Defender successful in claim for damages arising out of stress at work
Jennifer Nicholson-White appeared for the successful defender in the case of Frame v Abellio Scotrail Ltd [2024] SC EDIN 32, 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.”
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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.”
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Ampersand Advocates welcomes 4 new members: Louise Jardine, Kirsty Shaw, Amelia Mah and Sean White
Ampersand is delighted to welcome Louise Jardine, Kirsty Shaw, Amelia Mah and Sean White to the stable, following their call to the Bar today.
On the new members’ arrival, Stable Director Euan Mackenzie KC, said: “I am delighted to welcome Louise, Kirsty, Sean and Amelia to Ampersand. They have all demonstrated exceptional legal ability and skills before coming to the Bar and will be an asset to the Stable. I wish them all the best in their new careers as Advocates”.
Ampersand’s Practice Manager, Alan Moffat added “I am delighted to welcome our newest members of Ampersand. Their addition to our set brings the membership to 61 and the experience which each brings is a fantastic fit for Ampersand’s core areas of practice. They will be a real asset to those looking to instruct counsel. I am sure that joining Ampersand will offer them rewarding opportunities and collaborative support”.
Louise Jardine
Louise calls to the Bar after working as a solicitor for a large public sector organisation.
Louise’s practice focuses on clinical negligence and personal injury. She also has experience representing clients at public and fatal accident inquiries. Louise has experience in other areas including mental health, regulatory matters and public law. Louise has appeared in Sheriff Courts across Scotland, including the All-Scotland Sheriff Personal Injury Court. As a solicitor, Louise regularly dealt with cases raised in the Court of Session. She also has experience of dealing with cases in the Inner House.
During her period of devilling, Louise expanded her knowledge base further having been exposed to cases involving other areas of professional negligence, commercial law and criminal law.
Louise completed her LLB and Diploma in Professional Legal Practice at the University of Glasgow.
Kirsty Shaw
Kirsty calls to the Bar having previously worked as a solicitor at a leading commercial law firm.
Kirsty practices principally in the field of commercial disputes and has particular experience of construction project litigation. She also has considerable experience in professional liability, insolvency and property litigation. In addition, Kirsty has an interest in public and planning law and clinical negligence.
She has represented a broad range of clients in a number of complex disputes of substantial value in court and at arbitration, adjudication and mediation.
Kirsty is currently a tutor in Contract law and Unjustified Enrichment, Commercial law and Evidence at the University of Edinburgh.
Amelia Mah
Amelia calls to the Bar having trained at an international commercial law firm with a particular focus on commercial and real estate litigation. She was the recipient of the Lord Hope and Faculty scholarships whilst devilling.
In private practice, Amelia worked on large commercial disputes, including breaches of contract, procurement and group litigation. She also has experience with insurance and reinsurance matters, particularly in professional negligence defence. Amelia also practised in real estate litigation where she was involved in lease disputes, actions for payment of rent arrears and dilapidation claims.
Whilst devilling, Amelia gained further experience in a wide range of high value and complex commercial actions in the Court of Session. She has developed a particular interest in the field of intellectual property, covering trademark infringement, patent infringement and copyright infringement claims. Amelia gained considerable experience in moving for interim orders in intellectual property actions. She continues to work in the field of commercial property litigation, including disputes on access rights.
Amelia was also involved in fatal and serious clinical negligence claims for both pursuers and defenders, public law cases and public inquiries. She has experience in all levels of the Court system in Scotland from the Sheriff Court to the Inner House.
Sean White
Sean calls to the Bar having enjoyed a varied civil litigation practice as a solicitor.
He practices mainly in commercial litigation, with particular interest in construction and property disputes, commercial contracts and professional and clinical negligence.
Sean came to the Bar with already impressive representative experience, having appeared in various courts and tribunals in Scotland, where he has conducted proofs, debates and other contentious and non-contentious hearings for pursuers and defenders. He has represented businesses and individuals in a range of complex and high-value cases.
Before calling to the Bar, Sean worked as a Senior Solicitor in the commercial disputes team of a well-known Scottish firm, where he focussed principally on construction and energy sector disputes. During this time, he worked on many Court of Session litigations and gained experience in different forms of alternative dispute resolution, including mediation, arbitration and adjudication.
He previously trained and worked with an Edinburgh-based litigation firm, during which time he represented clients in a range of cases, covering commercial contracts, professional and clinical negligence, personal injury, interdict and judicial review, amongst other things.
During devilling, Sean gained further experience in construction, property, professional and clinical negligence, commercial contract, company and insolvency litigation.
For further information about their practices view their profiles here:
To instruct any of them, please contact the Ampersand Clerking Team: ampersandclerks@advocates.org.uk.
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Sean White
Sean White called to the Bar in 2024, having enjoyed a varied civil litigation practice as a solicitor.
He practices mainly in commercial litigation, with particular interest in construction and property disputes, commercial contracts and professional and clinical negligence.
Sean came to the Bar with already impressive representative experience, having appeared in various courts and tribunals in Scotland, where he has conducted proofs, debates and other contentious and non-contentious hearings for pursuers and defenders. He has represented businesses and individuals in a range of complex and high-value cases.
Before calling to the Bar, Sean worked as a Senior Solicitor in the commercial disputes team of a well-known Scottish firm, where he focussed principally on construction and energy sector disputes. During this time, he worked on many Court of Session litigations and gained experience in different forms of alternative dispute resolution, including mediation, arbitration and adjudication.
He previously trained and worked with an Edinburgh-based litigation firm, during which time he represented clients in a range of cases, covering commercial contracts, professional and clinical negligence, personal injury, interdict and judicial review, amongst other things.
During devilling, Sean gained further experience in construction, property, professional and clinical negligence, commercial contract, company and insolvency litigation.
Selected cases:
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Louise Jardine
Louise Jardine called to the Bar in 2024 after working as a solicitor for a large public sector organisation.
Louise’s practice focuses on clinical negligence and personal injury. She also has experience representing clients at public and fatal accident inquiries. Louise has experience in other areas including mental health, regulatory matters and public law. Louise has appeared in Sheriff Courts across Scotland, including the All-Scotland Sheriff Personal Injury Court. As a solicitor, Louise regularly dealt with cases raised in the Court of Session. She also has experience of dealing with cases in the Inner House.
During her period of devilling, Louise expanded her knowledge base further having been exposed to cases involving other areas of professional negligence, commercial law and criminal law.
Louise completed her LLB and Diploma in Professional Legal Practice at the University of Glasgow.
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Ampersand Advocates continues Top Rankings success in 2024 Chambers and Partners UK Bar Guide
Ampersand Advocates has once again received top tier rankings across a number of areas of practice in the latest published guide to the legal profession, Chambers and Partners UK Bar Guide 2024.
Ampersand and its members received 75 listings across 17 areas of practice, ranking as top tier (band 1) in Clinical Negligence and Planning & Environmental Law as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Construction, Personal Injury, Professional Negligence, Real Estate Litigation and Restructuring/Insolvency as a Set. 5 members are noted as “star individuals”. There are additional rankings for Susanne Tanner KC in the Independent Inquiries all circuits section and Aidan O’Neill KC in the European Law London Bar section. There is wide practice for our clerking team and client service too.
Noted as a Band 1 set for Clinical Negligence, “Ampersand Advocates retains its reputation as a market-leading stable for clinical negligence matters. Its advocates continue to provide expert legal advice and representation to both pursuers and defenders in a wide range of disputes, including claims relating to birth and catastrophic brain and spinal injuries. The members are well versed in cases arising from alleged failures in diagnosis and surgical errors, and regularly appear at fatal accident inquiries. The stable also houses considerable expertise obstetric negligence cases.” Our rankings include 2 “Star Individuals”, Maria Maguire KC and David Stephenson KC, with 13 further silks and 5 juniors also ranked – Simon Bowie KC, Jamie Dawson KC, Simon Di Rollo KC, Una Doherty KC, Lisa Henderson KC, Vinit Khurana KC, Archie MacSporran KC, Euan Mackenzie KC, Geoffrey Mitchell KC, Graham Primrose KC, Lauren Sutherland KC, new silks Fiona Drysdale KC and Paul Reid KC, Shane Dundas, Mark Fitzpatrick, James McConnell, Jennifer Nicholson-White and Phil Stuart.
Ampersand’s Band 1 listing in Planning & Environment states “Ampersand Advocates is well regarded for the complex planning and environmental work undertaken by its advocates. Members of the stable regularly act in judicial reviews and challenges to planning permissions, and frequently act on behalf of developers, objectors, public sector bodies and energy companies. Members are regularly engaged in high-profile matters, including those relating to large renewable energy projects. One source notes that “the quality of advice and advocacy is at the highest level”. Rankings include Malcolm Thomson KC as “Star Individual”, and Band 1 ranked Marcus McKay KC, Ailsa Wilson KC and Laura-Anne van der Westhuizen KC.
Band 2 listings include Administrative & Public Law where Ampersand is praised “highly praised practitioners who are skilled at acting in public law cases involving significant constitutional and human rights issues. They frequently appear before the highest courts in the UK and the EU.” The rankings include “Star Individual” Aidan O’Neill KC, along with Ian Forrester KC, Douglas Ross KC, Laura-Anne van der Westhuizen KC, new silk Paul Reid KC, Usman Tariq and Timothy Young.
In Civil Liberties & Human Rights Ampersand is noted as a “highly regarded civil liberties and human rights stable, known for representing both private individuals and public bodies in significant proceedings. Practitioners at Ampersand are regularly instructed by the government and the Equality and Human Rights Commission.” The rankings include Aidan O’Neill KC, Douglas Ross KC and Usman Tariq.
In Commercial Dispute Resolution Chambers state Ampersand is “admired for its skilful work in high-profile commercial disputes. The stable offers a large team comprising highly rated advocates at the senior and junior levels. The advocates are instructed on behalf of corporations and financial institutions and are involved in a variety of related areas of practice including intellectual property and insolvency.” The rankings include Robert Howie KC, Graeme Hawkes KC, Laura-Anne van der Westhuizen KC, new silk Paul Reid KC, Ross Anderson, Eoghainn MacLean, Giles Reid, Usman Tariq, Tim Young and ‘up-and-coming’ Michael Way.
Within Personal Injury “Ampersand Advocates is a highly regarded stable for personal injury matters and houses a number of dedicated senior and junior advocates. Members act for both pursuers and defenders, including several major insurers, in the full range of claims, and offer considerable expertise in the handling of catastrophic injury cases arising from road traffic and workplace accidents. The team is also well regarded for its expertise in complex product liability and occupiers’ liability disputes and matters involving accidents abroad. Recent matters include acting for the defenders in a claim concerning tetraplegia as a result of a mountain biking accident. Interviewees report: “They have a rich talent of advocates available to instruct.”
Rankings include “Star Individuals” Maria Maguire KC and Graham Primrose KC with others ranked Isla Davie KC, Simon Di Rollo KC, Lisa Henderson KC, Euan Mackenzie KC, Douglas Ross KC, Alan Cowan, Chris Marney and Jenny Nicholson-White.
The Set ranking in Professional Negligence declares “Ampersand Advocates is a leading stable for professional liability matters in Scotland. The advocates often advise and act in proceedings on behalf of and against a suite of professionals including solicitors, surveyors, architects and financial advisers.” The rankings include Paul Reid KC and Usman Tariq.
In the Set ranking for Real Estate Litigation, it exclaims “Ampersand Advocates offers a strong bench of well-regarded advocates who are active across a broad range of real estate litigation topics. The set demonstrates strong expertise in areas of overlap between commercial and real estate disputes. Members are instructed at all levels from the Supreme Court down.” Rankings include Robert Howie KC, Laura-Anne van der Westhuizen KC, Ross Anderson, Giles Reid and Tim Young.
The Construction Set ranking states “Ampersand Advocates offers significant experience in advising clients in relation to a range of building and construction works in Scotland. The bench handles a variety of contractual, delays and construction disputes, also involving defects issues. Its advocates have notable expertise in adjudications and enforcement actions, as well as construction-related bond matters. This year’s work highlights include Greater Glasgow Health Board v Multiplex Construction Europe Ltd & Others, a dispute over a multimillion damages claim in connection with the construction of the Queen Elizabeth University Hospital, Glasgow. One source says: “My instructions to Ampersand Advocates have spanned a variety of complex issues and each of the advocates instructed have provided a service of the very highest level.” Another one enthuses: “Ampersand Advocates is a strong commercial stable, with good advocates at all levels across all disciplines including construction.” Rankings include Robert Howie KC and Timothy Young.
Within Restructuring/Insolvency “Ampersand Advocates is well regarded for its handling of a wide range of restructuring and insolvency matters. The stable’s advocates are frequently instructed to represent administrators, companies, banks and insolvency office holders in complex claims involving allegations of wrongful trading and breach of fiduciary duty, among other matters. Members have experience of appearing in both domestic and cross-border matters, and are regularly called upon to act for and advise their clients on both contentious and non-contentious insolvency cases.” Rankings include Robert Howie KC, David Sellar KC, Ross Anderson and Usman Tariq.
There are further individual rankings in: Agriculture and Rural Affairs for Laura-Anne van der Westhuizen KC; Company for David Sellar KC and Tim Young; Employment for Aidan O’Neill KC; Information Technology and Intellectual Property for Usman Tariq; Product Liability for Paul Reid KC; and Tax for Ross Anderson.
The Ampersand clerks and client service again receives wide praise across all areas of practice, noting “The clerks and the advocates themselves deliver a very high-quality service” and “the Ampersand clerks provide a highly efficient service” and “all the clerks at Ampersand Advocates have been outstanding in their communication and dealings.” They are described as “very responsive and are very capable in terms of assisting with choice of counsel where help in that regard in” and being “prompt at responding to enquiries and have a good knowledge of the various advocates’ specialities and styles. As well as nothing “”All of the clerks are good. They come back almost instantly, they get everything booked, give alternative counsel if one isn’t available and help with costs.” And that “the clerks are extremely quick at responding and work with you to meet the needs of clients.”
On the recent rankings, Practice Manager, Alan Moffat, said: “This is again wonderful recognition and praise, which is a testament to the collaboration between our advocates, clerking team and those that instruct our counsel. My gratitude to all who offered their perspectives to Chambers – your time and insights are invaluable. These rankings are an affirmation that our collective pursuit of excellence and service is succeeding. We will continue striving to raise the bar even higher.”
The full rankings can be viewed on the Chambers and Partners website here.
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