Recent Cases
22 July, 2024
Frame v Abellio Scotrail Ltd [2024] SC EDIN 32
Jennifer Nicholson-White appeared for the successful defender, in a claim for damages arising out of stress at work, which was litigated in the All Scotland Sheriff Personal Injury Court and decided by Sheriff Nicol following a Proof in February 2024.
Here, Jenny summarises the case and discusses what can be learned from it. The full decision can be read by clicking here.
SUMMARY OF THE CASE
Mr Frame sought damages from his employers for a psychological injury he claimed was caused by his employers’ breach of duty, between 15 January 2018 and 1 August 2019, in respect of the manner in which they had dealt with a grievance he had raised. The Court determined that there was no foreseeable risk of injury until 31 December 2018 and that from that date “the defender, in the main, took all appropriate steps except in relation to Mr Allan writing to the pursuer in March and May 2019 to say the grievance was closed. That conduct amounted to a breach of duty on the part of the defender which created a foreseeable risk of injury applying the principles laid down in Barber.”
The Court heard evidence (which it accepted) that during the relevant period there had been multiple stressors in the pursuer’s life (including those for which he did not seek to blame his employer). The Court found (at para 33) that it was not possible to determine which of the multiple stressors, if any, caused or materially contributed to the pursuer developing the psychological injury diagnosed in 2022 and 2024 by Dr Morrison.
The only skilled witness in the case, Dr Fraser Morrison, Consultant Psychologist, instructed for the pursuer, had produced two reports in which he gave his opinion that, in January 2022 (when he first examined the pursuer) and in February 2024, the pursuer was suffering from an Adjustment Disorder. Having assessed him for the purposes of preparing his opinion and report, Dr Morrison was aware of the pursuer’s version of events with regards to the subject matter of the dispute. However, Dr Morrison had not been provided with a copy of the Record, nor certain factual documents (which were referred to at Proof) and he had not been told what the defender’s position was, prior to the Proof. In his assessment of the evidence, Sheriff Nicol said (at para 140) that Dr Morrison “had clearly not been given all the relevant material at the time of his assessments” and, in the witness box, “was being asked to offer “off the cuff” opinions on the fundamental issues in the case, which he was clearly reluctant to do.”
On causation, the Court held (see para 211) that:
“… no medical evidence is available to the court, to allow the court to conclude that the pursuer’s psychological condition is wholly or partly attributable to any breach of duty between 31 December 2018 and 1st August 2019. The medical evidence can only be relied upon to confirm that the pursuer was suffering from a Psychological injury in 2022 and 2024. It does not permit the court to form a view that the breach of duty in 2019 caused or materially contributed to the pursuer developing the Adjustment Disorder.”
WHAT CAN BE LEARNED FROM THE CASE?
This case highlights the crucial importance of properly instructing skilled witnesses (“experts”). It is a stark reminder that an expert requires to be given all the relevant information to allow that expert to form, not only an opinion which is independent and impartial but one which is fully considered and sufficiently reliable in order to assist the Court. Without reliable evidence on a key issue, such as causation in this case, a pursuer is likely to find that the Court is not in a position to find in his favour.
Failing to provide an expert with a copy of the Record, copies of key factual documents likely to be relevant at Proof and to give the witness notice of the other party’s position, runs the considerable risk of putting the expert in an unfairly precarious position at Proof. An expert who has not been afforded an opportunity to consider matters of potentially fundamental relevance prior to Proof, which he is then inevitably cross-examined on, may well depart from his original opinion in the witness box. Where the Court finds that there is an evidential lacuna on causation, in a personal injuries action, in which both the existence and cause of an injury must be proved by the pursuer, on the balance of probabilities, the claim cannot succeed.
It may also be of interest to note Sheriff Nicol’s comments (at para 201) that although the pursuer made no averments on Record that the alleged breaches of duty had “materially contributed” to his injury, such averments were not necessary as this was a Chapter 36 case where abbreviated pleadings apply. In short, he rejected the argument for the defender that, even in simplified personal injury procedure, a pursuer should plead “material contribution” if he intends to advance an esto argument that, if his injury was not solely caused by the alleged breach of duty, that breach materially contributed to it.
“Stress at work” cases are always difficult and anyone who has or is suffering from a mental health condition deserves sympathy, care and compassion. However, as Hale L.J. said in Hatton v Sutherland [2002] ICR 613, at para 22:
“…… these claims do require particular care in determination….As Simon Brown LJ pithily put it in Garrett’s case, at para 63:
“Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant’s employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability.”