. They also allege that the pursuer's parents materially contributed to the problems their daughter experienced at school. It is said that they would not accept that the pursuer was ever at fault. They challenged any attempt to discipline the pursuer and blamed the school staff for failing to address the campaign waged against her by other pupils. The defenders state that the pursuer's parents set out to be the final arbiters in relation to any activity relating to their daughter and that this effectively undermined the authority of the staff and materially contributed to the pursuer's sense of and actual experience of isolation within the education system.

10.  They deny that the pursuer was bullied at Markinch and describe in some detail the interaction between the teaching staff and both the pursuer and her parents. They aver that Markinch used a number of strategies to encourage good behaviour and appropriate relations between pupils: a "promoting positive behaviour policy"; a yellow/red card system; "circle time" class discussions; newsletters and an open door policy to inform and involve parents in their child's life at Markinch. They aver that there were frequent meetings with the pursuer's parents and mediation sessions were organized by the Head teacher between the pursuers and certain other pupils to try and resolve differences. They also narrate the transitional from Markinch to Auchmuty which they say involved sending a pupil progress report which the pursuer's class teacher would have personally discussed with the guidance staff at Auchmuty; visits by both teachers and pupils from Markinch to Auchmuty including a Sports day event. The pursuer would have attended a camp where she would have taken part in activities with her proposed S1 class which was supervised by staff from Auchmuty. They deny that the pursuer was assigned to an S1 class at Auchmuty with the very girls she identified as her tormentors.

11.  The defenders then describe a somewhat similar pattern of events at Auchmuty as they say emerged at Markinch. The pursuer was herself the subject of adverse notice. She was disruptive. She failed to submit homework on time. She was oppositional and insolent to staff. She was alleged to have put chewing gum in another girl's hair. She is said to have spread rumours about another girl and thereby provoked her enmity. She refused to accept punishment exercises. The defenders also claim that the pursuer's parents adopted the same stance to alleged behavioural issues of their daughter as at Markinch: they attributed everything to failures of the school to protect the pursuer and accepted no blame whatsoever.

12. The defenders admit that throughout the pursuer's time at Auchmuty there were incidents. The pursuer had eggs thrown at her; she was kicked and hit in the corridors; she was probably led into an ambush by her "be-friender"; she was certainly subject to a degree of verbal abuse and threats; she was assaulted outwith the school on at least two occasions. The defenders' position is that the school authorities responded to these issues in a proper and professional manner. They investigated all complaints and reports concerning the pursuer promptly and thoroughly. Senior staff had meetings with the pursuer. They corresponded with her parents. They offered a number of coping strategies including: the "Be-friender" scheme; the "safe haven" card; a referral to the defenders' Psychological Service; home supported learning and even transfer to another High School outwith the area. They disciplined other pupils. They excluded one girl and only re-admitted her after interviewing her father and receiving an undertaking that she would not re-offend against the pursuer. The defenders also aver that the pursuer would wilfully ignore advice. In relation to the incident described by the pursuer where she had been threatened in class and was later assaulted when she went beyond the school gates at lunch time, the defenders allege that the class teacher segregated the pursuer from the intimidation and arranged for her to have her lunch in the senior dining room where she would be safe. The pursuer did not go to the dining room but rather left the school grounds and put herself at risk. The school assisted her by supporting her request for consideration to be taken of her problems in exams and the like. They did all that a responsible education authority could be expected to do both directly and through their employees.

The Submissions for the Defenders

13.  It was common cause between counsel that although the defenders responsibility for education in their area arose from statute this case did not involve any breach of a statutory duty: the issue was grounded in professional negligence. This was allied to an important concession made by Mr Barnes for the pursuer in his submissions to which I will return later. They also stipulated that the debate would focus on the single issue of dismissal and that if I were, in due course, not minded to do so but indicated that certain averments may be excluded from probation they would wish to address me at a further diet. Indeed it was, helpfully, indicated that counsel might be able to reach a measure of agreement on a more surgical approach to exclusion of averments should that prove necessary. This seemed a practical proposal, in a matter of complexity and importance to the parties, as the existing diet was only set down for two days.

14.  Counsel for the defenders, Mr Marney, invited me to dismiss the case. He would demonstrate that, even if the pursuer proved everything she offered to prove, her case was bound to fail. This was the well known test in Jamieson v Jamieson and approved in Bolam v Friern Hospital Management Committee. His primary criticism of the pursuer's pleadings was that they failed to adequately set out the type of factual matrix necessary to meet the established legal tests for liability in such cases and, equally, the lack of specification was so profound as to deny fair notice to the defenders of the case they must answer at proof. The pursuer's pleadings were in counsel's view "a scatter gun approach hoping something would stick." He addressed these shortcomings under six separate headings: the test of professional negligence; the direct liability of a local authority such as the defenders; liability of incidents outwith school; forseeability; loss; and general fair notice.

15.  Mr Marney observed that the pursuer alleges that the defenders directly and the teaching staff for whom they were vicariously liable, had failed to protect her from bullying. This could only be an attack on the alleged actions, decisions or failures of the defenders, its officers and employees. Counsel referred me to the well known test for professional negligence to be found in cases of Hunter v Hanley and Bolam cited above. Lord Clyde in Hanley [at page 204] expressed it thus:

"To succeed in an action based on negligence, whether against a doctor or against anyone else, it is of course necessary to establish a breach of that duty to take care which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances....But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."

Counsel elaborated upon this basic statement of the law by submitting that for sound reasons of policy the courts had reviewed the actions of local authorities and professional staff with special rigour over the years and that from high judicial authority a common thread could be discerned which emphasized that liability in such cases would arise from exceptional, specific and identifiable mistakes made by the organisations like the defenders or their staff or putting it another way, spelling out their manifest incompetence.

16. With these propositions in mind he referred me, in some detail, to a series of cases involving the alleged negligence of local authorities or their employees. In Phelps v Hillingdon London Borough Council the House of Lords considered, in a series of linked appeals, the liability of an education authority for alleged failure to provide appropriate educational services for pupils. The facts in each appeal were slightly different: in one an educational psychologist employed by the defenders failed to diagnose dyslexia; in another the defenders were alleged to have failed to provide suitable aid to child with muscular dystrophy. In Phelps which was, and remains, the landmark case in relation to the failure to diagnose dyslexia, the court had to consider claims for loss of earnings or loss of earning capacity and handicap on the labour market, and a claim for "loss of a congenial occupation". It also had to consider damages which were claimed by analogy to cases of mental impairment, and included a history of frustration, anti-social behaviour, loss of confidence and loss of self esteem which the judge found established on the evidence. The defenders contended that as far as the latter were concerned, the pursuers had not suffered any personal injury recognised by law. The trial judge, Mr Justice Garland (page 62 of the report) put this issue in the following terms:

"Can the plaintiff recover on the basis that on the balance of probabilities, had her condition been diagnosed earlier, it would to some extent have been ameliorated, and by raising her level of literacy improved her quality of life and prospects of employment? Does the law of tort recognise a lost gain as well as an inflicted loss?"

He derived assistance from the judgments of the Court of Appeal in E (a minor) v Dorset County Council [1995] 2AC 633. At page 703 Lord Bingham (then Sir Thomas Bingham MR) said:

"I would accept that certain elements pleaded as damage by Richard (for example the allegation that he suffered distress and that he is a shy, diffident person) cannot be compensated in damages, and similar points may be made about E's claim that he was "upset". It is also quite clear that none of the plaintiffs can recover damages for a congenital defect. If, however, a plaintiff can show (1) that the adverse consequences of his congenital defect could have been mitigated by early diagnosis of the defect and appropriate treatment or education provision; (2) that the adverse consequences of his congenital defect were not mitigated because early diagnosis was not made, or appropriate treatment not given or provision not made, with resulting detriment to his level of educational attainment and employability; and (3) that this damage is not too remote I do not regard the claim for damage to be necessarily bad."

In the final appeal the House of Lords, finding against the local authority in each case, made some highly significant observations. Lord Slynn of Hadley states (at page 653 H onwards):-

" I fully agree with what was said by Lord Browne-Wilkinson in X (a minor) v Bedfordshire County Council [1995] 2AC 633) that a head teacher owes "a duty of care to exercise skills of a headmaster in relation to such [sc a child's] educational needs" and a special advisory teacher brought into advise on the educational needs of a specific pupil, particularly if he knows that his advice will be communicated to the pupils parents, "owes a duty to the child to exercise the skill and care of a reasonable advisory teacher".

His Lordship continues (at 654 F-G):

"The result of a failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can be no doubt that if foreseeability and causation are established psychological injury may constitute damage for the purpose of the common law. But so in my view can a failure to diagnose a congenital condition and to take the appropriate action as a result of which a child's level of achievement is reduced which leads to loss of employment and wages. Questions as to causation and as to the quantum of damage, particularly if actions are brought long after the event, may be very difficult, but there is no reason in principle to rule out such claims."

Lord Slynn, however, adds the following caveats (at 655 D):

"The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. But though claims should not be encouraged and the courts should not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded. "

A similar warning was issued by Lord Nicholls of Birkenhead (at 667 H):

"This is not to open the door to claims based on the poor quality of teaching. It is one thing for the law to provide a remedy in damages when there is manifest incompetence or negligence comprising specific, identifiable mistakes. It would be an altogether different matter to countenance claims of a more general nature, to the effect that the child did not receive an adequate education at school, or that a particular teacher failed to teach properly. Proof of under performance by a child is not by itself evidence of negligent teaching. There are many many reasons for under performance."

17. Mr Marney also carefully took me through all of the other authorities, as set out above, but for the sake of brevity I will restrict myself to quoting from those I found of particular assistance. In Bradford-Smart v West Sussex County Council (a case concerning school bullying to which I will return) the English Court of Appeal (Lord Justice Judge, Lady Hale (as she now is) and Mr Justice Henry) unanimously stated :

"We would add that in all these cases it is necessary to identify with some precision any breach of duty found. It is also important to consider whether the steps proposed would have been effective in preventing the bullying. It is not enough to find that there has been bullying, to find some breach of duty, and then to find that the bullying caused the injury. There must be a causal connection between the breach of duty and the injury. That will often be difficult to prove."

Mr Marney therefore invited me to examine the pursuer's averments of professional negligence against these high and precise standards. He pointed to the lack of any attempt to make a distinction between the various actors, ranging from the staff at nursery level all the way through Markinch and Auchmuty to the defenders Education Department, and their individual decisions which may have impacted upon the pursuer. There was, he said, equally no meaningful attempt to locate any specific acts of manifest incompetence along the time line which ran for some thirteen years. The defenders and their staff had the right to fair notice of the case they had to answer. How could the defenders be expected to prepare with the pleadings in their present case?

18. He next addressed the averments which the pursuer relied upon to establish a claim against the defenders directly. He submitted that the duties, said to rest upon the defenders for their own alleged shortcomings, were formulated like a statutory claim akin to say an occupier's liability case. He challenged formulations which relied upon the defenders' duties to take reasonable steps to ensure that anti bullying strategies were reasonably implemented. There was no attempt made to define "bullying" or to prove what would have been reasonable in the circumstances. He was critical of phrases such as "adequate support mechanisms" which offered no basis in fact to show what was said to be adequate or how any of these vague statements were logically and causally linked to a failure of professional judgment or some manifest incompetence or wrong done to the pursuer. All the pursuer seeks to achieve is a proof where she hopes evidence to her advantage would come out in the wash. This would place the defenders and their professional staff in an invidious and prejudicial position. How are they to assess their work, actions and decisions against the tests in Hunter v Hanley and Bolam if they do not know how they are said to be at fault?

Lord Slynn in Phelps (page 658 B) sets out his views on direct liability thus:

"I do not, rule out the possibility of a direct claim in all situations where the local authority is exercising its powers. If it exercises its discretion by deciding to set up a particular scheme pursuant to a policy which it has lawfully adopted, there is no, or at least there is unlikely to be any, common law duty of care. If, however, it then, for example, appoints to carry out the duties in regard to children with special educational needs a psychologist or other professionals who at the outset transparently are neither qualified nor competent to carry out the duties, the position is different. That may be an unlikely scenario, but if it happens, I do not see why as a matter of principle a claim at common law in negligence should never be possible. Over-use of the distinction between policy and operational matters so as respectively to limit or create liability has been criticised, but there is some validity in the distinction. Just as the individual social worker in Barrett v. Enfield London Borough Council could be "negligent in an operational manner" so it seems to me that the local education authority could in some circumstances owe a duty of care and be negligent in the performance of it. The fact that the parents have their own duties ...... and that consultation and appeal procedures exist (of which the parents may or may not be informed) does not seem to me to lead to the conclusion that a duty of care does not or should not exist. Since the authority can only act through its employees or agents, and if they are negligent vicarious liability will arise, it may rarely be necessary to invoke a claim for direct liability."

19. The pursuer's averments were little more than a series of assertions. For example she says that it was the defenders duty to involve an educational psychologist but does not explain why. Counsel referred me to the well known case of Gibson v Strathclyde Regional Council a leading case on liability to inspect pavements for slipping and tripping hazards. The Court there held that, to establish that a duty to inspect lay upon the local authority, specification of the nature of that duty was essential. Lord Murray states (at page 1247):

"The short point taken by counsel for the appellants was that the averment added by way of amendment relating to daily inspection was irrelevant. A bald averment that daily inspection was reasonable and practicable did not disclose any evidential basis, such as general practice of roads authorities, upon which it would be open to a court to infer that daily inspection was reasonable and practicable. In the absence of an evidential basis to ground such an inference the case was bound to fail. If there was an intention to lead such evidence fair notice required an indication of what it was to be. If no such evidence was to be led, the inference to be drawn from the complete lack of specification in the amendment was that there would be no factual basis upon which a court could infer that the duty of inspection desiderated was incumbent upon the appellants."

Mr Marney stated that from Gibson one could see that it was necessary for the pursuer to set up the alleged failure or failures of the defender as a species of negligence and this required the classic who, where, when, why, narrative to establish a causal link to alleged damage and loss. In the event that the pursuer wished to challenge some system of the defenders and its alleged implementation then the court must know what the system is said to be and how it failed. Does the alleged system have remediable faults or is it so woefully inadequate as to be actionable by its very existence? If it could be better how should the defenders have known of its shortcomings and against what yardstick should it be compared? In fairness to Mr Barnes, for the pursuer, he accepted that in this case the distinction between direct and vicarious liability was very fine and that it was not necessary to labour this point. Counsel for the defender drew this head of his submissions to a close reminding me that it was necessary for there to be a reason why the local authority should be directly as opposed to vicariously liable and the pursuers pleading simply did not disclose this.

20.  He then turned to the pursuers averments narrating events outwith school hours or school premises. The short point here was that the defenders could not be held responsible for alleged wrongdoings outwith their legal or physical control. He referred again to Bradford-Smart v West Sussex County Council a case which related specifically to school bullying. A child, Leah, was seriously bullied but although there were threats of what would happen to her at school the perpetrators were careful to largely restrict their unpleasantness to outside areas such as the bus to and from school. The Court of Appeal observed:

"The question is whether it was a breach of this school's duty of care towards Leah to fail to take any action against the pupils she said were bullying her outside school. The usual factors are all relevant in determining what a reasonable school might be expected to do: the extent to which it was foreseeable that failure to do so would result in actual harm to the victim, the extent of the risk, the magnitude of the harm, and the practicability and likely effectiveness of any steps which might be taken. We also accept the point made by Mr Faulks QC, on behalf of the school, that the school's duties arise because of its educational duties towards the child. Indeed those duties are also owed to all the other children in the school. Like any parent, the school will often be faced, in this or in any other context, with the problem of balancing one child's interests with another's. There will also be difficult questions of judgment as to how far the school should seek to step in where the parents or other agencies such as the police and social services have not done so. Above all, an ineffective intervention may in fact make matters much worse for the victim because she cannot be protected while she is out of school. It cannot be a breach of duty to fail to take steps which are unlikely to do much good. All of these considerations are also subject to the Bolam principle: if a reasonable body of professional opinion would not take such steps, then this school is not liable for failing to do so. Hence, although we accept that a school may on occasions be in breach of duty for failing to take such steps as are within its power to combat harmful behaviour of one pupil towards another even when they are outside school, those occasions will be few and far between."

Mr Marney submitted that the professionals at Auchmuty had done all that could be expected of them in relation to incidents outwith the school and that the pursuer had failed to relevantly aver anything which would suggest otherwise or make any causal connection between these incidents and any alleged fault of the defenders.

21.  Counsel for the defender attacked the pursuer's averments of loss. He invited me to accept that there were no relevant averments to link any of the statements made by the pursuer in article of condescendence 6 to any physical injury or recognized psychiatric illness. The bald averment that her health has deteriorated is not enough; panic attacks, low self esteem and moods do not amount to psychiatric illness. He referred me to the opinion of Lord Reed in Rorriston v West Lothian Council. This was a work related stress case. The pursuer, who was a qualified nurse, was allegedly subjected to a campaign of humiliation and harassment by management which caused her to suffer "severe anxiety, panic attacks, and loss of confidence and self esteem. She had acute psychological distress. She suffered depression." She had, however, at no time suffered any physical abuse or physical harm of any kind. Lord Reed dismissed the action, at debate, holding the pursuer's case irrelevant because she had not averred a medically recognized psychiatric condition. His Lordship opines at Page 5:

"The action being based on negligence, the pursuer can recover only if she has sustained psychiatric injury in the form of a recognised psychiatric illness. For this proposition it is sufficient to cite White v Chief Constable of South Yorkshire [1998] 3 WLR 1509 at 1518 per Lord Goff of Chieveley; at 1539 per Lord Steyn; and at 1548 per Lord Hoffmann...... The pursuer's pleadings in the present case do not appear to me, fairly read, to give notice of any intention to prove that she has suffered from a recognised psychiatric illness. I have already quoted the averment that as a result of the conduct complained of the pursuer suffered "psychological injuries"; and the averments that Andrews ought to have foreseen the risk of "psychological injury". I have also quoted the averments of damage, which are of "emotional symptoms [which] constituted psychological damage" and "psychological distress" requiring "psychological treatment". There is an averment that she suffered depression, but in its context (unlike in Ward v Scotrail Railways Ltd) that does not appear to mean clinical depression as distinct from low mood; nor did the pursuer's counsel suggest otherwise."

22.  Finally, Mr Marney submitted that the lack of specification denied fair notice. He objected to the pursuer's failure to offer even a working definition of the term bullying. He particularly focused on the lack of any factual matrix for the allegations of "bullying" from nursery to P4 at Markinch. He emphasised his earlier observations that the defenders were entitled to the classic who, what, where, how narrative which was simply not pled. He challenged words such as "escalate" when we are not told from what base point and in what manner things are said to have got worse? He was especially critical of the pursuer's averments concerning record keeping and reports which were related to evidence gathering which was up to the pursuer and wholly irrelevant. In short, all the pursuer offered to prove was that the pursuer was subject to a series of unpleasant incidents perpetrated by other children, including acts outwith school, which the defenders, allegedly, failed to effectively counter. This resulted in the pursuer allegedly suffering panic attacks, low moods and self esteem. She became hostile to continuing at school and to learning environments in general. This, in Mr Marney's submission, was still no more than a failure to educate claim which, on the authorities cited, the law does not admit. The pursuer was not offering to prove that individual acts, even taken collectively, of harm were causally linked to any of her alleged symptoms. Moreover the pursuer does not offer to prove that any action or indeed inactivity of the defenders was causually linked to her loss or damage. This action remained one of professional negligence and the well established tests must be applied.

23.  In closing counsel for the defender reminded me of an important concession made by Mr Barnes for the pursuer. He accepted that his case was based on what he described as "harm in the round" and that he was not able to aver individual acts of negligence on a precise time line. He conceded that if I held that the law required such pleading for the pursuer's case to succeed then it must fail. Mr Marney invited me to so hold and dismiss the case as irrelevant.

The Submissions for the Pursuer

24.  This was the defenders debate and the submissions made by Mr Barnes in response, though able and thought provoking, were somewhat shorter. He reminded me that the test of relevance set out in Jamieson was a high one and that it would be a rare case, especially one alleging delictual loss, that could be dismissed without enquiry into the facts. He did concede, as I have said, that he was not able to aver that professional negligence was to be found in specific acts and alleged failures along a given time line. His case was one of harm in the round. He specifically conceded that the case pleaded against the staff at Markinch lacked specification as a standalone issue but he invited me to consider those averments as giving a context to the later averments of failure to protect the pursuer at Auchmuty. The transition between Markinch and Auchmuty was crucial to understanding the case. The pupil progress reports should have shown the very real risk to the pursuer when she arrived at Auchmuty. The pursuer also offers to prove that, in addition, precise and specific information was laid before the authorities at Auchmuty by her parents. The pursuer avers that the risks to her were not taken seriously and this put her at greater than normal risk. She describes what anyone would understand as bullying: physical assault; verbal abuse; taunting based on physical attributes and the like. She narrates a negative attitude towards her by the staff which she claims reinforced her sense of isolation. This actively prevented her from developing normal relationships which helped to fan the flames of antipathy of other pupils towards her.

25.  She offers to prove that the defenders failed to implement their own established behaviour management policies either directly or through their staff. She also offers to prove that they failed to meet appropriate professional standards in their selection of such anti-bullying techniques as they did deploy. This was negligence. Mr. Barnes, quite properly, accepted criticism from me that one particular sentence was objectionable and required amendment. This related to (Record page 9 lines 21-23) where the pursuer suggests that blaming the pursuer and her parents for the bullying was a "tactic" deployed by the school. This inferred a deliberate potentially hostile act to which the pursuer did not adhere. I allowed that sentence to be amended at the Bar. Mr Barnes did not demur from the reference by counsel for the defender to the fact that the pursuer's case more closely resembled a health and safety defective premises or systems of work action. A school was a place where hazards existed and the defenders had duties arising from that fact. Mr Barnes acknowledged the high authority of cases such as Phelps but pointed out that they were far from straightforward and were in some parts contradictory. Indeed in Phelps their Lordships concurred with the observations of Lord Browne-Wilkinson quoting from X v Bedfordshire at 766,

"In my judgment a school which accepts a pupil assumes responsibility not only for his physical wellbeing but also for his educational needs. The education of the pupil is the very purpose for which the child goes to the school. The headteacher, being responsible for the school, himself comes under a duty to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the attention of the headmaster that a pupil is underperforming, he does owe a duty to take such steps as a reasonable teacher would consider appropriate to try and deal with such under-performance .... If a headteacher gives advice to the parents, then in my judgment he must exercise the skills and care of a reasonable teacher in giving such advice. The scope of a school's duty of care towards its pupils was summed up thus by Auld LJ in Gower v London Borough of Bromley [1999] ELR 356, at 359:

"(1) A headteacher and teachers have a duty to take such care of pupils in their charge as a careful parent would have in like circumstances, including a duty to take positive steps to protect their well-being ...

(2) A headteacher and teachers have a duty to exercise the reasonable skills of their calling in teaching and otherwise responding to the educational needs of their pupils. ...

(4) The duty is to exercise the skill and care of a reasonable headteacher and/or teachers, applying the Bolam test, namely, whether the teaching and other provision for a pupil's educational needs accords with that which might have been acceptable at the time by reasonable members of the teaching profession ..."

Mr Barnes also drew my attention to one of the other cases relied upon by the Defenders, Bradford Smart where Lord Justice Judge states (at para 38):

"There is no magic in the term bullying. Any school has to have sensible disciplinary policies and procedures if it is to function properly as a school at all. It will no doubt take reasonable steps to prevent or deal with one-off acts of aggression between pupils and also recognise that persistent targeting of one pupil by others can cause lasting damage to the victim. In seeking to combat this it is always helpful to have working definitions such as those contained in the documentation we have seen. The problem is now well enough recognised for it to be reasonable to expect all schools to have policies and practices in place to meet it; indeed, this school developed just such a policy in 'Working Together'. We agree that such policies are of little value unless they are also put into practice. But in order to hold the school liable towards a particular pupil, the question is always whether the school was in breach of its duty of care towards that pupil and whether that breach caused the particular harm which was suffered."

Counsel stressed the importance of the courts approval of the concept that sensible policies and procedures must be put into practice. This was central to the pursuer's case. The defenders admit that they owed duties to the pursuer but aver that they met them. They do so by reference to the policies and procedures they say were in place. The pursuer challenges those averments. She says there was no open discussion on bullying. Strategies adopted by the defenders patently failed and yet the defenders did not seek to formulate anything new in response. Indeed some of the strategies were so flawed that they exposed the pursuer to even greater risk of harm. She offers to prove that this was negligence. Mr Barnes directed me to the test of the "careful parent". He argued that against the background of the long and sustained campaign of vilification against the pursuer, which she offered to prove, a careful parent would have sought to obtain additional support from an educational psychologist and it was negligent of the defenders not to do so. These were all matters which could only be tested at proof.

26. Mr Barnes submitted that the correct test of delictual liability to be applied to the pursuer's case was notably the well-known tripartite test discussed in such cases as Caparo Industries Plc v Dickman 1990 2 AC 605 and Gibson v Orr 1999 SC 420. The three essential ingredients for a claim in negligence were (i) foreseeability; (ii) proximity; and (iii) the court being satisfied that, in all the circumstances, the imposition of liability on a defender would be fair, just and reasonable. In the present case, the pupil/school relationship satisfied the requirement for proximity, and on the pursuer's averments the other two requirements were also amply met. In particular, the defenders not only should have foreseen, but actually did foresee, the risk that if pupils suffered serious trauma because of bullying this might well trigger problems with their mental health and educational development. This is why the defenders aver in some detail the policies they allege they had in place and duly implemented.

27. He also submitted that the pursuer's averments describing attacks upon her outside school were not irrelevant. He accepted that the school could not take direct action but the adverse actions of children outside school should have informed the decision making process of the staff at Auchmuty. The pursuer was clearly a special target of abuse. To exclude these averments was to lose pieces of the overall puzzle and obscure the final picture.

28. The case law which applied to failure to properly diagnose or appropriately respond to dyslexia (such as Phelps and Bradford Smart) should apply with equal force to bullying. To attempt to slice the case down into specific acts arising out of each alleged act of bullying was unfair. It was more a dynamic matter looking at the overall situation of the pursuer and the systemic response to it by the defenders and their staff. He accepted that he had no averments of psychiatric illness but submitted that that should not be fatal to the pursuer's case. Firstly, there were ample averments of physical assault and injury from which psychological trauma could follow. The defenders themselves had submitted reports to other agencies referring to the pursuer as the victim of "chronic" bullying. The defenders may say they have an explanation for this but these were all matters for proof. Secondly, he relied upon certain observations of Lord Clyde in Phelps who had this to say about damages (at page 670 C):

"...... while the injury which is alleged to have occurred is principally a loss or at least a retardation of their educational progress with such consequential loss and expense that that might entail, it might also involve some form of mental or psychological injury. The loss claimed may be purely of an economic character. But the mental or psychological effects of negligent advice may in themselves be able to constitute a proper head of damages, such as a post-traumatic stress disorder or a psychological illness. Dyslexia is a condition which may in itself become worse through the absence of an appropriate educational regime, and the frustration of an inappropriate regime may cause psychological stress or injury. The consequences of negligent advice regarding the future treatment of a child with some special educational need may take a variety of forms and may be extensive."

Mr Barnes submitted that these comments applied with equal force to a case of chronic bullying. He invited me to repel the defenders plea seeking dismissal either allow a proof before answer or fix another hearing to consider further submissions on exclusion of certain averments from probation.

Discussion

29. Without implying any disrespect for the full and careful arguments which were presented on both sides of the Bar, I consider that this matter can be disposed of quite shortly. The only issue for determination is whether, applying the well-known test in Jamieson, the pursuer's averments may be held relevant to go to inquiry. Can it confidently be said that, even on proof of all of these averments, the claim must still necessarily fail? In my judgment that question must be answered in the negative.

It appears to me that the approach advocated by Mr Marney over-simplifies the issues involved in this case. In the first place, to look at each individual incident in isolation and ask what were its foreseeable and actual consequences appears to me to be inappropriate in a case where the pursuer's averments are of a sustained campaign of harassment by fellow pupils having a cumulatively harmful effect and a systemic failure by the defenders, who claim to have effective and extensive policies and strategies in place to address, chronic bullying. Secondly, reference to standard policies and strategies may not be appropriate where, to the alleged knowledge of the defenders the pursuer was being placed under severe stress by matters that individually might have shrugged off, but were collectively intolerable. In general, no doubt, what is reasonably foreseeable will be assessed by the standards of what, in the famous nervous shock case of the pregnant Newhaven fishwife Bourhill v oung, Lord Porter described as "the ordinary frequenter of the streets"; and accordingly in the absence of special knowledge, a defender "is not to be considered negligent towards one who does not possess the customary phlegm" (1942 S.C.(H.L.). The position may be different, however, where the defender is aware of the pursuer's alleged history of a sustained campaign and standard strategies were failing. It seems to me to be clear from the authorities to which I was referred by counsel that if, as a matter of principle, damages can be awarded for the consequences for a failure to take appropriate steps to ameliorate dyslexia, including frustration, loss of self confidence and loss of self esteem (as identified by Garland J, and implicitly accepted by Lord Slynn in Phelps) then that is capable of being applied to the established scourge of bullying. Lord McLean in Scott v Lothian Regional Council said:

"Bullying, especially in the school environment, is hateful and it is insidious. The evidence that I heard, especially from Mr Powell-Tatum, demonstrated clearly that it is a phenomenon which is now far better understood in schools than it was. But it has existed for a long time...... it is a constant besetting problem."

The pursuer describes a number of highly distressing incidents in some detail. She is sketchy in parts but I accept Mr Barnes' submission that, although he may fail to make out his case against specific teachers (notably the head teacher of Markinch) overall the pursuer's case sets out a history of her experience of the education system for which the defenders were responsible to help inform the more specific acts of negligence she offers to prove.

30. I accept that the correct test is that set out in Caparo. Counsel were agreed that there was proximity. Furthermore, the "fair, just and reasonable" requirement may be difficult but not impossible to satisfy where (as here) the complaint is that, following trauma at school the defenders or their employees failed to properly implement highly detailed and elaborate policies of discipline, counselling and support system which they claim were already in place. In my opinion, however, these are essentially matters of fact and degree which cannot finally be resolved until after proof. Equally, in my judgment the averments of foreseeability and fault in this case are specific enough for their purpose. More accurately, perhaps, I am unable to accept that as a matter of relevancy they are not. Accordingly, I regard each of the factors in isolation as collectively material. The number and extent of the incidents of physical abuse of which the defenders admit they were aware; the fact that, for whatever reason, teachers expressed a professional opinion that the pursuer suffered from "chronic bullying"; the behavioural signs coming from her. My opinion is strengthened when I consider the factors together. It follows that I do not uphold the challenge on this branch of the case. In my view, it is not possible to state that her claim will necessarily fail at proof. All the matters raised by both parties can properly be tested in evidence at a proof before answer. In the light of that decision, I do not require to decide whether a distinction falls to be drawn between physical and psychiatric injury in this context at this stage.

31. I was equally not persuaded by the defenders' "scatter gun" or floodgates arguments. The distinction which I take from the very high authority referred to by counsel on both sides of the Bar between a failure to educate claim and negligence seems clear enough. The Court should not open the doors to criticism that schools and teachers failed a child because they did not achieve the academic results that the child or its parents think they should. The parents of a child who does not take well to Latin cannot hope to blame the school because they teach the subject in a modern way and abjure the Socratic method of my generation of schoolmasters. The pursuer does allege lack of educational attainment but only as one of a series of consequences she says she suffered as a result of the alleged failures of the defenders to provide her with a safe school environment in which she could have the same chance to thrive as any other pupil. She offers to prove, and I accept this as valid for the purposes of the test of relevancy, that the analogy with health and safety issues is more apt than to categorise her case as educational. She says that the defenders, through their fault and that of the teaching staff for whom they are liable, failed to provide a safe environment and care properly for her physical and mental well being as established by the decisions in X v Bedfordshire and Phelps and that this caused her harm, loss and damage She has the right, in my view, to test that proposition at proof. I have no doubt that the pursuer may certainly have considerable difficulty succeeding at proof and, no doubt, the defenders will have to prepare across a broad front but that does not justify dismissing an action as irrelevant. The pursuer is still bound by the Rules of Court. She will require to lodge her list of witnesses and disclose documents she intends to found upon. The defenders will, doubtless, make proper use of the rules anent agreement of evidence, notices to admit and so on to ensure proper case management in proof preparation.

32. I was invited by counsel to reserve further procedure until a further hearing and accordingly I shall pronounce only a limited interlocutor at this stage pending that hearing.