in the cause







Pursuers: O'Brien, Q.C., Poole; Balfour & Manson (for Bonnar & Co., Airdrie)

Defenders: Jones, Q.C., Gilmore; Simpson & Marwick, W.S.

5 December 2000


[1]The late James Cross died at his own hand on 15 August 1993. At the time of his death he was employed by Highlands and Islands Enterprise ("HIE") and seconded to Western Isles Local Enterprise Company ("WIE"). In this action members of his family sue those two bodies, called as first and second defenders respectively, for damages on averments that his suicide was caused by stress to which he was subjected at work, and that in subjecting him to such stress the first defenders were negligent at common law and both defenders were in breach of statutory duty. His widow, Mrs Marie Flora Cross ("Mrs Cross"), sues first as an individual, and secondly and thirdly as guardian of her two daughters, Rona and Joanne, the children of the marriage. The fourth pursuer is James Cross's father. The parties were, in the end, agreed as to the sums of damages which should be awarded in the event of liability being established. Liability was, however, disputed and there remain a number of complicated and difficult issues of fact and law which require to be resolved.

[2]James Cross was born on 9 May 1954, and was thus thirty nine years of age when he died. He was the eldest of three sons of the fourth pursuer, Francis Cross, who was sixty five years of age at the date of the proof. He was brought up in Glasgow. His mother died on 10 February 1993, and I shall have occasion to refer further to that in due course. On 25 September 1981, he married Mrs Cross, who is from South Uist and is a nurse and midwife by profession. There are, as I have mentioned, two children of the marriage, Rona, who was born on 28 November 1983, and Joanne, who was born on 10 August 1985. In August 1993 James Cross was living in family with Mrs Cross and the two children on a croft in South Uist. On 15 August 1993 he committed suicide by placing the muzzle of his shotgun in his mouth and discharging it.

James Cross's Employment History

[3]James Cross left school with five O Levels, and immediately entered the Civil Service. He worked in the Department of Employment. Initially, as a clerical officer from 1971 to 1975 and an executive officer from 1975 to 1978, his duties related to the administration of the unemployment benefit scheme. In March 1978 he transferred to the Manpower Services Commission, Training Division, and worked in the Highlands and Islands Area Office in Inverness. The focus of his work became the various government schemes for employment training. At that stage his work took him on occasions to the Western Isles. It was during this phase of his career that he met and married Mrs Cross. In 1984 he became a specialist officer, handling higher level training courses and those for people with disabilities, as well as marketing and the development of effective systems for budgetary control, planning and performance measurement. In March 1986 he was promoted to the rank of higher executive officer, and appointed to the Central and Fife Area Office of the Training Agency in Edinburgh. The family moved to Edinburgh, and lived there until 1990. During his first fifteen months in Edinburgh, he was Area Marketing Manager, with responsibility for promotion of training activities. He also managed and controlled executive officers involved in planning and budgetary control, and providing secretariat services to the Area Manpower Board. In July 1987 he became Youth Training Scheme Local Programme Manager, responsible for the management of staff involved in the planning and control of YTS provision in the area. He was also responsible for the negotiation of contracts with training providers, and marketing and promotion of schemes. In July 1989 he became Employment Training Manager. In 1989-90 he studied for and obtained the Certificate in Marketing of the Chartered Institute of Marketing.

[4]Under the Enterprise and New Towns (Scotland) Act 1990 HIE was set up, and there were transferred to it with effect from 1 April 1991 the functions previously performed by the Highlands and Islands Development Board ("HIDB"), as well as the functions (within its area) of the Training Agency relating to the provision and administration of government-funded employment training schemes. There were also set up ten local enterprise companies ("LECs"), of which WIE was one, to which some of the functions of HIE were delegated. For the purpose of the development phase of those new arrangements, James Cross was seconded, at his own request, from the Training Agency to WIE with effect from 18 June 1990. During that period, the Working Group whose members were to become in due course the Board of WIE were involved in developing a business plan for WIE. Donald MacAulay, who had been on the staff of HIDB in Stornoway and was to become the Chief Executive of WIE, was at that stage the Project Manager, and James Cross was appointed to work with him (based during this period in Stornoway). Independent consultants were also involved in the development of the business plan. What bears to be a summary version of that business plan is produced as No. 30/114 of process. At the end of the development phase Mr MacAulay reported to the Training Agency on James Cross's participation in the project in favourable terms (No. 24/1/42 of process), which he confirmed in evidence accurately stated his views.

[5]Towards the end of the development phase James Cross applied for employment with HIE, and was offered a position with effect from 1 April 1991. On taking up that appointment he ceased to be a civil servant. The particular position which he sought and to which he was appointed, by way of secondment from HIE, was as Senior Training Manager of WIE. The job description for that post (No. 24/1/4 of process) contained the following passages:

"Location Of Job: Either Stornoway or Balivanich.

General Purpose Of Job: The Job Holder will play a central role in ensuring the success of the Company. He/She will form part of a Management Team with responsibility for contracting, delivery, monitoring and assessment of training programmes for the Company and its contractors. Reporting to the Chief Executive, the Job Holder will promote the training function within the Company, ensuring that an integrated approach is projected by staff in the field and ensuring adequate links with colleagues at all levels.

The Job Holder will ensure that policies are continually evaluated to ensure compatibility of effort between WIE policies and available training programmes, recommending, where necessary, policy changes.

Context: ...

The Job Holder will assume responsibility for training programmes throughout the Western Isles. The Job Holder will manage the process of negotiation with contractors, delivery and assessment in accordance with contracts agreed. The Job Holder will attract a high profile and be able to deal confidently with businesses of all sizes, and other local organisations, both public and voluntary sector.

Ability to speak Gaelic would be an advantage.

Main Duties: Negotiation with subcontractors to ensure efficient delivery of WIE training programmes.

Monitor performance of subcontractors and assess effectiveness of delivery methods.

Ensure WIE policies are implemented to optimise effect on the local economy and recommend policy changes, as appropriate.

[Reference is then made to staff liaison and monitoring staff performance.]

Ensure that investment in training by WIE adequately reflects the requirements of the economy of the area, and that adequate flexibilities are sought totally in implementation of national schemes.

Ensure an optimum provision of training locally to meet local needs, and, where necessary, seek reciprocal arrangements with other LEC areas.

General Conditions of Employment: ... Office hours are currently 0900 - 1730 (1700 on Friday) on a five day week. Additional hours may be required ... Considerable travelling by public and private transport will be required."

James Cross had by then learned to speak Gaelic. The eventual location of the job at Balivanich on Benbecula (the main office of WIE being in Stornoway) was in accordance with his preference.

[6]Another view of the demands of the job of Senior Training Manager is to be found in the Job Analysis Form (No. 9/4 of process). That document was completed and signed by James Cross, and counter-signed by Donald MacAulay. It is not dated, but the evidence of Donald MacAulay was that it was completed in the course of 1991. Its purpose, he said, was to ensure that each post was appropriately valued and graded. It would go, once completed, to HIE for evaluation. It contains the following passages:

"Overall Purpose of the Job:

Interpretation of Government guidelines on training policy and provision of reports to the WIE Board on how the policies impact locally.

Development of WIE training policies and initiatives and implementation in line with Board recommendations.

Managing WIE's total training resources and budgets (in excess of £1 million) effectively.

Planning, budgeting and monitoring of expenditure to the Chief Executive and the Board.

Recommendation to the Chief Executive and Board, company involvement with innovative training solutions.

Management of staff to ensure effective financial, health and safety and quality controls of training delivery.

Representing the Company at senior level in training policy issues.

Main Duties:

  • To advise, consult and where necessary direct the WIE Board with regard to the interpretation and implementation of EEC and National Government policies and budgets as they affect training delivery in the area.
  • Development of new policies and schemes for presentation to the Chief Executive and the WIE Board which ensure the most effective use of budgetary resources and which capitalise on additional sources of finance that may be available to us.
  • Direct and negotiate training provision locally to ensure that sufficient training places are available to meet the demands from young people and adults included in the government guarantee and [illegible] groups. This provision to ensure S.O.C. groups are covered in accordance with local demands and WIE Board policy and that training is delivered to a quality standard achieving vocational qualifications and jobs wherever possible.
  • Direct and negotiate a variety of training provision which is aimed at helping new businesses become established and which provides relevant training for existing businesses in a cost effective, locally delivered, manner.
  • Monitoring of training budgets and expenditure against profiles reporting to the Chief Executive and WIE Board at regular intervals.
  • Development of links between Education and Business in the Western Isles representing the WIE position on the Education/Business partnership and in TVEI developments.
  • Management of subordinate staff including advising, encouraging, guiding and giving direction and support as required to enable effective performance of duties. Setting of performance objectives and review and updating of progress. Making sure that staff competence and training is available to enable effective performance of duties.
  • Representing WIE at local and national levels and speaking on behalf of the Company regarding training and general matters at public meetings, in the media."

There then follow a number of pro forma matrices dealing with various skills and demands of the job in which multi-choice questions are answered. Only some of these were specifically mentioned in evidence and need be mentioned here. Under the general heading "Judgement and Analytical Skills", there is a question "What would be the most common repercussions of poor judgement of the Jobholder?" The answer that James Cross ticked was "Adverse effect on local economic climate", and the example given is "Failure of relevant locally skilled workers and businesses to get jobs/continue trading". Under the heading "Professional Skills" the question is asked "Please state the level of formal qualifications generally recognised as being appropriate for the post. N.B. This is not necessarily what qualifications an individual may hold." The answer that James Cross ticked was "Degree (non-vocational)". Miss O'Brien on behalf of the pursuers sought to make something of that answer, but Donald MacAulay was asked what effect James Cross's lack of a degree had on his ability to do the job, and he answered, "None, given his experience with the Training Agency".

James Cross's Pre-morbid Personality

[7]It is convenient to take note at this stage of the evidence about James Cross's personality before he was affected by the depression which began to affect him at some stage between late 1992 and the spring of 1993. There was no real conflict in the evidence. The picture which emerges from the evidence of members of his family (Mrs Cross, his brother Brian and his brother-in-law Roderick McDonald), friends (Mike Donaldson and Martin Matheson) and work colleagues (Sandra McInnes, Donald McDonald, Isabel McDonald and Donald MacAulay) is a consistent one. He was an affectionate husband and father, who involved himself with his children and their activities. Living in the Western Isles had been a long term aim; he enjoyed the outdoor aspects of living on a croft; he had learned to speak Gaelic. He was generally calm, confident, and self-assured, although quiet. His health was good. He took enthusiastically to hill walking, when introduced to it by Mike Donaldson. He ran half marathons, and regularly trained for doing so with Martin Matheson. He had other leisure interests including wood-working and photography. He took care with his appearance. Although according to Mrs Cross he did not talk about his work, he was happy in it. He was ambitious, and had made steady progress throughout his career. At work he was enthusiastic, conscientious, committed, competent and hard-working. He related well to people, and was generally well-liked. I am satisfied that that picture of James Cross is not the result of reluctance on the part of witnesses to speak ill of the dead, but is a genuine and accurate assessment of his personality.

The Development of James Cross's Depression

[8]It was not disputed that for some time before his death James Cross suffered from depression. What was less clear was when it began to develop, and what caused it to develop. It is convenient to leave aside for the present the question of causation, and simply record the evidence of changes in James Cross that may relate to the development of his depression.

[9]The earliest reference to something amiss in James Cross's behaviour came in the evidence of his friend, Mike Donaldson. They had been colleagues in the civil service in Edinburgh, and their careers had then followed broadly similar paths, since Mike Donaldson also transferred to an LEC (Fife Enterprise) in 1990. They kept in touch thereafter by telephone, and went on hill-walking expeditions together. It was on one such expedition, to Skye in December 1992, that Mike Donaldson first thought that something was wrong with James Cross. He said that he was "like a different person"; "there was obviously something not right"; he was thinner, gaunt and white faced; he looked as if he was worried. James Cross did not initially say what was wrong, but on the second or third day of the trip produced some papers, and refused to go out to the pub, saying that he had a Board paper to write. He mentioned that the paper had been "back and forward several times to Stornoway". Eventually he gave in to persuasion, said "Sod it, I'm on holiday", and agreed to go out, seeming to "lighten up a bit". From James Cross's diary (No. 30/96 of process) it can be seen that the trip to Skye took place between Saturday 5 and Tuesday 8 December, and that the next WIE Board meeting thereafter was on Tuesday 15 December. From the minutes of that meeting (No. 25/5 of process) it can be seen that on that occasion James Cross presented two papers to the Board, one providing routine management information about training contracts (item, and the other under the heading "Training Contracts Paper" (item 11.92.11). It seems reasonable to infer that it was probably the draft of the latter of these (which Donald MacAulay described as a "discussion paper asking the Board to give directions in principle to staff in preparation for the next round of training contract negotiations") that he took with him to Skye.

[10]James Cross's mother died on 10 February 1993. According to the evidence of Brian Cross, she had suffered from multiple sclerosis for over twenty years, and was latterly very severely disabled, and bedridden. Her quality of life had deteriorated greatly. Mrs Cross explained that her mother-in-law's death was not unexpected. James Cross took leave and travelled to Glasgow to see his mother on 7 February. She died on 10 February. He received the news by telephone from his brother while in his office. Sandra McInnes said that when he received the news, he was very upset and wept, and went home early. He attended the funeral, which took place on 13 February. Mrs Cross said that he was upset, but not unduly upset by his mother's death. Brian Cross said that he believed that James shared his view that their mother's death, while sad, was a merciful release for her. It seemed to me that there was nothing in the evidence about James Cross's reaction to his mother's death to suggest that it affected him to more than the ordinary, natural degree.

[11]Some deterioration in his condition was observed by those around him in the period between his mother's death and the end of April. When he was in Glasgow for the funeral, he and his brother Brain had the opportunity to talk, and Brian was shocked when James told him "I've just had the worst Board meeting ever in my life". He spoke of having reports "severely savaged" by members of the Board, which he thought unfair, because they had been ratified in advance by Donald MacAulay. (The minutes of the Board meeting of 8 February (No. 25/6 of process) do not record anything of that sort, but they are expressed in very neutral terms, and may understate the level of critical comment made by Board members.) On his return to the Western Isles he was suffering from a bout of flu, and was off work for a week. At some stage in March, Mrs Cross said, he said to her "This job is terrible". It was the first time he had ever complained about his job to her. He said that he was "up to his neck in work". She told him to speak to Donald MacAulay, and she understood that he did so. She understood that he asked to be downgraded because the job was too much for him (although I am not entirely clear that she meant that that point was discussed in April - Donald Macaulay did not mention its having been raised at that stage). In middle to late April, the family visited friends in Edinburgh. Mike Donaldson met him there. He said in evidence that he was shocked by James's appearance, which was worse than it had been in Skye. He had with him scribbled notes for a paper which he was unable to write. He spoke of his continuing difficulty with writing reports. He mentioned lack of support from the Chief Executive at Board Meetings. Although Mrs Cross accepted that that visit to Edinburgh had been a cheerful family occasion, she felt that James was putting on a show of cheerfulness for her. On 25 April (a Sunday) he went in to work, but when he came home said that he had just moved papers from one file to another and had been unable to concentrate. Asked about his appearance at this stage, Mrs Cross said that looking back, he was very haggard. She did not notice weight loss at the time, because he usually lost weight in the spring when he resumed running training. She understood that he was having difficulty sleeping, although he did not disturb her. More general evidence that James Cross was not his usual self during the period before he went off work was also given by Sandra McInnes (more withdrawn than usual), Roderick McDonald (lost weight, paler, more withdrawn, once mentioned that work seemed to be getting on top of him) and Isobel McDonald (quieter).

[12] According to Donald MacAulay, the first he was aware of James Cross having difficulty with his work was on the Monday of the third week in April 1993, although prior to that he had noticed that he was quieter and withdrawn for a period following his mother's death. On that Monday, they were both at a meeting on Skye, and James Cross took the opportunity of speaking to Donald MacAulay to tell him that he was having problems with his workload. He said that he felt isolated from the main office, and was having difficulty in prioritising his workload. It was agreed that they would meet again on the Thursday, when they would both be in Stornoway. Donald MacAulay said in evidence that he had not at that stage noticed any deterioration in James Cross's work. They did meet on the Thursday, when the annual appraisal procedure for the year was completed. The only documentary material available in relation to that meeting is Donald Macaulay's "Appraising Manager's Pre-Discussion Document" (No, 24/1 of process, page 88), which I understand to have been of the nature of a preparatory aide memoire, rather than an expression of concluded views. On the Friday, Donald MacAulay suggested that James Cross see his doctor. He felt that there was more to the problem than difficulties with work, since the workload had not, he said, changed.

[13]On Monday 26 April James Cross went to see his general medical practitioner, Dr Powell. Mrs Cross went with him. Dr Powell is now deceased, but her records are available (Nos. 9/1 and 23/1 of process), and her evidence is available in the form of an affidavit which she swore on 11 December 1998 (No. 35/30 of process). The consultation was lengthy (on Mrs Cross's account it lasted almost an hour). The complaints which James Cross made were noted by Dr Powell as including feelings of inability to cope with his job, anxiety about the future, difficulty in concentrating and sleep disturbance. He attributed his anxiety to work-related problems, and mentioned having too great a workload, lack of assistance in the Southern Isles, and inadequate availability of secretarial help. The problem was said to be aggravated by the fact that his boss was oblivious of the difficulties. The amount of work to be done and the targets to be achieved were expanding, but simultaneously the budget was contracting. Dr Powell noted that he could not envisage any future improvement in the situation. A secondary problem was identified as being that they had committed themselves to building a new house in Lochboisdale, but that it was unlikely that he could find alternative suitable work in the Southern Isles. Dr Powell found no evidence of underlying depression, and no suicidal intent. Dr Powell prescribed Diazepam, a mild anxiolytic drug, and certified him unfit for work for a month. The diagnosis stated on the certificate (No. 24/1/52 of process) was simply "stress". Both Mr and Mrs Cross expressed opposition both to anti-depressant medication and to psychiatric referral. It was arranged that James Cross would be seen again in a month, or earlier if he was unhappy about his condition. In fact he was next seen on 13 May, when he reported slow improvement, but it emerged that he had not been taking the Diazepam. He declined psychiatric referral, and denied depression or suicidal intent. He seemed to Dr Powell to exhibit a very positive attitude to his problems, having been reading about stress management. He was proposing going to the mainland for a break. Dr Powell arranged to certify him unfit for a further month from 26 May. Again the stated diagnosis was "stress". He returned to see her on 23 June. She noted that he was a great deal better and had made very positive strides in that he had visited someone who she understood to be "a member of staff in a management cum personnel position" (the reference being to Lesley Jones - see paragraph [16] below), and had discussed with her means of dealing with stress. At that stage Dr Powell certified him as fit to return to work on 28 June. Although she felt that he had improved greatly, she also noted his feeling that if he did not return to work then he would not be able to face it later, and felt that her decision was pre-empted by his having arranged with WIE to return to work. Her certificate was not, however, qualified in any way or stated to be provisional. Matters were left on the basis that he would see her again after her return from holiday (she was to be away from 30 June to 21 July). She was surprised when he did not come to see her in the three weeks after her return, but felt that it might be intrusive for her to make a home call and was confident that Mrs Cross would let her know if he was not well.

[14]When James Cross first went off work, he continued, according to Mrs Cross, to behave towards her and the children as he usually did, except that instead of being his usual independent self, he tended to follow her around and cling to her company. His confidence and concentration had gone. He went to Glasgow to seek Brian's help in identifying books on stress. Brian was taken aback at this approach. James went into more detail about his difficulties at work. He mentioned a difficulty with the vice-chairman of the Board, Peter Morrison. He reiterated what he had said before about having difficulty writing reports, which also took Brian aback, because James was a civil servant who had written thousands of reports in the course of his career. Brian inferred that it was the content of the reports, rather than the process of writing them, that was causing difficulty. James told him that he had had to re-write some reports ten times, which Brian thought "incredulous" (by which I think he meant incredible, although I do not think he meant literally that he did not believe what James was telling him). Brian was shocked by the change he saw in him. Mike Donaldson met James Cross in early June, when they both took part in the Benbecula half marathon, and found him at first very quiet. Later James told him that "everything at work was not right", that it was never going to get better, that he had lost his confidence and was not looking forward to returning to work. Mike Donaldson pressed him about whether there were other problems and was told "No, the only thing making me the way I am is my work".

[15] Receipt by HIE of Dr Powell's first certificate relating to James Cross prompted Raymond ("Ray") Owens, HIE's Personnel Manager, to contact him by telephone. Ray Owens' recollection of his dealings with James Cross was in general vague. He recalled, however, asking what the problem was, and that the main focus of James Cross's concern was that he did not get enough time face-to-face with Donald MacAulay. He offered to speak to Donald MacAulay, and James Cross accepted that intervention gladly. His recollection was that Donald MacAulay said that he gave James Cross as much time as he gave other managers, but that he was willing to address the matter. Ray Owens was aware that James Cross was under the care of his doctor, and did not see it as his function to offer additional medical help. He did, however, having ascertained that he was not receiving counselling, offer to put him in touch with someone with whom he could discuss the stress he experienced at work. He was conscious that people experiencing stress at work often have difficulty discussing it with representatives of their employers. On 15 June James Cross came to Inverness to see Ray Owens, and on the same visit was put in contact with Lesley Jones.

[16]Lesley Jones described herself in evidence as a freelance health promotion, research and training consultant. Her original degree was in botany and zoology; she holds a teaching qualification, and a certificate in health economics; she was at the material time a member of the Institution of Training and Development and of the Institute of Health Education; she has no medical, psychological or counselling qualification (see her CV No. 39/3 of process). She was originally engaged by HIDB/HIE's Staff Development Manager, Penelope Gray, to run a number of courses on managing change and stress management. She did so to Penelope Gray's satisfaction. She also offered consultations with individuals on what she described as "workplace issues". These were conducted on the basis that, although the employer would pay, the outcome would be confidential. She agreed to Ray Owens' proposal that she see James Cross, and did so on 15 June. Her invoice (No. 30/91 of process) indicates that the meeting lasted an hour and a half, and that there were apparently three follow-up telephone calls, on 23, 24 and 25 June. She understood, before the interview began, that he wished to discuss workplace stress. In the course of the interview the issues which he raised related to time management and the prioritisation of work. She suggested various techniques for boosting self esteem, such as listing his strengths and what he could do well, and his goals. She did not carry those exercises through in the course of the interview. There were produced two pieces of paper (Nos. 35/32 and 33 of process) which appeared to be James Cross's notes arising out of the interview. The second appears to contain his subsequent attempts at those exercises, and its terms suggest that the effect may well have been the reverse of what was intended, since the lists are very short. Lesley Jones appears to have suggested, as a matter of routine rather than in the exercise of judgement applied to the circumstances of the case, that he consider seeing his doctor. She did not regard herself as qualified to advise him as to whether he needed medical help. She did not recall having been told that he was already under medical treatment. In her telephone calls following up the interview, she said, he told her that he was working on time management and was fine. If that is correct, he may well have been being diplomatic. There is evidence that he understood that she was a psychologist (Mrs Cross), or a counsellor (Brian Cross). He indicated to Mike Donaldson and Roderick McDonald that seeing her had been a waste of time.

[17]James Cross returned to work on 28 June. Mrs Cross said that during the period thereafter, when she asked about his work, he said that it was "Not too bad", but was not willing to enter upon more detailed discussion. He did not run the Harris half marathon which was in his diary for 17 July. He was on annual leave for a week from 26 July. He went to Stornoway for a Board meeting on 9 August and, as a result, was not at home for Joanne's eighth birthday the following day. When he came home from work on Thursday 12 August he had a headache and was feeling awful. Mrs Cross told him that he would have to tell his superiors that he was still stressed at work. She understood that he did so, and that they (her evidence did not identify who in particular - his superior was Donald MacAulay, who was at that stage on leave) told him to see his doctor. During that period when he was back at work, Ray Owens had further contact with him. His evidence was that James Cross said that he was discussing the issues with Donald MacAulay, and that, although they were not resolved, matters were moving forward. His discussions with Donald MacAulay at that stage led him to understand that it was proposed temporarily to reduce James Cross's workload, and ease him back into work gradually. His last contact with James Cross, a call initiated by the latter, was in early August, about a week before his death. At that stage James Cross said that he was making progress, and that things seemed to be going quite well. Others regarded him as still depressed during that period. Sandra McInnes was of that view. She said he was pale and withdrawn, did not look well, and did not chat as he usually did. Donald McDonald did not see him in this period, but spoke on the telephone a couple of times. His impression was that he was not the same person as he had been before; he did not sound interested, whereas before he had been enthusiastic. He described one particular incident that had made an impression on him. James Cross had sent him by post a hand-written memo or letter and asked him to type it. He regarded that as so odd that he went to see Donald MacAulay and asked how bad James Cross really was. He said that Donald MacAulay indicated that he was really bad, and would have to decide what he was going to do, remarking that he was not James Cross's psychiatrist. Donald MacAulay's evidence was that he had no recollection of such an incident, but I am inclined to accept Donald McDonald's evidence on the point. (I do not consider, however, that the remark about not being his psychiatrist can properly be taken as evidence of an uncaring or off-hand attitude on the part of Donald MacAulay. Depending on how the subject was raised by Donald McDonald, it seems to me to be more likely that it was a matter of momentary irritation.) Martin Matheson said that during this period James Cross had a conversation with him about where he could earn a similar salary if he left the job with WIE. He described him as haunted-looking, unable to stand still, and unshaven and unkempt (these latter descriptions - it seems to me surprisingly, if they were accurate - were not mentioned by any other witness).

[18]On the day James Cross returned to work, Donald MacAulay came to see him in Balivanich, and spent most of the day with him. He said in evidence that James Cross seemed more relaxed than when he went off work in April. In the course of general discussion during the day, it emerged, he said, that James Cross wanted to return to full-time work, but not in the long term in the senior position he held in WIE. The possibilities of less onerous duties on a different grade, and of developing a career outside WIE, such as a photography business, were touched upon. Thereafter they remained in contact, mostly by telephone. James Cross was present at the Board meeting on 12 July, but his demeanour was quiet. On 15 July, when Donald MacAulay was in Benbecula to attend an army prizegiving, James Cross was also present and gave him a lift to the Barra ferry afterwards. Donald MacAulay's evidence was that on that occasion James Cross seemed relaxed and "in reasonably good fettle". Shortly after that, Donald MacAulay went on annual leave, and did not see James Cross again.

[19] Isobel McDonald gave evidence about two episodes in the last week of James Cross's life. The first of these related to the Board meeting on 9 August. At first she said that he was upset because a paper was put up to the meeting and not approved. She remembered because of what happened the next morning. She and he had a conversation at the WIE offices, and he said that he was not happy about what had happened at the meeting, and wanted to do something about it. He went upstairs to speak to Archie MacDonald who, in Donald MacAulay's absence on leave, was acting as chief executive. The minute of the Board meeting (No. 25/11 of process) shows, however, that James Cross did not present any paper to the meeting, and that there was no paper that was not approved. When that was put to her, Isobel McDonald nevertheless maintained that something at the meeting upset him. Despite the fact that she was present throughout the meeting, and had the discussion with James Cross the following morning, she was unable to say what it was that had happened at the meeting to upset him. At another stage in her evidence she maintained that it was about the allocation of work that James Cross wanted to speak to Archie MacDonald. I did not find these aspects of Isobel McDonald's evidence satisfactory. I accept that James Cross went off to speak to Archie MacDonald, and may indeed have spoken to him, but I am not satisfied that there is any reliable evidence as to why he did so. The second episode about which Isobel McDonald gave evidence took place on Friday 13 August. In the middle of the afternoon, James Cross came into her office, closed the door, sat down and began to discuss his position. He spoke about feeling that he was not coping with his work, and finding the pressures too much. He talked about resigning and going off to do something else, because he felt that he could not do the job properly. He talked about other options, such as buying a fishing boat, or becoming a photographer. Isobel McDonald explained in evidence that at that stage she too was upset about her work. It seems to have been in that context that, according to her, James Cross asked, "Have you ever thought of suicide". She replied, "No", and did not at the time take the remark seriously. It did not occur to her that he was contemplating suicide. He also spoke about his family, and the fact that he had missed Joanne's birthday through being in Stornoway.

[20]On Saturday 14 August James Cross spent time tidying his mother-in-law's peat stack. He went to the pub for about an hour, but did not drink much. It was, Mrs Cross said, a normal Saturday. On Sunday 15 August Mrs Cross went to work. At about midday her mother telephoned the hospital, concerned because James was not at home. Eventually, Mrs Cross left work early. On her way home, she came upon the scene of his suicide, where the police were already in attendance. He left a note (No. 38/44 of process) which said: "I'm sorry I've been a lying cheat to you and the girls". There was no evidence of any objective basis for such a statement.

Causes of Stress at Work

[21]The pursuers alleged that a considerable number of features of James Cross's job placed him under stress. These matters were drawn together in the evidence of Professor Jenny Firth Cozens, which is of particular importance because of the extent to which other expert witnesses relied on it as the starting point for their own consideration of the case. Professor Firth Cozens is a chartered clinical and occupational psychologist, and a fellow of the British Psychological Society. She is professor of Clinical Psychology at the University of Northumbria at Newcastle. Her CV and report are respectively Nos. 35/1 and 35/2 of process. In her report, she records that her principal research is in the fields of occupational stress and depression, and the links of these to job performance. She was asked by the pursuers' solicitors, on the basis of the papers submitted to her and identified on the first page of her report, to "comment on the organisational stressors to which James Cross was exposed; on the impact of James Cross's working conditions on his health and welfare; and on the measures which could have been taken to prevent or relieve job-related stressors". After making the introductory point that:

"Occupational stress is usually seen as the result of a mismatch between the demands of the job and the resources of the person expected to meet those demands",

Professor Firth Cozens went on to identify what she saw as stressors which affected James Cross. It is convenient to examine these item by item, to identify how far they are truly borne out by the available evidence, and how far Professor Firth Cozens ultimately adhered to them.

[22]Professor Firth Cozens expressed the view that "the principal stressor was overload in terms of the width of the demands put upon Cross". She appears to have derived her view of the nature of the demands placed upon him principally from passages in the WIE business plan (No. 30/114 of process) relating to the training function of WIE, in particular paragraphs 3.7 and 4.2.1(8). She had seen the job analysis (No. 9/4 of process) but not the job description (No. 19/3 of process). She described those demands as "enormous", and expressed the view that "many of them are having to be set up from scratch". Their scope, she said, was "wide-ranging", they attracted the largest proportion of the organisational budget, and they were spread across a "large and difficult geographical area". She expressed the view that those demands could have been met by a training department, but instead,

"James Cross had only one training officer and no administrative support and was required to travel large and difficult distances to try to meet the goals set. In my opinion, the resources provided to him were inadequate to achieve the organisational goals."

Developing that aspect of her opinion she suggested that the demands might have been met with an appropriate team of staff with James Cross "in a strategic rather than a merely operational role", and added:

"Without adequate staff it is inevitable that the role becomes reactive and that stress then grows as the perceived gap between demands and achievements becomes wider".

She then drew from the material made available to her a number of further inferences:

  • that James Cross's perception of the gap between demands and achievements was "endorsed and extended by the chief executive and members of the board - for example, in their rejection of his papers";
  • that "this must have made Cross feel unsupported from above as well as being without support from below him that he needed in terms of sufficient staffing levels to achieve the goals";
  • that "the lack of provision of even administrative and/or secretarial staff so that Cross had to master keyboard skills and answer telephone enquiries himself is quite extraordinary if the board really felt that training was key to organisational success";
  • that, in view of the level of James Cross's salary, which she thought was below that normally given "for such a leadership role", there seemed to her to be "a real ambivalence about what was expected of training", and she drew a contrast between the core position of training within the business plan and her perception that "it fails to merit even a section in the 1992-3 report";
  • that support was particularly important in a job "which clearly had the potential stressor of isolation. Not only was Cross the only person employed in the training role, but the work took place in a very large, difficult and lonely terrain"; that required, she suggested, extra support through, for example, "the provision of a mentor";
  • that there was also likely to be an element of role conflict, between James Cross's civil service background and the "entrepreneurial culture" seen as necessary by WIE; "This would mean that what he regarded as 'doing a good job' was not seen that way by his chief executive and the board; while doing the work in the way they wanted might have caused him conflict and unhappiness".

[23]On the basis of that analysis of the gap between the demands and the resources of the job, Professor Firth Cozens went on to develop her theory as to the effect on James Cross. She suggested that it resulted in his "gradually believing himself to be incapable of doing the work well", and that in the last year of his life, "no one was giving him alternative explanations for the inevitable difficulties he experienced". She said that such beliefs were the basis of "learned helplessness", which is highly predictive of later depression. Isolation and exhaustion of travel were, she suggested, likely to exacerbate his symptoms. "Undoubtedly", his mother's death would also have contributed to the course of his illness. Her conclusion was that the stressors within his work role clearly contributed to his depressive illness.

[24]In my opinion before this aspect of Professor Firth Cozens' evidence can be relied upon, it is necessary to examine whether the inferences which she drew were justified by the material that was before her when she prepared her report and, if so, whether they remain justified in light of the evidence led in the course of the proof. I am not persuaded that Professor Firth Cozens was in a position to make an objective quantification or even assessment of the demands placed on James Cross by his job. The business plan was not concerned directly with his job, but rather with the training function of WIE. He was no doubt the senior employee concerned exclusively with that function, but it is in my view a distortion to regard a description of that function as a description of his job. The job evaluation, although more specific, was written in the context of review of the grading of the job, and may therefore to some extent have been tendentious. Irrespective of the individual documents founded upon, however, I find it difficult to be satisfied that Professor Firth Cozens had an accurate impression of what workload was involved in James Cross's job. In the pursuers' pleadings some emphasis is placed on the averment that James Cross was required to produce and deliver a strategy for training for WIE. It is convenient to deal with that point here. It is not clear to me that there was a clear common understanding in the discussion of this issue as to what was meant by "strategy". In my view what is clear from the evidence is that the initial strategy for the discharge of WIE's training function was developed during the preparation of the business plan, with the aid of consultants. Thereafter the responsibility for any changes or modifications of strategy lay with the Board. I accept that James Cross would have had to explain and interpret aspects of government policy for the Board, and that that would to some extent have been new for him, since in his days with the Training Agency there had been a central policy unit responsible for such matters. I accept too that some of the papers which he required to write for the Board would have involved proposals as to the manner in which WIE ought to fulfil its training role. It is, however, in my view important not to exaggerate the difference between James Cross's role as senior training manager with WIE and his role in his last position in the civil service. Professor Firth Cozens accepted that she was not in a position to make that comparison, not having seen the records of his civil service employment or his CV. It is, in any event, not clear to me that Professor Firth Cozens regarded the "strategic" aspect of James Cross's work as central to her assessment of the breadth of the demands placed on him. She acknowledged that she did not know to what extent he was involved in a strategic role. She said, in cross examination, "I have never argued that he came with the wrong abilities for the job". That was in accordance with the evidence of Donald MacAulay, who said that prior to March 1993 he saw no sign of James Cross not being suited to the job, and that of Brian Cross, who had worked as a recruitment consultant, and regarded his brother as the ideal candidate for the job as senior training manager.

[25]It is appropriate at this stage to make reference to one aspect of the evidence given by Dr Ian W. R. Bushnell, a senior lecturer in psychology at the University of Glasgow, who attempted to assess James Cross's suitability for his job in order to evaluate his susceptibility to stress at work. He proceeded on the job analysis form (No. 9/4 of process), which he understood to be a job description. In paragraph 1 of his report (No. 39/1 of process) he identifies certain "requirements of the job" which he said were "highlighted". In fact the requirements he mentions are not "highlighted" in the job analysis, but were selected by Dr Bushnell from a mass of detail. One such detail he apparently misunderstood. He said that James Cross had responsibility for negotiation up to £1m, with ability to commit HIE/WIE without further consultation. While the first part of that is correct, the second grossly overstates James Cross's responsibility, which was in fact limited to committing WIE to the extent of £5000 on his own authority. Dr Bushnell proceeded to build upon that mistake a false contrast between the level of financial accountability required of James Cross with WIE and that required in his previous job with the Training Agency. In other respects, too, Dr Bushnell in my view overestimated the differences between James Cross's job at WIE and his previous experience. He also took at face value the statement of the consequences of poor judgement contained in paragraph 18 on page 13 of the job analysis, which seems to me to have been overstated. Although the job with WIE was no doubt a promotion for James Cross and demanded more of him than his last job with the Training Agency had done, I am not persuaded by Dr Bushnell's evidence that there was a significant gap between the demands of the job and his qualifications and experience. I prefer the view, which Professor Firth Cozens latterly accepted, and which was supported by Donald MacAulay and Brian Cross, that he was broadly suited by ability and experience to the job.

[26]Returning to the evidence of Professor Firth Cozens, it is in her assessment of the resources available to James Cross that it becomes in my view clear that her inferences are open to criticism or proceed upon a misunderstanding of the true position. At one stage in her report (No. 35/2 of process) she seemed to suggest that he was "the only person employed in a training role", but it is possible that at that point she was concentrating on the office in Balivanich. Certainly elsewhere in her report she proceeded on the view that there was one, but only one, other employee involved in training, namely the training officer. She derived that view from the staff structure chart on page 61 of the business plan. That chart did not represent the position as it existed in 1992-93. By then there were in place Gerald McGuigan, the training contracts manager, Donald McDonald, the training assistant (from July 1992), and Murdo Morrison, a development officer whose duties in part related to the training function. So far as secretarial/administrative assistance was concerned, it was wrong to say that there was none. At the Balivanich office where James Cross was based there was an office assistant available to provide secretarial and administrative assistance to him as well as to the senior development manager and development officer who also worked there. In addition, the secretarial and administrative resources of the Stornoway office were available to James Cross if he required them to supplement the resources immediately to hand in Benbecula. The facts that James Cross would answer the telephone himself (it was explained that the practice was for it to be answered by whoever was free to do so) and acquired and deployed keyboard skills when provided with a computer do not, when seen in the context of the secretarial/administrative resources actually available, in my view bear out the inference that those resources were inadequate. Ultimately Professor Firth Cozens accepted that she was unable to express a view as to whether the actual resources were or were not adequate.

[27]Although in her report Professor Firth Cozens made reference to the size of the budget for which James Cross had responsibility, I did not understand her, by the end of her evidence, to place any real emphasis on that. In cross examination she accepted that the size of the budget would not in itself be a stressor. She was, by the time she gave evidence, aware that he had power to commit WIE to expenditure of only £5000 on his own authority, and required the authority of the chief executive or the Board for larger items of expenditure, although she could not recall if she knew that when she wrote her report. She acknowledged that she did not know what size of budget he was responsible for when at the Training Agency, or what resources were available to him there. It does not seem to me that there is, in her evidence, any basis for relating the magnitude of the demands of James Cross's job to the size of the budget of his department, or for identifying the size of the budget as a factor contributing to stress.

[28]Professor Firth Cozens also referred to the "large, difficult and lonely terrain" covered by James Cross's job. That seemed to me to be an outsider's exaggerated perception of the difficulties of life in the Western Isles. Two aspects of the matter require, in my view, further consideration. One is whether the travelling involved in the job was a significant stressor. The other is whether the fact that he was based in Balivanich rather than Stornoway contributed to a feeling of isolation. While there was general evidence from Professor Firth Cozens that commuting tends to be stressful (and from Dr Bushnell to a similar effect albeit relating to a wholly different sort of travel), and evidence that James Cross required regularly to travel to Stornoway, and less frequently to Inverness, Glasgow and Edinburgh, there was nothing in the evidence that suggested that James Cross in fact found that aspect of his job at all stressful. It would, in my view, be speculative to suppose that he did. There is, on the other hand, some evidence that James Cross, at least latterly, did feel isolated, at least in part because he worked mainly from Balivanich while both the superior to whom he reported and the subordinates who reported to him worked in Stornoway. There is, however, in my view no firm basis for a finding that, before he became depressed, James Cross found the fact that he was based in Balivanich a difficulty in his job. It was largely as a result of his own choice and preference that he was based there.

[29]Professor Firth Cozens' perception that James Cross would be stressed by the ambivalence of WIE towards training was, in my view, based on a number of misconceptions. She saw that ambivalence in the lack of manpower, in the level of James Cross's salary and in the absence of treatment of training in the 1992-93 report. I have already set out why I consider that her view on manpower was erroneous. So far as James Cross's salary is concerned, the fact is that he was graded one level below the chief executive and on the same level as other senior managers, and I do not see anything untoward in that in organisational terms. The point about the 1992-93 report is a plain mis-statement. So far from there being no section in it dealing with training, there is a two page section on the subject, albeit headed "Human Resource Development". Given that Professor Firth Cozens said in cross examination that she had read that part of the report, I find it very difficult to understand how she felt justified in saying in her report that training failed to merit a section in the report, or in inferring on that basis an ambivalence on the part of WIE as to the importance of its training function. There is, moreover, even if she had been right about the terms of the report, no proper basis for her assertion that "This ambivalence would undoubtedly have been felt by Cross and would only have served to make his job more difficult", since it seems clear that the report was not published until after his death.

[30]It seems to me that the most important part of Professor Firth Cozens' reasoning as to the stress to which she thought James Cross was subject at work is the part relating to his treatment by the chief executive and the members of the Board. She argued that his perception of the gap between the demands of the job and the resources available to him was:

"endorsed and extended by the chief executive and members of the board - for example, in their rejection of his papers - and that this must have made [him] feel unsupported from above".

Later she added the point about the conflict between his civil service background and the "entrepreneurial culture" seen as necessary by WIE. Taking the latter point first, there seems to me to be little substance in it. So far as the chief executive was concerned, he was as much from a civil service background as James Cross was (HIDB rather than Training Agency). The point about "entrepreneurial culture" seems to be based on an episode mentioned in the pursuers' pleadings about an application for a training contract made by a company belonging to the vice-chairman of the Board, Mr Peter Morrison. The averment is that this created ethical difficulties for the pursuer, and that Mr Morrison put pressure on him. Brian Cross gave evidence that James had complained about that to him. Other evidence was, however, to the effect that the application was rejected by a sub-committee of the Board. It is not in my view justifiable to draw from that incident the inference that what James Cross saw as doing a good job was not seen that way by the chief executive and the Board. The more general point about rejection of papers prepared by James Cross was explored in more detail in the evidence, and is the subject of something of a conflict.

[31]The Board minutes contain nothing which, in my view, supports the contention that James Cross's papers suffered rejection by the Board. In evidence Professor Firth Cozens eventually relied only on her interpretation of an entry in the minutes of the meeting of 15 December 1992 (No. 25/5 of process, item 11.92.11). The relevant passage in the minutes (as subsequently corrected) is in the following terms:

"Training Contracts Paper

J Cross outlined this paper to the Board. Members expressed concern with regard to the general economic climate which was adversely affecting placement opportunities. It was felt that some employers could not afford the contribution which training providers request for placing a trainee with them. After discussion the Board approved the paper and requested a further paper proposing imaginative use of the cash surpluses accrued to WIE from training activities.

J Cross was asked to follow up the training budget allocation for 1993/94 with R Lingard at HIE, to allow WIE staff to plan and negotiate with Training Providers."

It is plain that there was no rejection of James Cross's paper on that occasion. Nor in my view is there any justification for reading out of the request for a further imaginative paper an implied criticism of the paper under discussion. There was more general hearsay evidence that James Cross complained of his papers being "savaged" by the Board, but there was no direct evidence of anything of the sort. Isobel McDonald could not recall any such incident, and Donald MacAulay's evidence likewise contained no support for the contention.

[32]It is clear that in the ordinary course a paper being written by James Cross for submission to the Board would be sent to Donald MacAulay for revisal. There was, however, a conflict in the evidence as to how this process worked in practice. According to Donald MacAulay the purpose of such revisal was to enable him to help in strengthening the reports. Normally he would send the draft report back with marginal annotations, and perhaps follow it up with a telephone call. More difficult papers would go back and forth two or three times before being finalised. Isobel McDonald, however, said that she had had papers returned on several occasions up to fifteen or twenty times, and that it affected her self-confidence. So far as she was aware, the same had happened to James Cross. She had discussed the matter with him. Donald MacAulay said that he had no recollection of any paper being re-written as often as that. It would be highly unusual for that to happen, and he would expect to remember it if it had. There was also some hearsay evidence on the point. Mike Donaldson said that James Cross said that the draft report he had with him in Skye in December 1992 had been "back and forward several times to Stornoway", but that seems to me not to be inconsistent with the sort of revisal process mentioned by Donald MacAulay. James Cross also mentioned to his brother Brian in April 1993 that he had had to write some reports ten times. It does not seem to me to be an inevitable inference that they had been sent back for re-writing that often. It may be that that was simply a reflection of the difficulty that James Cross by that stage (i.e. when already suffering from depression) perceived himself to have in writing reports. On the whole I am not satisfied that it would be right to conclude that James Cross had his draft reports repeatedly rejected by Donald Macaulay. I have reservations about Isobel McDonald's objectivity on this point (she was plainly antipathetic to Donald MacAulay), and about the accuracy of her attribution to James Cross of experience of the same difficulty that she claimed herself to have suffered (she indicated that she would defer to the secretary's evidence if it was different). Although Donald MacAulay was curiously reticent in saying only that he had no recollection of rejecting any report of Isobel McDonald's as often as fifteen or twenty times, rather than saying categorically that it did not happen, that seems to me simply to have been a feature of his caution as a witness. He denied ever requiring James Cross to re-write a paper ten times. I have no reason to disbelieve his evidence. It would, I think, have been an uncharacteristically inefficient way of proceeding for him repeatedly to reject drafts without making it plain to the author at the first or second attempt what was needed to put the matter right.

[33]In evidence, although not in her report, Professor Firth Cozens made reference to a further possible stressor. She expressed the view that to undergo an appraisal in the terms suggested by Donald MacAulay's document (No. 24/1, page 88) would be "quite a blow" to James Cross. She regarded it as "an very negative appraisal". It does contain reference to reports which "did not materialise", and identifies that James Cross would benefit from inter alia "training in ... report writing ...", but it seems to me that to some extent the negative air of the document is the result of the negative focus of the pro forma questions posed. It requires also to be noted that one of the "targets ... performed well" was "report preparation of Training Programme", and the document requires to be interpreted in the context of Donald Macaulay's evidence that he had noticed no deterioration in James Cross's work.

[34]For the reasons I have discussed I am not satisfied that there is a proper evidential basis for concluding that James Cross's reports were repeatedly rejected in draft by Donald MacAulay, or regularly (or for that matter ever) rejected in their final form by the Board. The impact of that conclusion on the extent to which it is possible to rely on Professor Firth Cozens' view about the presence of stressors in James Cross's work is significant. That is because her conclusion that James Cross was affected by "learned helplessness" resulting in his depression was, as she accepted in cross examination, dependent on his having suffered repeated rejection of reports by Donald MacAulay and the Board. Looking at the matter of stressors more broadly, I am of opinion that when account is taken of the evidence which I heard about the matters which Professor Firth Cozens identified as stressors in James Cross's job, her conclusions in general have little substantial support. I do not consider that it has been proved that, objectively, James Cross's job was such as to subject him to such stress as to be likely to cause him psychological harm. I am reinforced in that conclusion by the undisputed evidence that until late 1992 or early 1993 he appeared to enjoy his job, and performed his duties in a satisfactory manner.

The Nature and Cause of James Cross's Depression

[35]Although the psychiatrists and psychologists who gave evidence were in agreement that latterly James Cross was suffering from depression, there were various views about the nature and origin of the condition. Those who gave evidence were (1) Dr Traolach S. Brugha, a clinical senior lecturer in the Department of Psychiatry at the University of Leicester, and head of the Section of Social and Epidemiological Psychiatry, who is also an honorary consultant psychiatrist at the Brandon Mental Health Unit in Leicester (report No. 44/2 of process); (2) Dr Christopher L. Hallewell, a consultant in old age psychiatry at Garlands Hospital, Carlisle (report No. 39/4 of process); (3) Professor Jeffrey A. Gray, Emeritus Professor of Psychology and formerly head of the Department of Psychology at the Institute of Psychiatry, London (report No. 44/3 of process); (4) Dr D. G. Cunningham Owens, Reader in Psychiatry at the University of Edinburgh and Consultant in Charge of the Psychiatric Emergency Team at the Royal Edinburgh Hospital (report No. 22/1 of process); (5) Professor Firth Cozens; and (6) Dr George Masterton, a consultant psychiatrist in the Department of Psychological Medicine at the Royal Infirmary of Edinburgh (report No. 38/41 of process). Because they were in agreement about the core diagnosis, I do not record their evidence in detail, but it may be useful to set out in outline such differences as there were among them.

[36]Before turning to the individual witnesses it is worth noting that there was no support from the experts for Dr Powell's view that James Cross was suffering only from anxiety, or for the appropriateness of the medication which she prescribed (but which James Cross in the event appears not to have taken). The general view was that, while symptoms of anxiety may to some extent have been present, no diagnosis that failed to recognise that there was a depressive condition was complete. The effect of the erroneous or, at best, incomplete diagnosis that Dr Powell made was that James Cross did not receive either of the two forms of treatment available in respect of depression, namely anti-depressant medication and cognitive behavioural therapy. The result was that his depression went untreated.

[37]Dr Brugha introduced reference to two systems of classification of diagnoses, the International Classification of Diseases "ICD-10" (World Health Organisation, 1992) and the Diagnostic and Statistical Manual "DSM-IV" (American Psychiatric Association, 1994), the purpose of which is to aid communication between clinicians. He pointed out that a prerequisite of the use of a diagnosis based on these systems of classification was that each criterion should be assessed before being endorsed, and that that could only be done with a living and co-operating patient. He expressed the view that without a specialised psychiatric interview it must be almost impossible to be sufficiently precise as to which of the many different types of symptoms of depression James Cross was suffering from. I did not understand any of the other psychiatric witnesses to disagree with the view that it was far from satisfactory to have to attempt a diagnosis without having seen the live patient. It is therefore perhaps scarcely surprising that differences of view and of emphasis emerged. Despite the difficulties, however, several of the witness did offer views expressed in terms of ICD-10 or DSM-IV.

[38]In his report Dr Brugha expressed the view that the range of symptoms described by the various observers whose statements he had seen went beyond mild adjustment depression (ICD-10, F43.21). Later he added, "My own judgment is that this was not a severe depression. The patient had considerable loss of functioning, but not complete loss." Although he did not express that in terms of ICD-10, my understanding is that he was in effect placing James Cross's depression in category F32.1. Dr Brugha was asked to consider in his report the question whether James Cross's "difficulties at work made a material contribution to the development of [his depression]". He considered other life events, including the death of Mrs Cross, senior, and the possibility that other unidentified factors played a part, but concluded that "the most salient of the possible contributors" was "entrapment in a job without which he would have to relinquish his life long ambition to live on the island". He identified two reasons for that conclusion. One related to the nature of the stressor, as to which he said: "That the job presented Mr Cross with demands beyond his experience, training and capabilities is amply stated by others, with specific expertise in occupational stress, including most notably Professor Firth Cozens". He had not, as I understood him, assessed that matter for himself (no doubt because that was not his expertise) but had simply adopted her conclusions. The consequence is that his conclusions are to a material extent undermined if, as I have held, Professor Firth Cozens' views are to a significant extent not well-founded in fact. Dr Brugha's second reason for his view on causation lay "in the nature of the time course of events and ill health". He saw as "the most telling factor ... the temporary improvement in his state of mind during the period of respite, ordered by the general practitioner, which was then followed by the rapid deterioration upon his returning, as has been pointed out, to face the full burden of the same role including the responsibility to catch up on work accumulated during that period of leave". I shall return in due course to the question whether Dr Brugha's appreciation of the situation faced by James Cross on his return to work is correct. Leaving that aside for the present, however, I had some difficulty in understanding why Dr Brugha was able to draw support for his view of causation from the improvement while off work, when he had recognised earlier in his report that there was a two-way relationship between deterioration in mental functioning and deterioration in occupational functioning. If depression, of whatever origin, made James Cross less able to cope at work, and his inability to cope at work then made his depression worse, temporary improvement while off work would, it seems to me, cast no clear light on the origins of the depression. In cross examination Dr Brugha recognised the possibility that the causal relationship might be that depression caused the difficulties at work rather than vice versa. He also accepted that his concept of "entrapment", which he accepted was similar to Professor Firth Cozens' concept of "learned helplessness", might emerge irrespective of the original cause of the depression. In re-examination he re-asserted the view that on the available evidence, other possible causes having been excluded, work stress was on balance the most likely cause of James Cross's depression.

[39]Dr Hallewell's diagnosis was that James Cross's condition was a moderately severe depressive disorder (ICD-10 Code F32.1). When turning to deal with the question of causation, he made the point that the diagnostic criteria used make no reference to causation. Insufficient information was available to enable a complete explanation of causation to be formulated. The difficulty was aggravated by the fact that there was no live patient to interview. While not wholly rejecting the possibility of biological or internal causal factors, he was of opinion that that was rare. He considered a number of external factors. One was the death of Mrs Cross, senior. He concluded that that event might have worsened or maintained the depression, rather than having caused it, but that view appeared to depend on the conclusion from Mike Donaldson's evidence that the depression had its origin before the end of 1992. He also considered the evidence that James Cross had "flu" shortly after the death of his mother as a possible indicator of psychological distress at that time, but I did not understand him to express any firm conclusion on that. So far as the role played by work in the development of the depression was concerned, Dr Hallewell expressed the opinion that the relationship was likely to be complex. He pointed out that depression was likely to impair work performance and lead to the sufferer making an inaccurate assessment of his abilities. Nevertheless, taking the "reality and severity of Mr Cross's difficulties at work" to be as they were described in the witness statements made available to him, which included Professor Firth Cozens' report, he concluded that there were real difficulties of a nature that might well dispose to depression. He also derived support for the importance of the role of his work in the genesis of James Cross's depression from the temporal correlation between attendance at work and his abnormalities of mood (although in cross examination he accepted that such a pattern of correlation could arise irrespective of the original cause of the mood disorder). He identified the lack of appropriate treatment as a possible maintaining factor. His over all conclusion was that it was extremely likely that difficulties at work made a significant contribution to the causation and non-resolution of James Cross's depressive disorder. Although he accepted as plausible a scenario put to him by Mr Jones figuring a person competent at and enthusiastic about his job, who for reasons unknown began to develop a mood illness, and as a result became less able to cope with his work, so that his condition deteriorated, he countered by stressing the significance of what James Cross himself said about his difficulties as support for a different scenario, in which the role of difficulties at work was causal.

[40]Professor Gray, while pointing out that a precise diagnosis would have required a full psychiatric assessment and thus a live patient, identified factors which indicated that the diagnostic possibilities in the case of James Cross included "major depressive disorder with melancholia" and "depressive illness with endogenous features", as defined in DSM-IV. As to causation, he expressed the view that there was "considerable evidence that Mr Cross's psychiatric problems can be attributed to the work situation (as documented in Professor Firth-Cozens' report ...) and little evidence of other major factors". He pointed to the absence of any psychiatric history and to aspects of James Cross's pre-morbid lifestyle. There was no evidence of domestic or relationship problems. He rejected the death of Mrs Cross senior as a causal factor partly on the evidence of the nature of James Cross's reaction to his mother's death, and partly on the basis of the evidence that his mood disturbance antedated that event. He appeared to accept more or less at face value the contents of Professor Firth Cozens' report, and on the basis of it expressed the view that "Mr Cross's work situation set him important objectives which he felt it was impossible for him to achieve due to circumstances beyond his control; he also felt it was impossible to withdraw from this situation. These are the classic antecedents for depression." He took issue with the views expressed by Dr Cunningham Owens and Dr Masterton, suggesting that their view implied a false dichotomy between biological factors and external causes. His view was that only in extreme cases (such as bipolar manic-depressive disorder) was there true "endogenous" depression in which environmental factors played little part, and James Cross's was not such a case. He also suggested that the distinction between work stress causing depression and depression causing poor work performance was a false dichotomy. In virtually all cases there was a vicious circle in which depression and the stress of poor performance enhanced each other. It seems to me that while the point about a vicious circle is no doubt well taken, and no doubt makes it more difficult to come to a conclusion about causation, it does not follow that the distinction between work stress causing depression and depression causing poor work performance is a false one.

[41]Dr Cunningham Owens expressed the opinion that James Cross was suffering from a major depressive episode in the period prior to his death. He expressed uncertainty as to when it began. As to causation, he thought that the death of Mrs Cross senior might have played a role, but recognised that it was arguably no more than an aggravating factor in an illness already by then begun. Although he accepted that the issue could not be resolved categorically, his view was that the balance of probability was that the developing depressive illness obtruded on James Cross's professional competence. On the basis of his clinical experience, he maintained that in cases specifically of major depressive illness, rather than adverse life circumstances resulting in illness, it was commoner for the evolving depressive illness to promote adverse life circumstances. He regarded James Cross's illness as "a very severe major depression indeed", and formed the view on the basis of what he called "slim but compelling evidence", namely the suicide note, that latterly there was a psychotic element in it. He suggested that James Cross's own attribution of cause was not a true guide. Difficulty at work was James Cross's leading symptom, but in the search for the cause of the condition that was a "notorious red herring".

[42]Dr Masterton, on the information available to him, concluded that James Cross was almost certainly suffering from mental illness during the weeks prior to his death, and categorised that illness as a major depressive disorder (DSM-IV), in his view a single depressive episode. He expressed the view that "depressive illness is not infrequently biologically determined, by factors such as genetic predisposition, and there need not be any external causal factor." He added, "It is human nature that leads patients and their families to attempt to make sense of their illnesses by establishing a tangible attribution" [of cause]. In evidence he added that there were cases where there were external causes but they were not identified. Nevertheless, he accepted that the information before him suggested that occupational factors were relevant in James Cross's case. The difficulty, he suggested, lay in determining how material the contribution made by those factors was. The effects of depressive illness, he said, commonly included loss of confidence and self-esteem, and impairment of thinking, concentration, memory, decision-making and judgement. In his clinical experience an employed person who has a depressive illness not infrequently presents complaining of inability to cope with work - "The fact is depressed patients are usually and genuinely not able to cope with a job which they performed satisfactorily before because they are mentally ill ... The time to explore in depth what stresses, if any, precipitated or contributed to their depression is in the phase of recovery when sound reasoning and judgement are restored." He recognised the possibility that James Cross' working conditions played a part in precipitating his depression, but said that he could not on the available material reach a concluded view. The indications that he felt better while off work and worse again when he returned did not, in Dr Masterton's view, support the conclusion that work conditions were causative of the depression, although they were consistent with that view of causation. He considered that it was impossible to go further than to conclude that being at work made the depression worse. Whatever the cause of the depression, if James Cross perceived it as related to his work, a return to work would make it worse. Dr Masterton regarded it as relevant to take note of the patient's view as to the cause of his depression, but considered that it could not simply be accepted at face value.

[43]On the basis of the evidence of the lay witnesses who observed James Cross during the period from the end of 1992 until his death, interpreted in light of the expert evidence, I have no hesitation in finding it proved that in the period from April to August 1993 James Cross was suffering from a major depressive disorder.

[44]I do not consider that it has been proved on the balance of probabilities that it was James Cross's work or working conditions that caused or precipitated his depressive illness. What is, in my view, clear from the expert evidence is that the identification of the cause of depressive illness in any individual case is fraught with difficulty. Those difficulties are formidable enough in the case of a living patient, available for interview and willing to co-operate in the investigation of his illness. They are considerably greater in a case such as the present where the subject is no longer alive, and where no accurate diagnosis of his illness was made when he was alive.

[45]There was a divergence of opinion among the expert witnesses as to the role played on the one hand by internal or biological or genetic factors and on the other hand by external factors or life circumstances in the causation of depressive illness. It seemed to me that the differences were largely differences of emphasis or degree. On one view, supported by Professor Gray, it was suggested that it is only in certain cases of "psychotic" depression, such as in a bipolar disorder, that depressive illness arises without external cause. I do not consider that James Cross can properly be placed in that category. The terms of his suicide note are not, by themselves, in my view an inadequate basis for the conclusion that his condition was psychotic. On another view, supported by Dr Masterton, it is not uncommon for depression to be biologically determined, without external cause. Dr Masterton also recognised the possibility, however, of cases in which there was an external cause which remained undetected or unidentified. It seems to me to be very difficult to distinguish a case of that sort from one in which there is truly no external cause. I am not persuaded by the evidence of those experts who emphasised the possibility of internal causation that it is meaningless to ask what caused James Cross's depression, or that a search for the cause in the circumstances of his life is doomed to failure. Conversely, however, I am not persuaded that an examination of the evidence available in the present case will necessarily lead to the identification of external circumstances that operated as the initiating cause of the illness.

[46]It is not possible, in my view, to be certain about when the depressive illness began, and care must therefore be taken to avoid drawing inferences about cause from an insecurely-based view of the stage at which the condition first manifested itself. In the present case, there is no evidence at all of a depressive illness having begun earlier than December 1992. Indeed, it seems to me that it is unsafe to draw any clear conclusion from the evidence about James Cross's behaviour on Skye in December 1992. It is possible that at that stage he had begun to suffer from a depressive illness, but Mike Donaldson's evidence is in my view an inadequate basis for a firm conclusion. That evidence seems to me to be explicable in terms of the pursuer simply having been worried about a particular troublesome piece of work. I do not therefore consider that there is an adequate basis in the evidence for holding that the onset of the depressive illness antedated the death of Mrs Cross senior.

[47]Conversely, however, even if the death of his mother took place before there was any other clear indication that James Cross was developing a depressive condition, I do not consider that there is an adequate evidential basis for a clear conclusion as to whether that death contributed causally to the development of the illness. Although the event was one of a category that is known in some cases to cause depressive illness, it seems to me that where there is no history of a tendency on James Cross's part towards depression, and evidence that his reaction to his mother's death was moderate and rational, there is no ground for elevating that event beyond the status of a possible contributor to the development of his condition.

[48]As was pointed out by a number of the expert witnesses, the relationship between work conditions and depressive illness is potentially complex. It was not, I think, disputed that stressful working conditions can cause a person to develop a depressive illness. Conversely, I do not consider that it was seriously questioned that depressive illness can affect adversely a person's ability to cope with his work. There can develop what was referred to in evidence as a vicious circle or vicious cycle in which the more depressed a person becomes, the worse he performs at work, and the more he perceives that he is performing badly at work, the worse his depression becomes. When the matter comes to be investigated once the depression is established, it is very difficult to break into the circle and identify where it began. One circumstance in which it might be possible to do so would be if there were clear evidence that the conditions of work were such as to be objectively likely to precipitate depression. That is the route to a conclusion about causation that the pursuers' pleadings suggest should be followed in the present case. If it had been established that before he became depressed James Cross was struggling to cope with a job which placed on him responsibilities the nature and scope of which were beyond his capacity and experience and for which he was inadequately trained; that the staff resources available to him, including secretarial and administrative support, were inadequate; and that the resulting difficulties were compounded by the humiliating experience of having his work regularly and repeatedly rejected by the chief executive, and then, when finalised, rejected or subjected to unreasonable criticism by members of the Board of WIE, it might have been reasonable to conclude that it was probably those stressful circumstances that precipitated the depression, rather than depression that led him to feel that he was not coping with his job. Those expert witnesses who identified James Cross's working conditions as the likely cause of his depression proceeded to that conclusion on the basis that such stressful conditions did objectively exist. For the reasons discussed in paragraphs [21] to [34] above, however, I am of opinion that it has not been established that in those ways the conditions in which James Cross worked were such as to be objectively likely to precipitate depression.

[49]I accept that latterly, from March or April 1993 onwards, it was James Cross's perception that he was unable to cope with his work or at least certain aspects of it, and that he felt that it was that inability to cope with his work that was making him depressed. I do not consider that it would be right either wholly to reject that perception or to accept it at face value. The difficulty about treating it as evidence of the cause of the illness is that it comes almost wholly from the period during which James Cross was already suffering from a depressive illness. I accept the evidence that such an illness is likely to impair the sufferer's confidence and self-esteem, and his ability to think and to concentrate, to exercise judgement and to make decisions. It is therefore hardly surprising that once he had become depressed, James Cross's ability to do his job was impaired, and that he was conscious of that impairment. That consciousness of inability to cope would, I accept, tend to make the depression worse. To that extent, his perception that the problem lay in the stress of his work was no doubt partially sound. It seems to me to be right to conclude that for James Cross to work on after he had become depressed operated at least as what was referred to in the evidence as a "maintaining factor". I do not consider, however, that the evidence of James Cross's own perception of the cause of his condition can in these circumstances be accepted as reliable evidence that the originating cause of his depression was stress caused by his working conditions.

[50]For similar reasons, I do not consider that any reliable conclusion about the initiating cause of the depression can be drawn from such evidence as there was of a temporal correlation between presence at work and the severity of the depression. It was, it seems to me, largely accepted by the expert witnesses that if depression impaired his ability to cope with his job, and thus led him to perceive that his difficulties stemmed from his work, his depression might well tend to be worse when he was at work, or returned to work, than when he was off work.

[51]My conclusion is that it has not been proved that the initiating cause of the depressive illness from which James Cross was suffering between April and August 1993 was stress arising from his work. That leaves the initial cause of his condition undetermined. It remains possible that it was indeed something about his work that started the process by which he became depressed, but the evidence does not in my opinion justify more than the recognition of that possibility. I do accept, however, that whatever the true initiating cause of the depression was (if indeed there was an external cause), James Cross perceived that the source of his depression lay in difficulties at work.

The Case of Common Law Fault

[52]In their pleadings the pursuers aver that the death of James Cross was caused or materially contributed to by fault and negligence on the part of HIE as his employers. The averments in support of that case begin in conventional fashion with the assertion that it was HIE's duty "to take reasonable care for the safety of their employees including the deceased", and "to take reasonable care to provide him with a reasonably safe system of work." The case is then developed by reference specifically to the period after 26 April 1993 when they received intimation "that the deceased was suffering from stress at work". Miss O'Brien, in making her submissions on the pursuers' behalf, was at pains to emphasise that they made no allegation that HIE were guilty of negligence before that stage. It is averred, however, that after that date it was HIE's duty -

"to take reasonable care to investigate the pressures at work which had driven the deceased to breaking point. It was their duty to take reasonable care to refrain from exposing the deceased to the same workload as he had been handling prior to 26 April 1993, and otherwise to reduce his exposure to sources of stress at work".

There then follow various averments of the basis on which it is said that HIE ought reasonably to have foreseen that James Cross was likely, if that was not done, to succumb to further psychiatric harm or illness. There is also much particularisation of the steps which, it is said, HIE should have taken in pursuance of the duty of care which they owed to James Cross. There then follow the averments that:

"In the exercise of each and all of said duties the Defenders failed, and so caused the deceased to be so vulnerable to psychiatric damage that in consequence of depression he killed himself. Had the Defenders fulfilled the duties incumbent upon them, psychiatric damage, in consequence of which the deceased killed himself, would not have occurred".

(a) The Duty not to Expose Employees to Risk of Psychiatric Injury

[53]A number of issues are raised by that case of fault. The most fundamental one is whether WIE did indeed owe to James Cross as their employee a duty to take reasonable care not to expose him to working conditions that were reasonably foreseeably likely to cause damage to his mental health. Mr Jones for the defenders argued inter alia that the law imposed on employers no such duty.

[54]In support of the proposition that the common law imposes such a duty on employers, Miss O'Brien relied first on an English decision, Walker v Northumberland County Council [1995] 1 All ER 737. In that case a social worker suffered a nervous breakdown because of stress and pressures at work, and in consequence was off work for three months. Before he returned to work, his employers agreed that the burden on him would be lessened. In the event, very little additional assistance was provided, and he had to deal with a backlog of paperwork that had built up in his absence. Six months later he suffered a further nervous breakdown which incapacitated him permanently. It was held that where it was reasonably foreseeable to an employer that an employee might suffer a nervous breakdown because of the stress and pressure of his workload, the employer's duty to provide a safe system of work included a duty to take reasonable care not to cause the employee psychiatric damage by reason of the volume and character of the work he had to perform. The case appears to have been contested principally on the question of foreseeability. On the evidence, psychiatric harm was held not to have been reasonably foreseeable before the first breakdown, but to have been reasonably foreseeable thereafter. The employers were therefore held liable for the second breakdown. Colman J said (at 749c-d):

"It is clear law that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the [employee] as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care ...".

That said, Colman J went on to recognise the likelihood of extremely difficult evidential problems of foreseeability and causation. Miss O'Brien also referred to Petch v Customs and Excise Commissioners [1993] ICR 789, in which the existence of a duty to take care that an employee's mental health was not harmed by his working conditions was conceded, but the plaintiff failed to establish that such harm was reasonably foreseeable, and to various other cases in which there had been no positive judicial decision on the point. Reference was also made to certain obiter remarks by Lord Reed in Rorrison v West Lothian Council 2000 SCLR 245, and to his allowance of a proof before answer in Ward v Scotrail Railways Limited 1999 SC 255.

[55]Miss O'Brien sought to place Walker in the context of the development of the law concerning the duties owed by an employer to his employees. She referred, among other authorities, to English v Wilsons and Clyde Coal Co 1937 SC (HL) 46 per Lord Wright at 64 ("... the whole course of authority recognises a duty which rests on the employer, and which is personal to the employer, to take reasonable care for the safety of his workmen ..."), and pointed out that it was well established that the duty extended to taking reasonable care for the health as well as the safety of the employee (e.g. Crookall v Vickers-Armstrong [1955] 1 WLR 659, McCafferty v Metropolitan District Police Receiver [1977] 1 WLR 1073).

[56]In submitting that the duty to take care for the employee's health extended to cover mental health, Miss O'Brien also placed reliance upon Page v Smith [1996] AC 155. In that case the plaintiff was held as a matter of fact to have suffered a recrudescence of myalgic encephalomyelitis as a result of a road accident in which he was physically unhurt. It was held, in the House of Lords, that in the case of a primary victim of an accident, the test in all cases was the same, namely whether the defendant could reasonably foresee that his conduct would expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If that test was answered in the affirmative, the duty of care was established, and breach of that duty would result in liability for psychiatric damage caused, even if no physical injury in fact occurred. Miss O'Brian referred to various passages in the speeches of their Lordships, but I do not find it necessary to rehearse them here. In reading the dicta in Page, it is in my view necessary to bear in mind that it was concerned with the unusual case where physical injury was what was reasonably foreseeable, but psychiatric injury was what occurred. Miss O'Brien also, at a later stage in her submissions, made reference to three unreported cases in which Walker had been referred to with apparent approval (Leach v Chief Constable of Gloucestershire Constabulary, [1999] 1 WLR 1421, per Brooke LJ at 143D and Henry LJ at 1442D; Beard v Jevans Furnishing Co. Ltd., Court of Appeal, 6 October 1999; and Alexander v Midland Bank plc [1999] IRLR 723, per Stuart-Smith LJ at 732, paragraphs 50-51).

[57]Mr Jones submitted, as the first line of defence to the pursuers' case of common law fault, that WIE owed James Cross no duty to take reasonable care to protect him from the risk of purely psychiatric injury caused gradually by doing the work that he was employed to do. In making that submission, Mr Jones accepted that WIE had a duty to take reasonable care to provide for James Cross a safe system of work. What he disputed was that that duty extended to the provision of a system of work that would protect him from psychiatric injury sustained otherwise than by an "assault on the senses". He submitted that Colman J in Walker had asked himself the wrong question. The issue was not whether there was any logical reason for excluding the risk of psychiatric damage from the employer's duty of care, but whether there was any rule of law that prevented its inclusion within the scope of the duty. In that connection he cited the following passage from the speech of Lord Steyn in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 497F:

"It is a non sequitur to say that because an employer is under a duty to an employee not to cause him physical injury, the employer should as a necessary consequence of that duty (of which there is no breach) be under a duty not to cause the employee psychiatric injury".

Mr Jones submitted that the law, in England as in Scotland, had always regarded psychiatric illness as a condition of a sufficiently special type to fall into a separate category governed by a system of rules different from those that apply to physical injury. That special category, he submitted, was traditionally known as "nervous shock" (McLoughlin v O'Brian [1983] 1 AC 410 per Lord Wilberforce at 418A - "damage ... caused by the impact, through the senses, of external events on the mind"; Robertson v Forth Road Bridge Joint Board 1995 SC 364 per Lord President Hope at 365H - "Cases of nervous shock, or of psychiatric illness as this type of injury has been described more accurately in the recent authorities"). In support of the proposition that it was a prerequisite for recovery of damages in respect of psychiatric illness that the condition was induced by the sudden appreciation of a horrifying event, Mr Jones cited a passage from the speech of Lord Ackner in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400E-401F, and in particular the following dicta:

"(1) Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. ...

(5) "Shock," in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system";

(see also per Lord Keith of Kinkel at 398G; Page v Smith per Lord Jauncey of Tullichettle at 171A and 179F). Since there was no question of James Cross's psychiatric illness having been caused by a sudden assault on his nervous system, his case did not come within the category of psychiatric illness which could give rise to a cause of action.

[58]There remained, Mr Jones submitted, the question of whether the subsistence of the employer/employee relationship between HIE and James Cross made a critical difference. He submitted that it did not. In support of that submission he referred at considerable length to Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455. In that case the plaintiffs, police officers who brought claims for damages in respect of psychiatric injury suffered as a result of tending victims of the Hillsborough disaster, sought to distinguish Alcock on the ground inter alia that the duty of the Chief Constable, as their quasi-employer, included a duty to take reasonable care not to expose them to a risk of psychiatric injury. At first instance it was held that the Chief Constable's duty of care embraced psychiatric injury, but did not arise where the plaintiff was a secondary victim (unless he was a rescuer). The Court of Appeal held that the Chief Constable's duty of care owed to his quasi-employees in respect of psychiatric injury arose irrespective of whether the plaintiff was a primary or a secondary victim. The House of Lords, by a majority, held (according to the summary in the headnote at 456D) that the Chief Constable's duty of care did not extend to protecting the plaintiffs from psychiatric injury when there was no breach of the duty to protect them from physical injury, and that the general rules restricting the recovery of damages for pure psychiatric harm applied to the plaintiffs' claims as employees. To explain the difference between a primary victim and a secondary victim, Mr Jones referred to the speech of Lord Oliver of Aylmerton in Alcock (at 406H-407B and 401G-411B). Reverting to Frost, he cited passages from the speech of Lord Griffiths at 462C-D, and 464B-F, of which it is perhaps sufficient to quote the following part (464E-F):

"The law of master and servant is not a discrete and separate branch of the law of tort, but is to be considered in relation to actions in tort generally. Here we are considering the tort of negligence and the nature of the duty of care owed by one who negligently creates a catastrophic situation. In order that there shall be some limits to the consequences of the negligence for which the defendant is to be made liable the law imposes the controls I have discussed in the Alcock case ...[i.e. close ties of love and affection with the victim, presence at the accident or its immediate aftermath and psychiatric injury caused by direct perception of the accident or its aftermath].

In my view these should apply to all those not directly imperilled or who reasonably believe themselves to be imperilled, irrespective of whether they are employees or not. Accordingly, I would allow the appeals in so far as the police rely on their status as employees."

Mr Jones then cited part of the speech of Lord Steyn (497D-498B). That part included the passage which I have quoted in paragraph [57] above, and went on to the conclusion that one was therefore thrown back to the ordinary rules of the law of tort "which contain restrictions on the recovery of compensation for psychiatric harm". The third speech which Mr Jones cited was that of Lord Hoffmann (501C-H, and 505D-506E), from which I quote the following passages:

"[Counsel] for the plaintiffs said that prima facie an employer's duty required him to take reasonable steps to safeguard his employees from unnecessary risk of harm. ... Why, in this context, should psychiatric injury be treated differently from physical injury? He referred to Walker v Northumberland County Council ... where an employee recovered damages for a mental breakdown, held to have been foreseeably caused by the stress and pressure of his work as a social services officer. This, he said, showed that no distinction could be made.

I think, my Lords, that this argument really assumes what it needs to prove. The liability of an employer to his employees for negligence, either direct or vicarious, is not a separate tort with its own rules. It is an aspect of the general law of negligence. The relationship of employer and employee establishes the employee as a person to whom the employer owes a duty of care. But this tells one nothing about the circumstances in which he will be liable for a particular type of injury. For this one must look to the general law concerning the type of injury which has been suffered. ... There must be a reason why, if the employee would otherwise have been regarded as a secondary victim, the employment relationship should require him to be treated as a primary one. The employee in Walker v Northumberland County Council ... was in no sense a secondary victim. His mental breakdown was caused by the strain of doing the work which his employer had required him to do.

Should the employment relationship be a reason for allowing an employee to recover damages for psychiatric injury in circumstances in which he would otherwise be a secondary victim and not satisfy the Alcock control mechanisms?"

His Lordship went on, after further discussion, to answer that question in the negative.

[59]Recognising that Lord Hoffmann had referred to Walker without disapproval, Mr Jones made a number of observations. He accepted that the plaintiff in Walker was not a secondary victim in the sense in which that expression was used in Alcock and Frost, but he suggested that Lord Hoffmann cannot have regarded him as a primary victim in the sense in which that expression was used in Page, namely to denote someone who was foreseeably likely to suffer physical injury, but who in fact suffered only psychiatric injury. In Page it was held that where, because of the foreseeability of personal injury, a duty of care existed, and as a result of breach of that duty psychiatric injury but no physical injury was suffered, the wrongdoer would be liable for the psychiatric injury, even although it was not reasonably foreseeable. Mr Jones's other comment about Lord Hoffmann's treatment of Walker was that it was to be remembered that in Frost their Lordships were not considering the significance of the absence of a sudden assault on the nervous system in Walker.

[60]In my opinion the defenders' position on this issue is unsound. It seems to me that the common law duty of an employer to take reasonable care for his employee's safety and health, and to provide and maintain for him a safe system of working, ought to extend to include a duty to take reasonable care not to subject the employee to working conditions that are reasonably foreseeably likely to cause him psychiatric injury or illness. Walker is an instance of the acceptance of that view by the court, but it cannot be regarded as conclusive, because the issue of principle does not appear to have been argued, and the defence appears to have concentrated instead on foreseeability as a matter of fact in the circumstances of the case. The question which requires to be determined, as Lord Reed pointed out in Rorrison at 253B, is whether there is incumbent on the employer a duty to take reasonable care not to cause the employee reasonably foreseeable psychiatric harm. It is no doubt strictly correct, as Lord Steyn pointed out in Frost at 497F, that it is a non sequitur to say that, because an employer has a duty not to cause his employee physical injury, he should necessarily be held to have a duty not to cause him psychiatric injury. But the approach adopted by Colman J in Walker of proceeding from the general duty to take reasonable care to protect the employee from reasonably foreseeable risks, to the question whether there is any logical reason to exclude the risk of psychiatric injury from the scope of the duty does not, in my view, necessarily involve such a non sequitur. The non sequitur that Lord Steyn identified was to proceed from a narrower base, namely a duty not to cause physical injury, to the conclusion that there is also a duty not to cause psychiatric injury. If the starting point is instead the broad duty to avoid causing reasonably foreseeable harm generally, foreseeable psychiatric harm and foreseeable physical harm can be seen as two sub-categories of the general category of foreseeable harm, and in that event, it seems to me to be reasonable to ask if there is any logical reason for treating the sub-categories differently from each other (c.f. the approach of Lord Gill to the question whether psychological injury was included within the meaning of the term "damage" in section 1 of the Merchant Shipping (Oil Pollution) Act 1971 in Black v The Braer Corporation 1999 SLT 1401 at 1404D-E). The duties owed by an employer to his employee are examples of the duties which arise from the neighbourhood principle enunciated in Donoghue v Stevenson 1932 SC (HL) 32. As Lord Atkin said in Donoghue (at 44):

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."

I am therefore of opinion that Colman J was justified in approaching the matter in the way in which he did. There may, of course, exist a sound reason for treating the risk of psychiatric injury differently from the risk of physical injury. But unless there is such sound reason, it is in my view right in principle to treat the risk of psychiatric injury in the same way as the risk of physical injury.

[61]In Mr Jones's submission the reason for treating the risk of psychiatric injury differently from the risk of physical injury is that the law has determined authoritatively that the former is a special category that requires to be treated differently. According to his submission, it is settled law that a duty to take reasonable care to prevent psychiatric injury arises only in relation to such injury caused by a sudden assault on the nervous system. In considering that submission it is necessary, in my view, to note that the outdated (yet persistent) expression "nervous shock" is not synonymous with psychiatric injury. Nervous shock is a type of psychiatric injury, but it is not the only type. The passage quoted in paragraph [57] above from the opinion of Lord President Hope in Robertson v Forth Road Bridge Joint Board translating nervous shock as psychiatric injury cannot, in my view, be taken as support for the view that nervous shock is the only type of psychiatric injury from which an employer can have a duty in law to protect his employees. The passages quoted in the same paragraph from the speech of Lord Ackner in Alcock, if taken out of context, might be read as affirming as a general proposition that nervous shock is the only type of psychiatric injury that can give rise to a cause of action. But the context is in my view important. Alcock was a secondary victim case. As Lord Carloway has pointed out in Fraser v The State Hospitals Board for Scotland (11 July 2000, unreported, at paragraph [126]), it is clear from the examples given by Lord Ackner in the first of his numbered paragraphs that he was dealing with the secondary victim situation. It is not in my view sound to construe those dicta as laying down a rule that in the case of a claim by a primary victim the only type of psychiatric injury that can give rise to a cause of action is nervous shock. What is clear is that in the case of claims by secondary victims in respect of nervous shock the law has found the need for additional controls (see Alcock per Lord Ackner at 402 E-405H; Frost per Lord Griffiths at 462G and Lord Hoffmann at 502G-H), but, as Lord Hoffmann said in Frost (at 504F):

"The control mechanisms were plainly never intended to apply to all cases of psychiatric injury. They contemplate that the injury has been caused in consequence of death or injury suffered ... by someone else."

In my opinion, the authorities founded on by Mr Jones as supporting his submission that nervous shock is the only type of psychiatric injury that can give rise to a cause of action in negligence do not, when properly understood, do so.

[62]The main purpose of Mr Jones's references to Frost was to counter an anticipated argument that, if he was right that in general for psychiatric injury to be actionable it had to be the result of nervous shock, i.e. a sudden assault on the nervous system, that rule did not apply if there existed a relationship of employer and employee between the defenders and the pursuer. Since I have held that there is no rule that nervous shock is the only type of psychiatric harm in respect of which a duty of care can exist, that point does not arise. In my view the dicta quoted in paragraph [58] above show that the ratio of the decision in Frost is that the existence of the employment relationship between the wrongdoer and the secondary victim does not exclude the application of the Alcock controls in cases of the sort to which those controls apply. But the Alcock controls do not apply to a claim by a primary victim. It seems to me, notwithstanding Mr Jones comments on the point, that Lord Hoffmann's treatment of Walker in Frost indicates acceptance on his Lordship's part that an employer may come under a duty of care not to subject his employees to working conditions likely to cause them psychiatric injury (see also Leach per Brooke LJ at 1434D and Henry LJ at 1442D, and Alexander per Stuart-Smith LJ at 732, paragraphs 50-51). Page affirmed that a wrongdoer would be liable for psychiatric harm suffered by a victim to whom a duty of care was owed because it was reasonably foreseeable that he would suffer harm, irrespective of whether psychiatric harm in particular was reasonably foreseeable. It did not affirm, in my view, that psychiatric harm could be actionable only if suffered by a victim to whom physical harm was reasonably foreseeable.

[63]I am therefore of opinion that it cannot be said that liability in respect of psychiatric injury can arise only where that injury takes the form of nervous shock, i.e. a sudden assault on the nervous system. I therefore reject Mr Jones's submission to that effect. If that submission were sound, it would mean that an employer who knew without doubt that the working conditions in which he required an employee to operate were so stressful that it was objectively likely that, over time, the employee would succumb to psychiatric illness, and who nevertheless continued to subject his employee to those conditions despite growing signs that he was developing such psychiatric illness, would incur no liability for the loss and damage suffered by the employee as a result of developing the psychiatric illness. That would, in my opinion, be a quite unacceptable position for the law to adopt. There will often in such cases, as Colman J recognised in Walker, be difficult evidential issues as to foreseeability and causation, but that does not, in my view, affect the issue of principle.

[64]Since the hearing on evidence in this case, Lord Carloway has had occasion to consider a similar point in Fraser v The State Hospitals Board for Scotland. I note that his Lordship reached the same conclusion as I have done (see paragraphs [119] to [128]). I have not thought it necessary to put this case out for further hearing in light of Lord Carloway's decision because (i) that decision is not formally binding on me, (ii) I would have reached the same conclusion as I have done even if Lord Carloway's decision had not come to my attention, and (iii) the arguments put forward in that case do not seem to me to have raised new material not covered in the submissions that I heard.

  • The Standard of Care

[65]Assuming a duty to take reasonable care not to expose James Cross to the risk of psychiatric injury, Miss O'Brien made certain submissions relating to the standard of care required to fulfil that duty. The submissions were founded on the Framework Directive (89/391/EEC). I shall return in due course to the submissions that Miss O'Brien made by reference to the Framework Directive in connection with the case of breach of statutory duty set out in article 16 of the condescendence. For the present, I am dealing only with the reliance that she placed on the Framework Directive in the context of the case of common law negligence. The particular provision of the Directive on which Miss O'Brien founded in that connection was Article 7, which provides inter alia as follows:

"1. Without prejudice to the obligations referred to in Articles 5 and 6, the employer shall designate one or more workers to carry out activities related to the protection and prevention of occupational risks for the undertaking and/or establishment.

  • ...

3. If such protective and preventive measures cannot be organised for lack of competent personnel in the undertaking and/or establishment, the employer shall enlist competent external services or persons.

4. ...

  • In all cases:


  • the external services or persons consulted must have the necessary aptitudes and the necessary personal and professional means,


to deal with the organisation of protective and preventive measures, taking into account the size of the undertaking and/or establishment and/or the hazards to which the workers are exposed and their distribution throughout the entire undertaking and/or establishment."

As I understood her, Miss O'Brien argued that the existence of that provision made it necessary to interpret the employer's common law duty of care in light of it, and that so interpreted the duty came to be to do, not what a reasonably careful employer would do in the circumstances, but rather what a "competent person" would consider should be done in the circumstances. She recognised that the traditional view is that the question of what amounts to a safe system of work is a question of fact to be decided by the judge as if he were a jury (Qualcast (Wolverhampton) Limited v Haynes [1959] AC 743). As she put it, however, the effect of the Directive was that "the court's assessment of what would amount to a safe system of work would require to be based on the evidence of a competent person. In other words, if the reasonable employer's duty is to utilise the advice and experience of a competent person in terms of the [Directive], a jury's assessment of what amounts to a safe system can no longer be correct in law." That result, Miss O'Brien contended, flowed from the court's obligation to interpret national law in accordance with EC law (Von Colson v Land Nordrhein-Westfalen [1984] ECR 1891; Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I-4135; English v North Lanarkshire Council 1999 SCLR 310; Garland v British Rail Engineering Ltd [1983] 2 AC 751; Litster v Forth Dry Dock and Engineering Co Ltd 1989 SC (HL) 96; Pickstone v Freemans plc [1989] AC 66; Booker Aquaculture Ltd v Secretary of State for Scotland 2000 SC 9; Institute of Chartered Accountants v Commissioners of Customs and Excise [1999] 1 WLR 701). In Roy v Pearlman 1999 SC 459, Lord Hamilton recognised that that interpretative obligation applies to the common law as well as to statutes and statutory instruments when he said, in the context of the application of the Commercial Agents (Council Directive) Regulations 1993 and the Directive 86/653/EEC:

"Of course, it may be that a provision of domestic law is inconsistent with a relevant directive as properly interpreted. If that is so, the domestic rule will require to yield."

[66]In my opinion, in this branch of her submissions, Miss O'Brien sought to build too much on the reference in the Directive to a "competent person". I accept at once that domestic legislation requires to be interpreted in accordance with any relevant directive. I accept, too, that a rule of the common law may require to yield to a relevant directive, where there is inconsistency between them. But I am not persuaded that there is any such inconsistency between the provisions of the Framework Directive on which Miss O'Brien founded and the common law of negligence, and in particular the standard of care incumbent on an employer in implementing his common law duty to take reasonable care to provide for his employee a safe system of working. The co-existence of a common law duty and a statutory duty imposing different standards of care on the employer in a given situation (the statutory duty usually being the more stringent) is a familiar phenomenon. It has never been the case that the enactment of legislation imposing on the employer a higher standard of care impliedly alters the common law standard of care. I see no reason for reaching a different result when the legislation is intended to implement a directive. Questions may arise as to the interpretation of the legislation in accordance with the directive, and as to the direct effect of the directive, if not properly implemented; but I do not consider that a pre-existing and co-existing common law duty setting a lower standard than the directive contemplates must itself be interpreted as if it were the vehicle for implementation of the directive. The less stringent common law rule constitutes no obstacle to the proper implementation of the directive. I am therefore of opinion that notwithstanding the Framework Directive, the common law duty of care incumbent on employers remains the duty to take such care as a reasonable employer would take in the circumstances. What that duty requires of the employer in particular circumstances remains a jury question to be determined on the evidence. The evidence may show that in particular circumstances a reasonable employer would take skilled advice to guide him in deciding what he should do. But I do not consider that there is any basis for the submission that the common law duty must, in light of the Framework Directive, be recast to substitute the "competent person" in place of the reasonable employer as the person by whose standards of care the actual employer is to be judged.

  • The Foreseeability of Injury

[67]There are in my view a number of separate but related points that require to be considered, and that can conveniently be brought together under the heading of the foreseeability of injury.

[68]In the first place, as Miss O'Brien pointed out, the employer's duty of care is owed to each employee as an individual, and he must therefore take into account any particular susceptibility of the employee of which he is or ought to be aware (Paris v Stepney Borough Council [1951] AC 367 at 376; Porteous v National Coal Board 1967 SLT 117). In judging whether harm to the employee is within the reasonable foresight of the employer, therefore, it is necessary to bear in mind as a factor affecting what is reasonably foreseeable the actual knowledge of the employer of any special susceptibility to harm possessed by the employee, and any such susceptibility of which the employer (if not actually aware) ought reasonably to have been aware. It is therefore necessary to consider what knowledge HIE had, or ought reasonably to have had, that James Cross was specially susceptible to psychological harm during the material period.

[69]In the second place, it seems to me that in this case the relevant question is whether it was reasonably foreseeable to HIE that James Cross was likely to suffer psychiatric injury if he were to return to work and be exposed to certain working conditions. Page v Smith can be seen as authority for the proposition that if physical injury is reasonably foreseeable as a consequence of the wrongdoer's acts or omissions, but psychiatric injury alone in fact results, liability for the latter sort of injury will be established. I do not, however, consider that this case properly falls into that special category. Although there was some evidence (which I accept) that stress may cause physical as well as, or instead of, psychiatric illness, I do not consider that the evidence establishes any stronger likelihood of physical injury than of psychological harm. It seems to me that in so far as the defenders' attention was or ought to have been directed to the possibility that James Cross would suffer harm, the nature of the harm that was in view was psychiatric rather than physical. I therefore do not consider that in practical terms it is necessary in this case to address the foreseeability of physical harm as a route to establishing liability for psychiatric harm actually suffered.

[70]As I have already recorded, Miss O'Brien emphasised that it was not the pursuers' case that the defenders ought reasonably to have foreseen, before James Cross went off work in April 1993, that he was likely to develop a depressive illness. The case which the pursuers seek to make is that it was the knowledge that the defenders obtained at and after that stage that gave rise to a duty of care. According to Miss O'Brien's submissions what was required to give rise to a duty of care on the defenders' part was evidence that they knew (a) that James Cross was suffering from "some kind of stress illness" which required treatment, although it was not necessary that their knowledge be any more precise than that, and (b) that there was a link between that illness and "some kind of problem at work". Such knowledge, it was submitted, gave rise to a duty of care (i) to "evaluate what was wrong at work" and (ii) to organise and enforce a safe system of work when James Cross returned from sick leave. Fulfilment of that duty required "a full risk assessment". Given their knowledge that James Cross had suffered one stress illness, they ought to have foreseen that he was at risk of suffering further injury "if exposed to the same conduct by the employers, or to the same circumstances".

[71]It is, in my view, necessary to examine with some care what it was that the defenders knew about James Cross's illness and its causation. The earliest date at which the evidence showed actual knowledge on the part of the defenders was, according to the evidence of Donald MacAulay (see paragraph [12] above), the Monday of the third week in April 1993, which I take to mean 19 April. On that date, according to Donald MacAulay, James Cross said (i) that he was having problems with his workload, (ii) that he felt isolated from the main office and (iii) that he was having difficulty prioritising his workload. It is clear that Donald MacAulay perceived there to be a medical aspect to the problem, because his evidence was that he advised James Cross to see his doctor. At that stage he felt that there was more to the problem than difficulties at work, because as he saw the matter there had been no change in workload. He also said that he had not noticed a deterioration in James Cross's work. Following James Cross's attendance on Dr Powell on 26 April, HIE received her certificate to the effect that he was unfit for work on account of "stress". That did not, in my view, constitute an unequivocal diagnosis of psychiatric illness. Stress may cause psychiatric illness, but it is not itself an illness. It would not, however, in my view be appropriate to take too technical a view of the inadequacy of the terms in which Dr Powell's diagnosis was expressed in the medical certificate, since it is clear from the evidence of Ray Owens that he became aware that James Cross was under medical treatment, that the condition was being attributed by the doctor to stress, and that James Cross was attributing the stress to conditions at work. Ray Owens' evidence was that the focus of James Cross's complaint about his work was that he did not get enough time face to face with Donald Macaulay. I find it proved that HIE (and WIE) became aware, while James Cross was off work, (a) that he was ill, (b) that broadly the nature of the illness was psychiatric rather than physical, (c) that James Cross himself was complaining of aspects of his conditions of work that might be understood to be stressful, and (d) that Dr Powell was accepting the attribution of the illness to "stress". I also find it proved that Ray Owens and Donald MacAulay understood from the combination of those factors that it was thought, at least by James Cross and probably also by Dr Powell, that the illness was attributable to stress at work. That seems to me to be as far as the defenders' knowledge can be said to have gone. It is in my view important to note additionally (i) that the defenders had no clear information identifying the nature of James Cross's illness - in particular, they had no information identifying the illness as depression; (ii) that they had no clear information about the severity of the condition, beyond such inferences as they might have drawn from the fact that it had been bad enough to keep him off work for two months; and (iii) that by the time he returned to work, he had been certified by Dr Powell as fit to do so. So far as the last of these factors is concerned, it is to be noted that, whatever reservations Dr Powell may have had about the completeness of James Cross's recovery, her certificate that he was fit to return to work was not in any way qualified or conditional, and no representation was made to the defenders that he was fit only for modified duties or a reduced workload. On the other hand, I do not consider that it is appropriate to rely solely on a "snap-shot" of the defenders' knowledge of James Cross's condition taken at a particular date. Their knowledge was at one level when he went off work, was supplemented while he was off work, and continued to be supplemented after he returned to work. In that way, the impression created by Dr Powell's certificate that he was fit to return to work was no doubt to some extent revised in light of what emerged, for example, from the interview between Donald MacAulay and James Cross on the day he returned to work. It seems reasonably clear that Donald Macaulay quickly appreciated that James Cross was not in fact fully recovered.

[72]Miss O'Brien sought to bring together the particular knowledge possessed by the defenders about the nature of James Cross's difficulties with their general knowledge that stress at work could injury the health of the employee and, on the basis of the combination of those elements of knowledge, infer a duty to take certain steps. On the basis of the evidence of Ray Owens, Penelope Gray and Ian Robertson, the Chief Executive of HIE, I am prepared to accept that at the material date the defenders did have a certain level of general knowledge of the existence of the phenomenon of stress at work, and of the fact that such stress could harm the health, including the mental health of employees. I am also prepared to hold that the defenders were aware, in a general way, that if a person who had been made ill by stress at work returned to the same stressful working conditions, there was a likelihood of his illness being made worse or reactivated. I also accept, from the evidence of Dr Bushnell, Professor Firth Cozens and Mrs McAlinden, that, if the defenders had not in fact had that level of general knowledge at the material date, they ought as reasonable employers to have had it. In light of the view I have taken on their actual knowledge, however, I do not consider that it is necessary to go into more detail about the basis on which a reasonable employer ought at that stage to have had such knowledge.

(d) The Duty to Make an Assessment of Risks

[73]Miss O'Brien's submission was that, knowing in general what they did about the possible harmful effects of stress at work generally, and knowing in particular what they did about the fact that James Cross had been ill and that an attribution of that illness to stress at work had been made, HIE as his employers came under a duty to make an assessment of the risks to which he was exposed at work. In that connection, Miss O'Brien relied upon regulation 3 of the Management of Health and Safety at Work Regulations 1992 ("the 1992 Regulations"), and on the relative approved code of practice ("ACoP") (No. 58 of process). Regulation 3 provides inter alia as follows:


Every employer shall make a suitable and sufficient assessment of -


the risks to the health and safety of his employees to which they are exposed whilst they are at work; and


the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.



Any assessment such as is referred to in paragraph (1) ... shall be reviewed by the employer ... who made it if -


there is reason to suspect that it is no longer valid; or


there has been a significant change in the matters to which it relates;

and where as a result of any such review changes to an assessment are required, the employer ... concerned shall make them."

The ACoP was made under section 16(1) of the Health and Safety at Work etc. Act 1974 ("the 1974 Act"). Section 17 of the 1974 Act provides for approved codes of practice to have certain evidential effect in criminal proceedings, but there is, as Miss O'Brien pointed out, no provision conferring on them any particular status in civil proceedings.

[74]Nevertheless Miss O'Brien submitted that, as a matter of common law, given the knowledge discussed in paragraphs [71] and [72] above, the defenders were under a duty to carry out a risk assessment in relation to the impact of his working conditions on James Cross's mental health, in accordance with the guidance given in the ACoP. Her primary submission was that that duty was independent of whether there existed in 1993 any practice on the part of employers of carrying out risk assessments in connection with the risk of psychiatric harm caused to employees by the ordinary conditions of their work. Evidence of actual practice was irrelevant. Her secondary argument, however, was that on the evidence it was in 1993 in accordance with good practice to carry out such assessments. The primary argument depended, as I understood it, upon the proposition that, since regulation 3 reflects a requirement of the Framework Directive, the effect of application of the interpretative obligation to the common law in light of the directive is that the reasonable employee must do what the directive requires, and cannot rely on any less stringent standard of behaviour countenanced by general practice. I shall require to deal in more detail with the question of whether the Framework Directive did indeed contemplate risk assessment in the context of psychiatric harm, when I come to deal with the submissions in relation to the pursuers' statutory case. For the reasons which I shall give in that context (see paragraphs [99] to [102] below), I am not persuaded that the Framework Directive did require employers to assess the risk of psychiatric harm to employees caused by stress arising from the ordinary conditions of their work. It follows, in my view, that the primary basis for Miss O'Brien's submission that the common law required the defenders to carry out a full scale risk assessment in relation to James Cross on or prior to his return to work, irrespective of the evidence of practice, is not well founded.

[75]In my opinion, moreover, the evidence does not support the alternative basis for the submission. The effect of the evidence of practice in my view is that it is not established that as at 1993 the reasonable employer would carry out a risk assessment in relation to the risk of psychiatric harm, either in general or in the particular context of an employee returning to work after illness. Professor Gray made reference in his report to the ACoP (No. 44/3 of process, paragraphs 4.7 and 4.8), but evidently only because it was drawn to his attention by the pursuers' solicitors. It does not seem to me that his evidence amounted to a positive affirmation based on practical experience that in 1993 employers were as a matter of practice undertaking risk assessments in relation to the effects of stress at work on the mental health of employees. Dr Bushnell also gave evidence that the risk assessment provisions of the ACoP represented proper practice in 1993, but when pressed in cross examination to give examples from his own experience of employers at that stage applying those provisions to the effects of stress on mental health, he gave no evidence that impressed me as satisfactory. I found the most satisfactory evidence of practice in 1993 to be that given by Mrs McAlinden. She is a specialist employment lawyer employed by Scottish and Newcastle Breweries plc, who is also currently the Chairperson of the Institute of Personnel and Development in Scotland. That body was formed by the merger of the Institute of Personnel Management and the Institute of Training and Development. Mrs McAlinden has been involved in co-ordination of safety and health policies for her present and former employers continuously since the late 1970s. She accepted that in 1993 the ACoP was known to and heeded by careful employers, and could be regarded as evidence of the recommended and proper practice. Her evidence was, however, that as at that date the 1992 Regulations and the ACoP were understood to relate to physical health and safety. It was not then the practice for employers to carry out risk assessments in relation to employees' mental health. I find further support for that view in HES Contract Research Report No. 61/1993, "Stress Research and Stress Management: Putting Theory to Work" by Tom Cox ("the Cox Report", No. 41/1 of process). In particular, I note the following passages:

  • "Further research and development is required to translate ... information [identifying psychosocial hazards which pose a threat to employees] into a form which can be used in auditing and analysis of workplaces and organisations" (page 51, paragraph 3.5);
  • "... only a minority of organisations appear to be directly and deliberately addressing the management of occupational stress" (page 63, paragraph 5.1);
  • "In summary, it must be concluded that the jury is still out on stress management training: ... Stressor reduction/hazard control is, for several reasons the most promising area for interventions, although again, there is not yet sufficient information to be confident about the nature and extend of their effectiveness" (page 73, paragraph 5.4);
  • "In particular, there is a lack of an adequate framework for good practice in addressing stress-related problems in the workplace" (page 75, paragraph 6.0);
  • "The formulation of policy at both national and organisational level is an important early step in developing stress management interventions" (page 79, paragraph 6.2);
  • "It is argued that the framework that has been made explicit in the Management of Health & Safety at Work Regulations 1992 ... can be extended from the more tangible hazards of work to encompass psychosocial hazards, stress and stress management" (page 87, paragraph 6.8);
  • "The first conclusion must be that knowledge is not yet sufficient to support comprehensive and detailed legislative controls. ... It should now be possible to formulate general principles for stress management and related hazard control ... Policies could usefully focus on [inter alia] ... the provision of guidance on good practice in the process of intervention, and reasonably practicable intervention strategies ..." (pages 89-90, paragraph 7.0).

Miss O'Brien objected to any reliance being placed on the Cox Report, on the basis that it had not been properly spoken to in evidence. It was, however, put to Dr Bushnell, who identified it as part of the relevant research literature, and that seems to me to be a sufficient evidential basis for reference to it as a record of a view current at its date (1993). In the result, therefore, I am of opinion that the proper conclusion on the evidence is that in 1993 the 1992 Regulations and the ACoP were not generally perceived by employers to bear upon the risk of psychiatric injury caused by stress in the workplace, and it was not normal practice for that risk to be made the subject of formal assessment. It seems to me that the evidence further shows that the difficulties inherent in applying such assessment to risks of that nature became the subject of growing discussion over the period since 1993. I express no view as to what the proper practice now is, because that is not the issue before me, and I did not hear evidence directly addressing that question.

[76]If I had held that there was a duty on the defenders in June 1993 to embark on a risk assessment, it would then have been necessary to consider what such assessment would have involved, to see what conclusions would probably have been reached and what consequential measures instituted. In light of the conclusions which I have reached in paragraphs [74] and [75] above, that point does not arise. I should say, however, that the evidence left me with very little understanding of the practicalities of how a risk assessment would have been carried out. Given that it would have had to focus specifically on James Cross and his individual job, I find it difficult to understand how a worthwhile risk assessment could have been conducted without involving him actively in it. An outside consultant as a "competent person" would, it seems to me, have been unable to examine the situation in any conclusive way in the abstract. The evidence did not address how James Cross's mental health would have been affected by a risk assessment in which he was expected to be personally involved. Nor did the evidence address precisely when such an assessment should have been instituted, what time it would have taken to carry it out, and what time-scale would have been involved in putting the resulting recommendations into effect.

[77]On the basis that on the return of a "vulnerable" employee to work it was good practice in 1993 "to carry out a personal risk assessment ... to identify hazards in the job and then to assess the risk that the hazards posed for the vulnerable employee", Miss O'Brien submitted that there should have been a systematic and structured risk assessment, involving "examination of the nature of the work, its structure, the way it was organised, and projections for the job over the next six months or more"; it should have "[determined] the individual's vulnerability, and [taken] into account his needs within the job and his complaints about it". Miss O'Brien further submitted that on the return of a vulnerable employee when the employer "knew that the job posed a risk to his mental health", it was in 1993 good practice to refer him to an occupational health specialist, to assess the extent to which his job posed a risk to his mental health by referring him to a clinical psychologist or psychiatrist, and to maintain medical and psychological surveillance. Having regard to (i) my findings in fact as to the limited extent to which the defenders were made aware of the nature and severity of James Cross's illness and the extent to which his health remained vulnerable, (ii) my findings that although James Cross, to the defenders' knowledge, attributed his illness to certain aspects of his work, there was no clear evidence before them that the job was objectively likely to be harmful to his mental health, and (iii) the conclusions which I have reached as to the view taken in 1993 of the ACoP and the absence of any general practice of carrying out risk assessment in relation to the impact of stress at work, I do not consider that those submissions are well founded.

[78]Miss O'Brien further submitted that a risk assessment carried out by a competent person in 1993 would have identified problems inherent in the job of senior training manager. In particular, she submitted, the problems that would have been identified included the isolation of the post away from the main Stornoway office, the lack of administrative support, the travel component, the shortage of staff, the difficulty of formulating policy within the constraints of government guidelines, the need to redistribute training work and reformulate government guidelines, the need for training, for a development plan and for a mentor, and the need for medical surveillance. She therefore submitted that a reasonable employer would have permanently redrawn the post of senior training manager; either relocated it to Stornoway or relocated the assistant post to Balivanich; increased the training and support staff; provided a personal development plan, training, a mentor and improved line management support; and put in place medical surveillance. Even if I had held that a risk assessment ought to have been carried out, I would not have been satisfied that the evidence shows that such an assessment would have had the results that Miss O'Brien submitted. As I have recorded in paragraph [34] above, I am not persuaded that it has been proved by the evidence led before me that, objectively, the job was such as to subject James Cross to such stress as to be likely to cause him psychological harm. I am not able to conclude that, if a risk assessment had been carried out at the time, it would have reached a different conclusion, and that the problems which Miss O'Brien submitted existed would have been found to be present.

[79]It does not in my view follow from the conclusions which I have reached on these matters that the reasonably careful employer possessed of such knowledge as I have found (in paragraphs [71] and [72] above) that the defenders did have in June 1993 would have done nothing by way of obtaining clarification of the nature of the problem. The pursuers' pleadings in my view pitch the matter too high when they say that it was HIE's duty to "investigate the pressures at work that had driven the deceased to breaking point". It does not seem to me that the defenders had been made aware that James Cross was at "breaking point". What they knew was that he had been ill enough to be off work for two months, but that, according to his doctor, he was at the end of that period well enough to return to work. I do not consider that it was the defenders' duty to go looking for difficulties in his working conditions that were not identified to them at the time as having a bearing on his illness. What they as reasonable employers in my view required to do was to find out what James Cross perceived to be the pressures at work that had precipitated his illness, and to apply their mind to those factors and to what might be done to improve the situation.

(e) The Duty to Take Various Protective Measures

[80]I turn now to consider the various specific duties alleged to have been incumbent on the defenders to take measures to protect James Cross from renewed exposure to the working conditions that were perceived by him to have contributed to his illness. At this stage I propose to examine in relation to each averred duty, first, whether I hold that that duty was in the circumstances incumbent on the defenders, and secondly, whether on the evidence I hold that the defenders failed to fulfil the duty. I shall leave aside for later discussion the question of whether any breach of duty can be regarded as causally connected with James Cross's death.

[81]In article 15 of the condescendence the pursuers set out a large number of specific duties that they assert were incumbent on the defenders. They may be summarised (eliminating some repetition) as follows:

  • a duty to refrain from exposing the deceased to the same workload as he had been handling before he fell ill;
  • a duty "otherwise" to reduce his exposure to sources of stress at work;
  • a duty to train him to carry out his duties, and in particular to train him to formulate strategic planning and to write papers thereon;
  • a duty to plan, organise and manage the workload to be carried by him after his return to work;
  • a duty to evaluate his susceptibility to stress after his return to work;
  • a duty to organise the availability of a mentor;
  • a duty (arising after the incident involving Donald McDonald mentioned in paragraph [17] above) to encourage the deceased to attend an appropriately qualified psychiatrist or psychologist;
  • a duty to provide him with support from a person in a higher grade;
  • a duty to reduce or reallocate his responsibility for training budgets;
  • a duty to relieve him of the task of formulating strategy and writing reports thereon;
  • a duty to provide the deceased with an assistant in Benbecula, or otherwise continuous and effective back-up until he had recovered;
  • a duty to provide him with a secretary;
  • a duty to excuse his attendance at Board meetings in Stornoway;
  • a duty to refrain from criticising him at Board meetings to the detriment of his self confidence;
  • a duty on the part of the Chief Executive to support him when his papers, passed by the Chief Executive, were criticised by Board members.

I leave aside, as no longer relevant in view of my conclusions in paragraphs [74] and [75] above, the averred duties to record the significant findings of a risk assessment, to advise the deceased of the risks identified and of the preventive and protective measures adopted, and to communicate that information to him before his return to work. I also defer until later (see paragraphs [93] to [95] below) discussion of the averred duties in connection with the referral to Lesley Jones.

[82]I accept that in light of their awareness that James Cross attributed his illness to certain aspects of his workload, the defenders came under a duty to moderate the workload which he had to undertake on his return to work, at least for an introductory period until it was clear whether or not he was able to cope. That was in my view so despite the fact that he had been certified by Dr Powell as fit to return to work. If it had been proved, as the pursuers averred, that on his return his workload had remained "substantially the same", and that "most of the backlog of his work was handed back to him", I would have held that the defenders had failed to exercise reasonable care for James Cross's mental health. I find, however, that those averments have not been proved. In the end, Miss O'Brien did not maintain that a backlog of work had been allowed to accumulate during James Cross's absence, or that it was simply handed back to him to deal with on his return. The defenders led a body of evidence designed to show how work that would ordinarily have been done by James Cross was done by others during the period when he was absent from work. That evidence was not seriously challenged. It seems to me to be obvious that if the work of WIE was to be carried on in an orderly fashion, it simply could not be left to pile up during the two months when James Cross was absent. The evidence that was led about the reallocation of work was to my mind clearly in accordance with practical commercial necessity. There was therefore no question of James Cross being faced with a backlog of undone work when he returned to his duties at the end of June.

[83]Leaving aside the suggestion that James Cross was expected to deal with a backlog of work that had built up in his absence, Miss O'Brien nevertheless submitted that the proper conclusion on the evidence was that nothing was done by the defenders to relieve him of his previous workload when he returned to duty at the end of June. There was no formal re-allocation of duties. There was an absence of documentary evidence to support the conclusion that his workload was lightened. There was nothing, she submitted, to show who else was carrying out the work that he would otherwise have done. She contrasted that state of affairs with the detailed evidence about the handling of his work during his absence. James Cross's immediate subordinate, Gerry McGuigan, was not led as a witness, although he would obviously have been well-placed to explain who carried the burden of the work of the training department in the period in question. The evidence of Donald McDonald was that there was no change in James Cross's workload. There was hearsay evidence that James Cross felt that he was "back at square one". He attended the July and August Board meetings. The evidence of change in James Cross's workload therefore came wholly from Donald MacAulay, and that evidence should not be accepted.

[84]There was ample evidence from a number of sources that on the day James Cross returned to work, Donald MacAulay travelled to Balivanich and spent virtually the whole day with him. By Donald MacAulay's account, the discussion that they had was wide-ranging, and covered inter alia James Cross's views as to his future. He wanted to return to full time work, but not in the long term in the senior position that he then occupied. The possibility of his developing a career outside WIE was also touched upon. My impression is that these were topics of discussion raised by James Cross, and that it would be putting a misleading colour on the discussion to regard it as involving a suggestion of demotion or resignation put to James Cross by Donald MacAulay. It does seem to me, however, that that discussion must have alerted Donald MacAulay to the fact that, despite being certified as fit to return to work, James Cross was by no means back to normal. Be that as it may, Donald MacAulay said that he allocated work to James Cross of a more operational or procedural nature, rather than work of the sort that called for investigation and the preparation of reports. He said that he suggested that James Cross keep a list of his portfolio of work, updated from time to time, and that they should discuss it regularly. Thereafter, they did remain in contact, normally by telephone, and discussed the work that James Cross had outstanding. Donald MacAulay denied the suggestion put to him that James Cross's work and workload remained essentially the same as they had been before. He said that the nature of the workload was different, and that he did not pass back to James Cross on his return budgetary responsibilities and responsibility for the preparation and presentation of reports on training matters to the Board. It was in any event, he said, a relatively quiet time of year when the level of such activity was not normally high.

[85]I see no good reason to reject Donald MacAulay's evidence about the lightening of James Cross's workload. It is, perhaps, unfortunate that this aspect of the matter was not as clearly documented as the reallocation of James Cross's work while he was absent, and it would, no doubt, have been useful to have the evidence of Gerry McGuigan. I do not consider, however, that I can safely put very much weight on James Cross's own perception that he was "back to square one", or that the situation was as bad as ever, as meaning that his workload was not lightened. Donald McDonald's evidence must also, in my view, be assessed in the context that he did not see James Cross during the period in question, and spoke to him on the telephone only twice. In any event, I did not understand him to suggest that James Cross retained the whole of his previous workload. He said that he dealt with the "day to day stuff", but that Gerry McGuigan stood in for him in presenting material to board meetings and matters for decision would go to Donald MacAulay. It is no doubt right that, as Miss O'Brien submitted, Donald MacAulay was very busy with his own duties, did not come from a training background, and was on holiday for the last two to three weeks of James Cross's life. I do not consider, however, that there is any good reason for rejecting his evidence that the burden of work on James Cross after he returned to duty on 28 June was substantially lightened.

[86]Miss O'Brien criticised these as "temporary, stop-gap measures", and pointed to the fact that no attempt was made to redefine the job as a significant failure on the part of the defenders. I am not persuaded that these criticisms are well founded. If it had been established that the job, viewed objectively, constituted an unmanageable burden for anyone, and that the defenders were or ought to have been aware of that, complete reappraisal of the job would no doubt have been required. But in my view, when all that the defenders knew was that James Cross had been ill and had attributed his illness to stress at work, it cannot be said that it was unreasonable of the defenders to address the matter in the first instance by lightening his workload on an ad hoc and temporary basis when he returned to work. Miss O'Brien criticised the defenders for acting in a way that would leave James Cross with the impression that he, rather than the job, constituted the problem. In my opinion, however, the evidence does not establish that objectively the job was the problem. For all the defenders knew, they were dealing with an employee who, for reasons that were not clear, had become unable to cope with a job that he had previously managed successfully. In that context, it seems to me that it cannot be said that the measures which I accept Donald MacAulay took to lighten the workload that James Cross returned to fell short of what a reasonably careful employer would have done in that regard. So far as the averred duty to "plan, organise and manage" the workload is concerned (point (iv) in paragraph [80] above), I am of opinion that the arrangements spoken to by Donald MacAulay for maintenance and review of a list of tasks in discussion between him and James Cross adequately addressed that matter. The arrangements made also, in my view, adequately addressed all that required to be done, given the defenders' limited knowledge of what had caused the illness, under points (ix) and (x).

[87]I do not consider that in the circumstances the defenders came under a duty to afford James Cross further training in the context of his return to work (point (iii)). There was at the time no attribution of his difficulties to lack of training. Even if it could be said on the strength of the reference to training in the Appraising Manager's Pre-Discussion Document (No. 24/1 of process, page 88) prepared by Donald MacAulay that James Cross would have benefited from further training, it does not seem to me that it can be said that the defenders were negligent in not putting arrangements for such training in place in the period immediately following his return to work, particularly in light of the restricted scope of the work he was then undertaking.

[88]I do not consider that in the circumstances the defenders came under a duty to organise the availability of a mentor (point (vi)), if by that term is meant a person from outwith the defenders' own organisation. The evidence did not in my view address what seem to me to be real practical difficulties about making such an arrangement. To function effectively, a mentor would, it seems to me, require to have a considerable degree of familiarity with the work of the defenders, and in particular that aspect of the work with which James Cross was concerned. No concrete evidence was given of where such a mentor might be found. There is less difficulty with the suggestion that James Cross should have been provided with the support of a person in a higher grade (point (viii)). In practical terms, that meant Donald MacAulay, and in my view the arrangements that he spoke to making on James Cross's return to work involved the provision by him of an appropriately flexible level of support.

[89]I do not consider that the evidence supports the conclusion that the defenders were under a duty to provide James Cross with an assistant in Benbecula (point (xi)). Although I accept that it was known to the defenders that one aspect of the work that James Cross had identified as stressful was isolation from the main office in Stornoway, I do not consider that it follows from that that the appropriate solution in organisational terms was the transfer of additional operational personnel to Balivanich. The alternative contemplated in point (xi) - "continuous and affective backup until he had recovered" - seems to me to be what the ad hoc reallocation of duties to Donald MacAulay and Gerry McGuigan was intended to achieve and could reasonably have been expected to achieve. I do not consider that it has been established that the defenders came under a duty to provide James Cross with a secretary (point (xii)). As I have already indicated, I regard the criticism of the level of administrative and secretarial support available in Balivanich as misguided, and moreover, there was no suggestion made to the defenders at the material time that the level of such support was anything to do with the difficulties that James Cross had experienced with his work.

[90]Since I have held that the evidence does not establish either that James Cross was before his illness subjected to inordinate and demoralising criticism at Board meetings, or that Donald MacAulay failed to support him on such occasions, points (xiv) and (xv) do not in my view arise. In any event, there is no acceptable evidence that he was criticised, or that the chief executive failed to support him, at any Board meeting after his return. There is no evidence in my view to support a duty to excuse his attendance at Board meetings in Stornoway (point (xiii)). There was evidence that he missed Joanne's birthday through being in Stornoway, but there was no suggestion that the defenders insisted on his attendance there in face of a request by him to be excused. Although the evidence (which I accept) was that he had no papers to present to the July and August Board meetings, I do not consider that there is any basis for concluding that a reasonable employer would not have had him attend them.

[91]There remains for consideration the averred duty to "evaluate his susceptibility to stress" after his return to work (point (v)). I have already expressed the view that the defenders did not come under a duty to go out in search of possible causes of stress, but were obliged to address those matters that were identified to them as felt by James Cross to be a source of stress. In the circumstances, I do not consider that in this respect the defenders have been proved to have failed to do anything that they ought reasonably to have done. I do not consider that the defenders came under a duty to encourage James Cross to seek psychiatric or psychological help (point (vii)). It was in my view reasonable for the defenders, given the level of knowledge that I have held that they possessed, to leave the matter of the identification of appropriate treatment to his primary medical adviser, Dr Powell. Although on one view the incident involving Donald McDonald might have been regarded as raising a fresh doubt about James Cross's mental state, I am of opinion, bearing in mind the evidence of Donald MacAulay as well as that of Donald McDonald, that the evidence of the latter may well have been coloured by hindsight. I do not consider that there was sufficient in that incident alone to give rise to a duty to intervene to encourage psychiatric referral.

[92]Although it is also averred that the defenders had a duty "otherwise to reduce [James Cross's] exposure to stress" (point (ii)), I am of opinion that in light of the level of knowledge that the defenders had they did not come under a duty to take any specific steps not already considered in the course of the last ten paragraphs.

(f) The Duty in Relation to the Reference to Lesley Jones

[93]James Cross was put in touch with Lesley Jones by Ray Owens in mid-June 1993 (see paragraphs [15] and [16] above). The pursuers allege that in making that reference the defenders were negligent. They aver:

"[HIE] knew or ought to have known that a vulnerable person such as the deceased would be at risk of considering that he could not be helped after attending a 'specialist counsellor' who had no relevant training with which to assist him";


"[It] was their duty to take reasonable care to refer the deceased to a true specialist, when advising him to seek personal stress counselling from a particular expert in that field. It was their duty to take reasonable care to ascertain the qualifications and expertise of the person offering such services, and to make enquiries to satisfy themselves that such a counsellor at least had a relevant qualification in psychology or psychiatry".

Although the point is not very clearly focused in those averments, the submission as I understood it was that the defenders (i) ought to have known that James Cross was suffering from a psychiatric illness, (ii) ought (if they had made proper inquiries) to have known that Lesley Jones was not qualified to deal with someone suffering from a psychiatric illness, (iii) ought to have foreseen that because of her lack of qualifications nothing constructive would be achieved by the consultation, (iv) ought, moreover, to have foreseen that James Cross would perceive that a supposed expert had been unable to help him, and would be adversely affected in his psychiatric health by that perception; and (v) were accordingly negligent in making the reference. At all events, the question is whether the defenders were negligent in referring James Cross to Lesley Jones, and not whether she was negligent in how she dealt with him or in failing to procure that he was referred to a psychiatrist or psychologist.

[94]It is in my view clear that Lesley Jones had no qualification in psychology or psychiatry. She made no such claim. She was not qualified to diagnose or treat a person suffering from any form of mental illness. What she did claim to have was some practical experience in advising on means of coping with stressful working conditions - stress management. She organised and presented courses on that and related subjects. She also offered her services in discussing such matters on an individual basis. It is difficult to address satisfactorily the question of whether she was adequately qualified or experienced to do so. The activity of stress counselling does not appear, at least on the basis of the evidence that I heard, to be particularly well or clearly regulated. Professor Gray expressed the view that the minimum qualification was membership of the British Association of Counsellors, but while I do not doubt that that may be a sound view, I hesitate to conclude that, as matters were then regulated, it was not open to someone without that qualification to hold himself out as able to offer stress counselling. That being so, the absence of a formal qualification may be an inadequate basis for an inference of lack of competence. It seems to me that much turns on what precisely the individual practitioner offers to do. A person may be competent to advise a healthy person on techniques for minimising stress or coping with stressful conditions at work, but not competent to diagnose or treat mental illness resulting from stress at work. The person competent to do the former but not competent to do the latter may be in difficulty in identifying when the client falls into the latter category. Lesley Jones did not impress me as being particularly alive to the existence of that potentially delicate borderline. She appears not to have made routine inquiry of her clients as to whether they were receiving medical treatment, but on the other hand to have made as a matter of routine the suggestion that James Cross should consider seeing his doctor. She does not appear to have been conscious of the potential for adverse reaction to her stress management techniques on the part of a client already suffering from psychiatric illness.

[95]Reverting to the analysis of the submission set out at the end of paragraph [93] above, it seems to me in the first place that the defenders, while aware that James Cross was ill and attributed his illness to stress at work, had no real information about the nature of the illness or its severity. They referred James Cross to Lesley Jones, not for treatment for his illness, but for help in coping with the aspects of his work that he felt were stressful. They understood, from the work that she had done for them before, that she had skills and experience relevant to providing that sort of help. The courses she had organised had been perceived as satisfactory. They did not have in mind that she would be offering treatment for psychiatric illness, and therefore in my view had no reason to investigate whether she was qualified to do that. I do not consider that the evidence justifies the conclusion that the defenders ought to have foreseen that she would not be able to help the pursuer to deal with what he found stressful in his work, still less that her intervention would be liable to be positively harmful. Although there was some evidence that, with the benefit of hindsight, the inference might be drawn that Lesley Jones's intervention had an adverse effect on James Cross's mental state, I doubt whether there was sufficient to make that inference a probable rather than a possible one. Be that as it may, I do not consider that the evidence justifies the conclusion that as a matter of reasonable foresight the defenders should have anticipated the likelihood of adverse consequences. In these circumstances I do not consider that it has been proved that in referring James Cross to Lesley Jones the defenders failed in their duty of care towards him.

(g) Conclusion on Common Law Fault

[96] For the reasons discussed in paragraphs [53] to [95] above, I conclude that, although HIE as James Cross's employers were under a duty to take reasonable care not to expose him to working conditions which were reasonably foreseeably likely to subject him to such stress as to be likely to cause him psychiatric injury, the pursuers have failed to prove that in the circumstances HIE were in breach of that duty. The pursuers' case of negligence at common law accordingly fails.

The Case of Breach of Statutory Duty

[97]The pursuers' third plea-in-law is to the effect that they have suffered loss, injury and damage as a result of breach of statutory duty on the part of the defenders. The statutory duties relied upon are set out in article 16 of the condescendence, where provisions of regulations 3, 4, 5, 6, 8 and 11 of the 1992 Regulations are quoted. The pursuers' pleadings recognise, however, that their reliance on breach of the 1992 Regulations as a ground of action is not a straightforward matter. They quote section 47(2) of the 1974 Act, which provides:

"Breach of a duty imposed by health and safety regulations shall, so far as it causes damage [defined in subsection (6) as including death of, or injury to, any person (including any disease and any impairment of a person's physical or mental condition)], be actionable except in so far as the regulations provide otherwise";

and regulation 15 of the 1992 Regulations, which provides:

"Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings".

On the face of those provisions, breach of the regulations on which the pursuers seek to found affords no civil right of action.

[98]In that situation the pursuers seek to fall back upon the fact that the 1992 Regulations purport to implement the Framework Directive. They seek to argue that for proper implementation of the Directive there must be provision for a right of civil action. They therefore maintain either that, as a matter of interpreting the domestic law in accordance with the Directive, regulation 15 should be treated as being of no effect, or that a civil right of action on the provisions of the Directive should be held to exist as a matter of direct effect.

  • Interpretation of the Framework Directive - "Safety and Health"
    [99]Mr Jones advanced the radical argument that the Framework Directive, properly construed, was not intended to address the emotional or psychological impact of working conditions on the employee, and that accordingly neither the Directive nor the 1992 Regulations enacted to implement it could be relied upon by the pursuers in the present case. It is convenient to begin consideration of the issues arising in connection with the Directive at that point.
  • [100]Mr Jones submitted that in interpreting a directive it was necessary to look to its purpose and intent, and that in that connection recourse should be had to the preambles (H. P. Bulmer Ltd v J. Bollinger SA [1974] Ch 401, per Lord Denning MR at 425C-426E). The preamble to the Framework Directive began with reference to Article 118a (now Article 138) of the EC Treaty, and continued:

    "Whereas Article 118a of the Treaty provides that the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers ...".

    The pursuers' submissions based on the Framework Directive involved the tacit assumption that "health", as used in the Directive, should be understood to include mental health. That assumption was not well founded. If it were well founded the Directive would have required Member States to impose on employers obligations with which it would have been impracticable for them to comply. For example, every employer would have had to arrange for an assessment of all potential stressors present in every aspect of every task undertaken by every employee, and, since the evidence was that an individual's reaction to stress depended inter alia on his biological make-up and history, would have required to obtain a psychological profile of every employee. It was, however, unlikely that when Article 118a was added to the Treaty in 1987 that was what was contemplated. On the contrary, the phrase "safety and health" had consistently been used by the Council and the Commission to mean the absence of accidents and disease. For example, the preamble to the Council Decision of 27 June 1974 on the setting up of an Advisory Committee on Safety, Hygiene and Health Protection at Work (74/325/EEC) contained inter alia the following recitals:

    "Whereas the profound transformation in production methods in all sectors of the economy and the spread of dangerous techniques and materials have created new problems for the safety, hygiene and health protection of workers at their place of work;

    Whereas the prevention of occupational accidents and diseases, as well as occupational hygiene, are among the objects of the Treaty ...;

    Whereas the Council resolution of 21 January 1974 concerning a social action programme envisages an action programme for workers which aims inter alia at improvement in safety and health conditions at work; ..." (emphasis added).

    The same approach could be seen in the Commission Communication on its Programme Concerning Safety, Hygiene and Health at Work, published on 23 October 1987. Throughout that document there was no hint that the Commission had in mind the mental effects of stress. That Communication was followed by the Commission's Proposal for the Directive dated 7 March 1988 in which again the same emphasis could be seen. The preamble contains recitals in the following terms:

    "Whereas Member States' legislative systems differ widely with regard to the prevention of work accidents and occupational diseases;

    Whereas the incidence of accidents at work is still regrettably high, and preventive measures must be introduced or improved in order to guarantee the safety and health of workers ..." (emphasis added).

    In the Framework Directive itself, the preamble includes the following recitals:

    "Whereas in February 1988 the European Parliament adopted four resolutions ... [which] specifically invited the Commission to draw up a framework Directive to serve as a basis for more specific Directives covering all the risks connected with safety and health at the workplace; ...

    Whereas the incidence of accidents at work and occupational diseases is still too high; whereas preventive measures must be introduced or improved without delay in order to safeguard the safety and health of workers and ensure a higher degree of protection ..." (emphasis added).

    That last recital, Mr Jones submitted, was of particular significance because it encapsulated a statement of the perceived mischief, and of the measures to be taken to deal with it. It was of significance that of the fifteen individual directives that followed on the Framework Directive, all were concerned with the prevention of accidents and/or disease, and none specifically addressed the effects of stress on mental health (see Council Directives 89/654/EEC, 89/655/EEC, 89/656/EEC, 90/269/EEC, 90/270/EEC, 90/394/EEC, 90/679/EEC, 91/322/EEC, 92/57/EEC, 92/58/EEC, 92/85/EEC, 92/91/EEC, 92/104/EEC, 93/103/EC and 98/24/EC). When the Commission published its General Framework for Action ... in the Field of Safety, Hygiene and Health at Work 1994-2000 (COM(93)560) in 1993, the opening paragraph stated that:

    "The objective of the Commission's policy in the field of safety and health at work over the last thirty years has been to reduce to a minimum both work accidents and occupational diseases."

    The first reference to stress was to be found in the relative Resolution of the European Parliament on 6 May 1994, which was in inter alia the following terms:

    "The European Parliament,


    Urges that the Commission bring forward a fourth action programme to run until the year 2000 as soon as possible;


    Proposes that the fourth action programme comprise the following:


    New Initiatives

    The Commission shall as a priority investigate the following and where necessary propose new or updated legislative instruments, or where appropriate non-legislative action:

    - stress, both physical and mental, ..."

    From all of that material, Mr Jones submitted, the proper conclusion was that the Framework Directive was not intended to, and did not, address the effects of stress on the mental health of workers.

    [101]In response to those submissions, Miss O'Brien referred to United Kingdom v EU Council [1996] 3 CMLR 671. That case was concerned with whether the Working Time Directive (93/104) was within the power conferred on the Council by Article 118a. In paragraph [15] the ECJ expressed the following view:

    "There is nothing in the wording of Article 118a to indicate that the concepts of 'working environment', 'safety' and 'health' as used in that provision should, in the absence of other indications, be interpreted restrictively, and not as embracing all factors, physical or otherwise, capable of affecting the health and safety of the worker in the working environment, including in particular certain aspects of the organisation of working time". ... Moreover, such an interpretation of the words 'safety' and 'health' derives support in particular from the preamble to the Constitution of the World Health Organisation ... Health is there defined as a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity."

    Miss O'Brien submitted that that showed that the restrictive interpretation of "safety and health" proposed by Mr Jones was inappropriate. There was nothing to exclude from the scope of the Framework Directive the sort of risk to the health of the worker that had eventuated in the case of James Cross. An alternative approach, she submitted, was to regard stress at work as a species of occupational disease.

    [102]In my opinion, Mr Jones's submission is sound. A fair reading of the sequence of documents on which he relied in my view supports the conclusion for which he contended, namely that in using the concept of safety and health at work the Commission intended to address the incidence of physical injury caused by accidents and occupational diseases of a physical nature. They did not intend to address the possibility that working conditions might subject the worker to stress which might result in harm to mental health (or for that matter psychosomatic illness). It is in accordance with the view which I have formed of the way in which consciousness of the phenomenon of stress at work was developing that it was in 1994 that the European Parliament took the initiative to set in train consideration of the effects of stress at work. United Kingdom v EU Council was not, in my view, concerned with the issue which is before me, and while it supports in a general way a broad construction of "safety and health" in Article 118a, I do not consider that it undermines the soundness of Mr Jones's analysis of the way in which the matter was in fact regarded by the Commission at the time of the enactment of the Framework Directive. It perhaps shows that a Directive expressly addressing the effect of stress on mental health, if one had been enacted, would have been within the power conferred by Article 118a. But it does not, in my view, show that the Framework Directive was intended to deal with that matter tacitly. Miss O'Brien's suggestion that stress at work might come within the scope of the Framework Directive on the basis that it is to be regarded as an occupational disease is not in my view satisfactory. I conclude that the Framework Directive did not address the effect of stress at work on workers' mental health. I therefore accept the submission that it does not afford a sound basis for the claims in the present action.

  • Interpretation of the Framework Directive - A Right of Action?

[103]Mr Jones advanced a further submission that the Framework Directive, properly construed, was not intended to create rights in favour of workers. In light of the conclusion which I have reached in paragraph [102] above, the result of the case will not turn upon that submission, but it is appropriate that I should indicate briefly the view which I take of it.

[104]The context in which the submission was made was as a response to Miss O'Brien's submission that regulation 15 of the 1992 Regulations brought about a situation in which, for want of an effective remedy, the Framework Directive was not fully implemented in domestic law (c.f. Munkman on Employer's Liability, twelfth edition, page 20; Redgrave's Health and Safety, third edition, paragraphs [3.737] and [3.776]). Although in terms of Article 189 (now 249) the choice of ways and means of implementing a directive was for the Member States, they must nevertheless adopt all measures necessary to ensure that a directive was fully effective, in accordance with the objective which it pursued (Von Colson at 1906). In the present case full effectiveness required that there be a civil right of action. The public enforcement mechanisms available under the 1974 Act were insufficient to achieve full effectiveness, because they were unlikely to be deployed in the case of each and every breach. The exclusion of the civil right of action purportedly effected by regulation 15 should therefore be ignored, in the same way as the cap on compensation for sex discrimination required to be ignored (Marshall v Southampton and South West Hampshire Area Health Authority [1993] 3 CMLR 293). Alternatively the provisions of the Framework Directive had not been fully implemented, and were sufficiently precise to be given direct effect (c.f. Kincardine and Deeside District Council v Forestry Commissioners 1992 SLT 1180 per Lord Coulsfield at 1186).

[105]Mr Jones submitted that the question whether a civil right of action was required to make the Directive fully effective could arise only if the Directive intended that rights be conferred on individual workers (Frankovich v Italian Republic [1991] ECR I-5357 at I-5415). In the cases relied on by Miss O'Brien, the intention to confer rights on the individual was clear. The cases (e.g. Von Colson and Marshall) were concerned with the Equal Treatment Directive (76/207/EEC). Article 1 of that Directive stated its purpose as being to put into effect in Member States the "principle of equal treatment". Article 6 provided:

"Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment ... to pursue their claims by judicial process after possible recourse to other competent authorities".

A civil right of action was thus expressly contemplated. The provisions of the Framework Directive were of a different nature. By Article 1, the object of the Directive was stated to be:

"to introduce measures to encourage improvements in the safety and health of workers at work".

Article 6 imposed various "general obligations" on employers. Paragraph 1 provided:

"Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organisation and means. ..."

Paragraph 2 provided inter alia that:

"The employer shall implement the measures referred to in the first subparagraph of paragraph 1 on the basis of the following general principles of prevention:

  • avoiding risks;
  • evaluating the risks which cannot be avoided;
  • combating the risks at source;
  • adapting the work to the individual ...;
  • adapting to technical progress;
  • replacing the dangerous by the non-dangerous or the less dangerous;
  • developing a coherent overall prevention policy ...;
  • giving collective protective measures priority over individual protective measures;
  • giving appropriate instructions to the workers."

It was clear, Mr Jones submitted, that the Directive set out to regulate the conduct of employers by imposing duties on them. There was, however, no jurisprudential reason for inferring that it also conferred corresponding rights on workers. That inference should not be drawn. If the Directive did not confer rights, regulation 15 of the 1992 Regulations could not be said to result in incomplete implementation.

[106]Mr Jones submitted further that, in any event, an individual right of action under domestic law was not necessary to secure full implementation of the Directive. In terms of Article 189 a directive is binding on Member States as to the result to be achieved, but "the choice of form and methods" is left to national authorities. Article 4 of the Framework Directive provides:

"1. Member States shall take the necessary steps to ensure that employers, workers and workers' representatives are subject to the legal provisions necessary for the implementation of this Directive.

2. In particular, Member States shall ensure adequate control and supervision."

In so far as that provision could be construed as giving any indication about the form of enforcement, it suggested something more stringent than the possibility of civil litigation at the instance of the individual worker. The selection of the enforcement provisions contained in the 1974 Act as the "form and method" of making the Directive effective could not be said to be beyond the scope of the discretion conferred on the United Kingdom as a Member State. For broad general provisions such as those contained the Framework Directive, the imposition of state controls was more likely to be effective than the possibility of ex post facto civil litigation. In any event, the obligations imposed by the Framework Directive were not sufficiently precise to be accorded direct effect. In that respect, they were to be contrasted with the provisions of the Equal Treatment Directive held to have direct effect in cases such as Von Colson and Marshall.

[107]In my opinion Mr Jones's submissions on these matters are on the whole sound. It is, in my view, correct that the first question is whether the Directive, properly interpreted, conferred rights on the individual (Frankovich at I-5415). To determine whether it did so, it is in my view necessary to examine its object and the nature of its provisions. It is not legitimate, in my view, to argue by analogy from the cases concerned with the Equal Treatment Directive, because that directive clearly and expressly confers rights and contemplates their enforcement by civil litigation (see Article 6). The Framework Directive, on the other hand, is not concerned directly with how individuals are to be treated. Rather it is concerned with the improvement of health and safety in a general way. Its provisions, as its title suggests, are concerned to set up a framework within which more specific provisions can be put effectively into operation. It sets out general principles and methods of approach, and deals with organisational matters. Its aim, it seems to me, is not to confer directly enforceable rights on workers, but to create a legislative environment and organisational arrangements within which more specific provisions, perhaps conferring such rights, may operate effectively. I am therefore satisfied that on a sound construction of the Framework Directive its provisions do not confer on individual workers rights which they may seek to enforce by litigation. It follows that I do not consider that it can be said that a right of civil action required to be conferred on workers in order to secure full implementation of the Directive in domestic law. Having regard to the nature and purpose of the provisions of the Directive, I am of opinion that the enforcement procedures available under the 1974 Act are sufficient to comply with Article 4. It follows that the existence of regulation 15 does not result in incomplete implementation of the Directive. There is therefore, in my view, no basis for refusing to give effect to the exclusion of the right of action in civil proceedings contained in regulation 15. In those circumstances no question of the Directive having direct effect arises (Johnston v Chief Constable of the Royal Irish Constabulary [1987] QB 129 at 153D, paragraph 51).

  • Direct Effect - An Emanation of the State
  • [108] One condition that requires to be satisfied if a Directive is to have direct effect is that the defender against whom it is relied upon must be an emanation of the state. Since I have held that for other reasons the question of the Framework Directive taking direct effect does not arise, it is unnecessary to determine whether HIE and WIE are to be regarded as emanations of the state. Since I heard submissions on the point, however, it is appropriate that I should summarise them and indicate the view which I would have taken if the matter had required to be decided.

    [109]Miss O'Brien began her submissions on this issue by citing the test formulated by the ECJ in Foster v British Gas plc [1991] 1 QB 405 at 427G, paragraph 20:

    "... a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included among the bodies against which the provisions of a Directive capable of having direct effect may be relied upon."

    Reference was also made to Johnston v Chief Constable of the Royal Irish Constabulary (a constitutionally independent police authority), Marshall v Southampton and South West Hampshire Area Health Authority [1986] 1 QB 401 (a public health authority), Fratelli Constanzo SpA v Comune di Milano [1990] 3 CMLR 239 (local and regional authorities), Griffin v South West Water Services Ltd [1995] IRLR 15 (a privatised water company), R v British Coal Corporation ex parte Vardy [1993] IRLR 104 and NUT v St Mary's Church of England Junior School [1997] 3 CMLR 630 (governors of a voluntary aided school). In the last mentioned case, the (English) Court of Appeal held that the "tripartite test" formulated in Foster was merely indicative, and was not to be treated as if it were a statutory definition.

    [110]Miss O'Brien submitted that on a proper application of those authorities, HIE, which owed its existence to Part 1 of the Enterprise and New Towns Act 1990, was formed to carry out public functions in connection with economic and social development, together with training functions previously performed by a government department, and was publicly funded, was an emanation of the state for the purpose of the doctrine of direct effect. WIE, to whom within certain geographical limits aspects of those public functions of HIE were delegated, was likewise for that purpose an emanation of the state.

    [111]Mr Jones took as the starting point of his submission the passage from Foster quoted in paragraph [109] above. He submitted that there was a distinction to be drawn between a body that provides a service to the public and one that provides a service to the state (Rolls-Royce plc v Doughty [1992] ICR 538 per Mustill LJ at 552F). The defenders, he submitted, fell into the latter rather than the former category, and were accordingly not to be regarded as emanations of the state.

    [112]Had the point arisen for decision, I would have held that both defenders are emanations of the state. It seems to me that HIE in particular was specifically created by statute to take over the performance within its area of public services that had previously been performed in part by HIDB and in part by the Training Agency. The evidence led indicated that HIE's activities are publicly funded and are to a substantial extent regulated by government policy. In so far as WIE is in a different position, the difference relates mainly to the legal form in which it was constituted, and not the public functions which it performs. It seems to me that both defenders are involved in providing on behalf of the state a service to the public. I am therefore satisfied that, if the question of direct effect had otherwise arisen, it would have been appropriate to hold that both defenders are emanations of the state against whom direct effect could be relied upon.

  • Conclusion on Breach of Statutory Duty

[113]For the reasons given in paragraphs [99] to [107] above, I am of opinion that the statutory duties on which the pursuers seek to found, namely those created by the 1992 Regulations, do not give rise to a civil right of action, and that on a proper interpretation of the Framework Directive its provisions neither enable me to ignore the provisions of regulation 15 nor take direct effect. The pursuers' case of breach of statutory duty therefore fails.


[114]If I had held that the defenders were negligent or in breach of statutory duty, the next issue that would have arisen would have been whether it had been proved that James Cross's suicide was caused by that negligence or breach of statutory duty. In view of the fact that I have held that negligence and breach of statutory duty have not been proved, that issue does not now arise. It is, however, appropriate that I should record the submissions that were made on it, and indicate briefly the view that I would have taken.

[115]By way of background to this aspect of the case it is, in my view, necessary to bear in mind that the pursuers' claims are made under section 1 of the Damages (Scotland) Act 1976. That section provides inter alia as follows:


Where a person dies in consequence of personal injuries sustained by him as a result of an act or omission of another person, being an act or omission giving rise to liability to pay damages to the injured person or his executor, then, subject to the following provisions of this Act, the person liable to pay those damages (in this section referred to as 'the responsible person') shall also be liable to pay damages in accordance with this section to any relative of the deceased, being a relative within the meaning of Schedule 1 to this Act."

Section 10 provides inter alia as follows:


In this Act, unless the context otherwise requires -

'personal injuries' includes any disease or any impairment of a person's physical or mental condition."

In terms of section 1(1) there must therefore, in my view, be established (i) a causal connection between a wrongful act or omission on the part of the responsible person and personal injuries suffered by the deceased and (ii) a causal connection between those personal injuries and the death of the deceased.

[116]Given that the pursuers' case involves no allegation of negligence causative of James Cross's original illness, the causal connections which the pursuers required to prove were therefore (i) one between the allegedly negligent exposure of James Cross to stressful conditions at work in the period from the date of his return to work to the date of his death and a worsening or recrudescence of his depressive illness, and (ii) one between that worsening or recrudescence and his suicide. A number of issues arose in the course of counsel's submissions in relation to those stages of causal connection linking the alleged negligence to the suicide.

  • Caused or Materially Contributed

[117]Miss O'Brien accepted that it was for the pursuers to prove on the balance of probabilities that a worsening or recrudescence of James Cross's depression was caused by the defenders' negligence or breach of statutory duty, but submitted that it was not necessary for them to show that that negligence or breach of duty was the sole cause of the worsening or recrudescence, but sufficient to show that it made a material contribution to such causation (Wardlaw v Bonnington Castings 1956 SC (HL) 26, per Lord Reid at 32 and Lord Tucker at 34). A common sense rather than a philosophical or scientific approach to causation was to be adopted (Caswell v Powell Duffryn Associated Collieries [1940] AC 152, per Lord Atkin at 165; Stapley v Gypsum Mines [1953] AC 663, per Lord Reid at 681). Miss O'Brien also sought to rely on McGhee v National Coal Board 1973 SC (HL) 37 for the proposition that it was sufficient for the pursuers to show that the defenders' negligence had materially increased the risk that James Cross's mental illness would worsen or recur. She submitted that the evidence suggested that what made James Cross's illness worse in July and August 1993 was (a) further exposure to stressful conditions at work, and (b) the lack of appropriate treatment for his depression. It was sufficient to establish the necessary causal connection, she submitted, if it were held that further exposure to stressful conditions materially increased the risk that his illness would get worse. The evidence supported the inference that such exposure did materially increase that risk.

[118]Mr Jones submitted that the pursuers' approach to this aspect of causation was erroneous. He took as his starting point the undisputed proposition that the onus of proof of a causal connection between the wrongful act or omission and the harm suffered rested upon the pursuers (Wardlaw). The differences between cases such as Wardlaw (in which two sources, one negligently caused and one occurring without negligence, contributed to conditions which were proved to have caused the illness), McGhee (in which there were successive periods of exposure to a harmful agent, one occurring without negligence and the other negligently caused, and the evidence was that the likelihood of harm was increased by the length of exposure) and Wilsher v Essex Area Health Authority [1988] AC 1074 (in which there were various possible causes, the existence of one only of which was proved to have been due to the defendants' negligence), were explained in Wilsher. The reasoning adopted in McGhee was not applicable in the circumstances of a case, such as the present, in which more than one possible cause of the harm existed and only one (namely renewed stress on his return to work) was allegedly due to the defenders' negligence. It was ordinarily insufficient to prove merely that the negligent act or omission materially increased the risk of injury (Porter v Strathclyde Regional Council 1991 SLT 446). On the evidence the pursuers had failed to prove that James Cross's psychiatric illness was made worse, or caused to recur, by exposure to stressful conditions at work of the sort they alleged during the period between his return to work and his death.

[119]In my view it is clear that in the circumstances of the present case the burden of proving that the defenders' wrongful acts or omissions caused a worsening or recrudescence of James Cross's illness after his return to work rests upon the pursuers (Wardlaw). It is not, in my opinion, sufficient for the pursuers to show merely that such wrongful acts increased the risk of worsening or recurrence (Porter). The reasoning illustrated in McGhee is not, in my view, applicable in the circumstances of this case. where there are competing explanations for the worsening of James Cross's depression (Wilsher; Page v Smith (No. 2) [1996] 1 WLR 855 at 857G to 859C). On the view which I have taken of the evidence of the conditions to which James Cross was exposed on his return to work (see paragraphs [82] to [91] above), and in light of the uncontradicted evidence that his original depressive illness received no effective treatment while he was off work, I am unable to conclude that it has been proved that those conditions either caused or materially contributed to a worsening or re-emergence of his illness. Had I held that he was exposed after his return to work to conditions of the sort alleged by the pursuers in their pleadings, I might have concluded that on the balance of probabilities those conditions made a material contribution to worsening his condition, notwithstanding the part also played by the fact that his illness had gone without effective treatment. It would, however, be unrealistic to take discussion of that possibility further, because much would in that event have turned on precisely how much of what the pursuers alleged I had held to be established. In the event, the evidence which has led me to the conclusion that the conditions in which James Cross worked after the end of June 1993 did not disclose negligence or breach of statutory duty on the part of the defenders would also have led me, if the point had arisen, to the conclusion that it had not been proved that those conditions made a material contribution to causing a worsening or recurrence of his depressive illness.

(b) Novus Actus Interveniens

[120]It is, in my view, clear from the evidence that James Cross's death was caused by his depressive illness, in the sense that it is highly unlikely that he would have committed suicide if he had not been suffering from that illness. The evidence fell short of identifying suicide as a probable result of depressive illness, but did establish that depressive illness greatly increases the likelihood of suicide. For the reasons already discussed, however, I am unable to find it proved that his condition was made worse by his working conditions after his return to work, and I therefore cannot hold it proved that it was such worsening (which was all that the pursuers sought to attribute to wrongful acts or omissions on the defenders' part) that resulted in the suicide. On that basis I would therefore have held that the second stage of causal connection between his allegedly negligent working conditions and his death had not been proved. If I had held otherwise, and had also found that the defenders had wrongfully exposed him to such working conditions, it would have been necessary to address the question, raised by the defenders' third plea-in-law, whether James Cross's voluntary act of suicide was to be regarded as a novus actus interveniens.

[121]Miss O'Brien submitted that for an act to constitute a novus actus interveniens, breaking the causal connection between the wrongful act founded on and the harm giving rise to the claim, it required to be something unreasonable or ultroneous (The Oropesa [1943] P 32; McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20). In the more particular context of suicide as a novus actus interveniens, she cited two Canadian cases in which differing conclusions were reached (Swami v Lo (1979) 105 DLR (3d) 451, and Wright v Davidson (1989) 49 CCLT 116), as well as two UK cases, one English and one Scottish, in which likewise differing results were reached (Pigney v Pointers Transport Services Ltd [1957] 1 WLR 1121, and Cowan v National Coal Board 1958 SLT (Notes) 19). Miss O'Brien also cited a number of cases where the duty of care founded upon was a duty to take reasonable care to prevent suicide (Drake v Pontefract Health Authority [1998] Lloyd's Rep Med 425; Walsh v Gwynedd Health Authority [1998] CLY 3977; G's Curator Bonis v Grampian Health Authority 1995 SLT 652; Kirkham v Anderton [1990] 2 QB 283; Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360), but recognised that such cases were distinguishable from the present case, in which the duty founded upon was not a duty to take care to prevent suicide. She submitted, however, that where the duty founded upon was a duty not to subject an employee to conditions likely to cause mental illness, and where the mental illness in question was recognised as materially increasing the likelihood of suicide, the occurrence of suicide should not be treated as a novus actus interveniens.

[122]In the event, Mr Jones did not seek to argue that James Cross's suicide should be held to constitute a novus actus interveniens if in all other necessary respects a causal connection between negligently caused worsening of his depressive illness and his death were established. In light of that concession, which was in my view properly made, it is unnecessary for me to say anything more on the point.

(c) Conclusion on Causation

[123]In the result, therefore, I do not consider that the pursuers have proved either (i) that James Cross's working conditions after his return to work caused or materially contributed to causing a worsening or recrudescence of his depressive illness, or (ii) that his death by suicide was caused by such worsening or recrudescence of his illness.


[124]Had I held that the death of James Cross was caused by negligence or breach of statutory duty on the part of the defenders, the one remaining issue that would have had to be considered in dealing with the merits of the pursuers' claims would have been remoteness of damage. In the event, the issue does not arise, but it is again appropriate that I should record the submissions that were made and the view that I would have taken.

[125]Mr Jones submitted that, if it had been proved that worsening of James Cross's depression was caused by negligence or breach of statutory duty on the part of the defenders, and that that worsening of his depression caused him to commit suicide, the pursuers would nevertheless not have been entitled to recover damages in respect of his death, because his suicide was not a consequence of that negligence or breach of duty of a kind that was reasonably foreseeable (Overseas Tankships (UK) Ltd v Morts Dock & Engineering Co Ltd, The Wagon Mound [1961] AC 388). Although it was recognised that the wrongdoer had to take his victim as he found him, and would therefore be liable for the whole consequences if a reasonably foreseeable injury developed in an unforeseeable way, such cases were distinguishable. They were concerned, not with unforeseeable damage of a different kind from that which was foreseeable, but with more extensive damage of the same kind (Smith v Leech Brain & Co Ltd [1962] 2 QB 405; c.f. Cowan v National Coal Board). Here the personal injury that constituted the immediate cause of James Cross's death was the gunshot wound that he inflicted on himself, not his depressive illness. Although it was not submitted that the gunshot wound broke the chain of causation between his depressive illness and his death, that injury from which he died was of a different type from that which could reasonably have been foreseen. The suicide was not, on the evidence, reasonably foreseeable.

[126]Miss O'Brien submitted that where a wrongful act resulted in a reasonably foreseeable injury, the injured party was entitled to recover damages in respect of the whole consequences (whether individually foreseeable or not) of that injury. Here, if worsening of James Cross's depressive illness was a reasonably foreseeable result of the defenders' wrongful acts or omissions, and James Cross's suicide was caused by his worsened depression, the defenders were liable in damages in respect of his death even if his suicide was not reasonably foreseeable by the defenders as a likely consequence of their wrongful acts or omissions.

[127]It is, in my view, clear that if the injured party suffers no loss of a reasonably foreseeable type (or, to put the matter another way, if the only loss suffered is of a type that was not reasonably foreseeable), damages will not be recoverable (The Wagon Mound). But if reasonably foreseeable injury is caused, the wrongdoer is liable not only for that reasonably foreseeable injury, but for any complication, development or result of that foreseeable injury, even if the complication, development or result is itself unforeseeable. That principle, the so-called "thin skull" rule, was stated by Lord President Clyde in McKillen v Barclay Curle & Co Ltd 1967 SLT 41 at 42 in the following terms:

"In my opinion it has never been the law of Scotland that a man guilty of negligence towards another is only liable for the damage in respect of physical injuries which a reasonable man would foresee as likely to follow from it. On the contrary it has always been the law of Scotland as I understand it that once a man is negligent and injures another by his negligence he is liable for all the damage to the injured man which naturally and directly arises out of the negligence. He must take his victim as he finds him, and if his victim has a weak heart and dies as a result of the injury the negligent man is liable in damages for his death, even although a normal man might only in the circumstances have sustained a relatively trivial injury."

In Smith v Leech Brain & Co Ltd Parker CJ said:

"For my part, I am quite satisfied that the Judicial Committee of the Privy Council in The Wagon Mound did not have what I may call, loosely, the 'thin skull' cases in mind. It has always been the law of this country that a tortfeasor takes his victim as he finds him. It is unnecessary to do more than refer to the short passage in the decision of Kennedy J in Dulieu v White & Sons [1901] 2 KB at 679, where he said:

'If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.'"

Although those dicta are couched in terms of "physical injuries" and a man "injured in his body", it makes in my opinion no material difference to the applicability of the principle that the original injury here was psychological. If it had been proved that worsening of James Cross's depression was caused by wrongful acts or omissions on the part of the defenders, and that it was that worsening of his depression that led him to commit suicide, the pursuers would, in my opinion have been entitled to recover damages in respect of his death notwithstanding the fact that his suicide was not proved to be reasonably foreseeable as a likely result of the wrongful acts or omissions. The "thin skull" rule cannot, in my view, be avoided by arguing that suicide by gunshot is a different kind of harm from depressive illness, when there was clear evidence that depressive illness greatly increases the likelihood of suicide. The precise method of suicide adopted is in my opinion irrelevant. If the requisite causal connections had been established, I would not have held that the fact that the suicide was not proved to be reasonably foreseeable constituted an obstacle to recovery of damages by the pursuers. The point is, however, in the circumstances academic.


[128]As I have indicated the parties were agreed on quantum of damages. The figures are set out in the Joint Minute of Admissions, No. 57 of process. The composition of the total sum agreed in respect of each of the four claims is as follows:


The first pursuer as an individual -


loss of society (including interest thereon)



past loss of support



interest thereon




future loss of support



loss of pension



past loss of services (including interest)



future loss of services



funeral expenses





Mrs Cross as guardian of Rona


loss of society (including interest)



past loss of support



interest thereon




future loss of support



past loss of services (including interest)



future loss of services





Mrs Cross as guardian of Joanne


loss of society (including interest)



past loss of support



interest thereon




future loss of support



past loss of services (including interest)



future loss of services





The fourth pursuer


loss of society (including interest)




[129]Had I been awarding damages, therefore, the total sums which I would have awarded would have been:


in respect of the claim of Mrs Cross as an individual



in respect of the claim of Mrs Cross as guardian of Rona



in respect of the claim by Mrs Cross as guardian of Joanne



in respect of the claim of the fourth pursuer



[130]For the reasons which I have given, I shall sustain the defenders' second and fourth pleas-in-law, repel the pursuers' first, second and third pleas-in-law, and assoilzie both defenders from the conclusions of the summons.