OUTER HOUSE, COURT OF SESSION [2008] CSOH 113
PD910/08	OPINION OF LADY CLARK OF CALTON in the cause MICHAEL CUNNINGHAM Pursuer; against GLASGOW CITY COUNCIL Defenders: ________________

Pursuer: Milligan; Maclay Murray & Spens LLP

Defenders: Hofford; Glasgow City Council, Solicitors

8 August 2008

The motion
[1] This case came before me on the motion roll by way of a motion on behalf of the defenders to remit the cause from Chapter 43 procedure and to allow the action to proceed as an ordinary action in respect that there are exceptional reasons justifying withdrawal of the cause from Chapter 43.

The Pleadings
[2] The pursuer is a principal teacher at a school in Glasgow. In this action he sues Glasgow City Council as his employer. He avers in paragraph 15 that he suffered loss, injury and damage caused by the defenders' failure to take reasonable care for his health and safety and secondly, breaches by named employees of Section 8 of the Protection from Harassment Act 1997 for which the defenders are vicariously liable. Detailed averments are set out by the pursuer alleging events dating back to 1998, the consequence of which, it is averred, that the pursuer has developed a generalised anxiety disorder. It is alleged that the pursuer's depression related to "an ongoing and outstanding grievance, which has been going for a number of years. His stress and depression would seem to be entirely related to his work circumstances of apparently some 8 years duration." The defenders have skeleton defences.

Submissions on behalf of the defenders
[3] The submissions on behalf of the defenders fell into two parts. The primary submission of counsel for the defenders was, that the action is not properly to be regarded as a personal injuries action falling under Chapter 43 procedure. In support of his primary submission, counsel referred to Section 8(b) of the Protection from Harassment Act 1997 (hereinafter referred to as the 1997 Act), which provides that:

"The damages which may be awarded in an action of harassment include damages for any anxiety caused by harassment and any financial loss resulting from it."

Counsel submitted that it was plain from the 1997 Act that the legislation was designed to deal with a particular type of conduct and provide remedies in respect thereof. The legislation provides a remedy for anxiety caused by harassment. That falls short of a recognised identifiable psychiatric illness and would not, in principle, sound in damages under the normal rules of delict. Counsel submitted that it is plain from the way in which Chapter 43 makes special provision for harassment actions, for example, in Chapter 43A, that the 1997 Act does not sit comfortably with the type of procedure designed for personal injuries in Chapter 43 procedure. He submitted that there is "a difference in the nature of the beast" between the statutory delict created by the 1997 Act and personal injuries actions for which Chapter 43 procedure was designed. Counsel prayed in aid the special provisions about prescription inserted at Section 18B of the Prescription and Limitation (Scotland) Act 1973 (hereinafter referred to as the 1973 Act) which relate to actions of harassment within the meaning of Section 8 of the 1997 Act. He pointed out that Section 17 of the 1973 Act which applies to personal injuries, not resulting in death, does not cover actions of harassment for which special provision is made in Section 18B. He referred to the Court of Session Act 1988, Section 11, which makes provision for jury trial in relation to enumerated causes including an action of damages for personal injuries. He pointed out that no equivalent provision had been made as had been done in the 1973 Act. He also prayed in aid the practice note No. 2 of 2003 relating to personal injuries actions, in particular Rule 43.1 which provides:

"It is not intended that actions of defamation or any actions which are not, in ordinary parlance, concerned with personal injuries should be covered by these Rules. Any such actions are likely to be transferred to the ordinary roll if they are raised under Chapter 43."

He submitted that, "in ordinary parlance", actions of harassment would not be regarded as personal injuries actions.

[4] Counsel for the defenders invited me to adopt the approach of Lord Cameron in Tudhope v Finlay Park, t/a Park Hutchison, Solicitors 2004 S.L.T. 783. He submitted that the Chapter 43 procedure is not intended to embrace every action which could possibly be described in general terms as a personal injuries action. Counsel also relied on G v S 2006 S.L.T. 795, in which Lord Turnbull agreed with the analysis undertaken by Lord Cameron in Tudhope. Lord Turnbull accepted at 798J, that there is a distinction to be made between actions which in a broad sense may be described as actions of damages for personal injuries and those which fall within the narrow definition of "personal injuries" to be found in Rule of Court 43.1(2). Counsel accepted that the claim in G v S was limited to anxiety which fell short of a psychiatric condition. Nevertheless he submitted that, the Lord Ordinary was expressing a general opinion in paragraph 19 that, in ordinary parlance, it cannot be said that an action of harassment is one concerned with personal injuries. In summary, counsel submitted that Chapter 43 procedure applies to "personal injuries" in a narrow sense. An action under the 1997 Act is not a personal injuries action in that narrow sense.

[5] Counsel for the defenders submitted that, in any event, the action should be withdrawn from Chapter 43 procedure in terms of Rule of Court 43(5)(3). He pointed out that the test for withdrawal is "exceptional reasons". He submitted that it is likely that lengthy written pleadings will be necessary. Issues of both liability and causation are complex. The claim relates to an extensive period of alleged harassment at work and detailed investigation over many years will need to be carried out. Given the historic nature of the investigations, this is likely to be difficult. Detailed medical expertise about the non-physical injuries will be required by both parties.

Submissions by Counsel for the Pursuer
[6] Counsel for the pursuer submitted that the defenders' submissions disclosed a fundamental misapprehension of what is meant by personal injuries actions. He submitted that G v S, was a case involving a claim for anxiety only. At common law such an action would not be regarded as a personal injuries action, because anxiety falling short of a recognised psychological or psychiatric disorder would not sound in damages. In support of this proposition, counsel referred to Angela Rorrison v West Lothian Council 2000 S.C.L.R. 245 where it was held that, in an action based on negligence, the pursuer could recover damages only if she sustained psychiatric injury in the form of a recognised psychiatric illness. The reference to a "nervous breakdown" in the pleadings is that case did not give fair notice of an intention to lead evidence that the pursuer suffered from a recognised psychiatric illness and an action based on negligence could not succeed. Counsel submitted that it was well settled law that it was only in circumstances where the pursuer was liable to suffer stress, anxiety or other consequences to such a pathological degree as to constitute a psychiatric disorder that a duty of care could arise.

[7] Counsel referred to the pleadings in the present case. In paragraph 14.1, it is averred that the pursuer developed a generalised anxiety disorder (DSMIV) of at least moderate severity. It is averred that as a result, the pursuer required anti-depressant medication. Counsel submitted that this case was not pled as a case of injury resulting in mere anxiety. He pointed out that the pursuer's claim against the defenders includes a claim that the pursuer's loss, injury and damage were caused firstly, by the defenders failure to take reasonable care for the health and safety of their employees and secondly, by breaches by named individuals of Section 8 of the 1997 Act for which the defenders are vicariously liable. Both claims are made against the detailed factual background narrated in the pleadings. Counsel prayed in aid the decision of Lord Emslie in Robertson v The Scottish Ministers (2007) C.S.O.H. 186. This was an action in which an employee sought to have her employers held vicariously liable for the intentional harmful conduct of fellow employees who allegedly bullied and harassed her. There was also a claim under Section 8 of the 1997 Act founding on essentially the same conduct. I was referred to the approach adopted by Lord Emslie in paragraph 27 in relation to the claim under the 1997 Act and his decision to allow a proof before answer.

[8] In summary, counsel for the pursuer submitted that there are no exceptional reasons to justify the withdrawal of the case from Chapter 43 procedure. He submitted that the action is properly to be regarded as a personal injuries action in terms of Rule 43.1. In relation to the secondary submission of the defenders about complexity, counsel submitted that although the incidents covered a lengthy period, full specification had been given. The defenders were well aware of the complaints which had been investigated. The case was not particularly complex as it involved allegations in respect of named employees. The defenders had had many months to investigate the matters since the claim was formally intimated in September 2006.

Discussion
[9] There was no dispute in the case that the general principle referred to by counsel for the pursuer in Angela Rorrison v West Lothian Council was correct. Counsel for the defenders did not take any issue with the pleadings and accepted, for present purposes, that the pleadings made reference to an injury which was not mere anxiety but was some form of recognised psychiatric illness in the Rorrison sense.

[10] I consider that the short answer to this motion is that exceptional circumstances exist. I find these exceptional circumstances in the nature of the allegations which are many and varied and date from 1998 over a period of at least 8 years duration and on one view of the pleadings, still ongoing. There is a bald averment in paragraph 14 at page 8 of the statement of claim that "as a result of the acts and omissions of the defenders and their employees, the pursuer has suffered, loss, injury and damage." The pleadings make detailed averments about various individuals and there are averments of breaches of the 1997 Act by the named individuals for which the defenders are averred to be vicariously liable (paragraph 15). The pleadings also make complaint about alleged failures by the defenders themselves, to take reasonable care for the health and safety of their employees. It is unclear where the boundaries and foundations of what might be some negligent breach of duty by the defenders themselves as distinct from alleged harassment by fellow employees are meant to be in this case. It seems plain that there are also potentially complicated issues about the pursuer's health over a long period, including causation. There are complicating features in relation to causation as there are averments that the pursuer underwent heart surgery and was off work as a result. I note that it is also averred in paragraph 14.1 that the pursuer is vulnerable to heart disease if his work conditions do not improve. There are further averments about loss of employability and necessary services, all of which in my opinion may be unusually complicated because of the nature and timespan of the allegations. I consider that the nature of the discussion in Robertson which appears to be an ordinary action, not dealt with in Chapter 43 procedure, illustrates some of the difficulties which may arise and the utility of focussed detailed pleadings in some cases alleging harassment.

[11] I consider that the issues in the present case are such that full pleadings are not only desirable but probably essential to focus the issues properly. That is likely in my opinion, to result in a more focused approach to the case which is likely to save court time and expense ultimately that may be to the benefit of both parties.

[12] In view of my approach to the case, It may not be necessary to come to a concluded view about whether or not this action could, in its present form, be regarded as a personal injuries action falling under Chapter 43 procedure. I accept however that is the prior question. I consider that none of the points made by counsel in relation to the legislative provisions provide a definitive answer one way or the other. In fairness, to counsel I did not understand them to submit that it did. I find Practice Note No. 2 of 2003 and Rule 43.1 singularly unhelpful. "Ordinary parlance" is not, in my opinion, a helpful definition for this purpose. I consider that the views expressed by Lord Turnbull in G v S are obiter. The opinion was given in the context of a case in which it was averred "that the pursuers developed symptoms of anxiety and stress, ..." and the pursuer's counsel in that case did not suggest "that he could aver that the pursuer suffered from psychiatric injury in the form of a recognised psychiatric illness" (paragraph 16). I consider it significant, however, that Lord Turnbull concludes in paragraph 19 that "in ordinary parlance it cannot be said that an action of harassment is one concerned with personal injuries". I do not consider that there is any compelling reason to disagree and there is plainly merit in a consistency of approach.

Decision
[13] For the reasons explained, I grant the motion of the defenders to withdraw the case from the Chapter 43 procedure and allow the case to proceed as an ordinary action.