Teacher’s damages claim for ‘psychiatric injury’ after being ‘excluded’ from school dismissed
A teacher who was “excluded” from a school after raising a personal injury action against a Scottish local authority following a fall at work, and then sought damages for a “depressive illness” he sustained as a result, has had his claim for “psychiatric injury” dismissed.
Brian Miller claimed that he suffered “stress and anxiety” after being told by North Lanarkshire Council that he could not resume his teaching duties while his personal injury claim was being investigated, but the local authority argued that any mental condition he had developed was “too remote” from the accident.
A sheriff in the All-Scotland Personal Injury Court ruled that the parts of the pursuer’s case relating to psychiatric injury were irrelevant, and therefore would not go to proof.
Sheriff Kenneth McGowan heard that the pursuer, an employee of Scotland’s Rural University College (SRUC), had been attending a primary school operated by the defender about once a week for about 10 years in order to carry out teaching duties there, under a “Partnership Agreement”.
On 20 March 2017, the pursuer was at one of the defender’s schools when his foot went into a crack in a paving slab, which caused him to lose his balance and fall, whereupon he sustained certain physical injuries, following which he intimated a claim for damages to the defender.
In August 2018, the defender indicated to the pursuer’s employers that because of the pursuer’s outstanding legal claim against it, a “holding position” would be put in place, to the effect that the pursuer was not to return to any of its schools.
As a result of that, the pursuer suffered stress and anxiety and thereafter developed a psychological condition.
He sought damages for the physical injuries he suffered in 2017 and for the consequences of the psychiatric injury he sustained in 2018 as a result of his “exclusion” from the defender’s school.
However, the defender argued that the averments based on psychiatric injury should not be remitted to probation.
It was submitted that on the pursuer’s pleadings any psychiatric illness that he had developed was “not causally connected” to and was too remote from the index accident on 20 March 2017.
In particular, the defender relied upon the averments that the “holding position” put in place by the defender prohibited the pursuer from fulfilling the duties incumbent upon him under the Partnership Agreement; that this had caused the pursuer stress and anxiety and the development of a psychiatric illness; and that the pursuer had suffered a detriment by exerting his right to raise a personal injury claim.
The pursuer, on his own pleadings, attributed the development of stress, anxiety and psychiatric illness not to the circumstances of the index accident, nor to the physical injury suffered by him as a result of the index accident nor to the reaction of the defender to the index accident, but to the reaction of the defender to the pursuer’s intimation of a claim against it in respect of the index accident.
The pursuer also sought to argue that notice had been given of why it ought to have been reasonably foreseeable by the defender that the pursuer would suffer a psychiatric injury by reference to the averments to the effect that he had been signed off work since 1 October 2018 and had attended an occupational health appointment which had concluded that he was unfit for work, but those averments related to the period after the decision had been taken to exclude him.
But the pursuer argued that the case advanced was clear: he sustained loss, injury and damage as a result of the index accident in March 2017.
The injuries sustained by the pursuer were not limited to his physical injuries; the pursuer averred that he had suffered psychiatric injury as a result of the index accident.
It was not accepted that there was an insufficient nexus in the pleadings between the index accident and the pursuer’s development of stress, anxiety and psychiatric illness so as to allow a causal link to be established.
On the balance of probabilities, the alleged negligence caused the damage – that was a question of fact.
The pursuer’s psychiatric injuries were the response to the “holding position” adopted by the defender, a product of the index accident.
The defender offered no other explanation as to why the holding position was adopted in other words, on the balance of probabilities, but for the index accident there would have been no holding position and therefore no psychiatric illness.
It was trite law that a claim would only be dismissed on the grounds of relevancy if it was bound to fail even if all of the pursuer’s averments were upheld; the pursuer’s averments were to be treated as “pro veritate” for the purposes of a debate.
The pursuer had pled a “relevant case” such as would entitle him to a hearing on the evidence on the pleadings as currently presented.
‘Not reasonably foreseeable’
However, the sheriff held that the averments under attack were “irrelevant”.
In a written judgment, Sheriff McGowan said: “If the pursuer had not had his accident in March 2017 he would not have been injured, he would not have been off work, he would not have made a legal claim against the defender and what became in the course of the debate to be called his ‘exclusion’ by the defender would not have occurred. But while the establishing of factual causation in the foregoing manner is essential, it is not the same as meeting the test of legal causation.
“A defender is not liable for consequences which are too remote and the question of remoteness is to be evaluated according to what was reasonably foreseeable at the time that the alleged legal wrong occurred. In other words, it was what was within the contemplation of the defender as being reasonably foreseeable at 20 March 2017 which must be examined.
“Two factors are particularly relevant here: the number (and nature) of the links in the ‘causal chain’ and the time frame within which those steps occurred.
“The defender would have to have foreseen that the pursuer, having been injured by an accident at the defender’s premises in March 2017, would have sought legal advice and intimated a claim. I think those matters were eminently foreseeable.
“But things become less clear when it is said that the defender should have foreseen that it itself would have (on some basis or another) taken the decision to implement a ‘holding position’ which the pursuer’s line manager would have interpreted as a prohibition on the pursuer returning to schools operated by the defender; and that the pursuer as a result of that decision would have developed a psychiatric illness.
“In my opinion, that sequence of events was not reasonably foreseeable, particularly as they occurred long after the index accident.”
He added: “In the present case, the pursuer does not seek to say that the decision to exclude him was a legal wrong (ie it is not said that there is a separate cause of action); and in terms of his own pleadings attributes the onset of the psychiatric injury not to his accident in March 2017, but instead to the decision taken to exclude him in August 2018.
“In the circumstances, I am satisfied that parts of the pursuer’s case under attack in the debate before me are irrelevant and that accordingly the averments complained of should not be admitted to probation.”
The sheriff ordered the pursuer to lodge an amended record and allowed the parties a four-day proof on the remaining averments.
© Scottish Legal News Ltd 2020