Former fiscal granted full hearing in £1.3m damages claim against Lord Advocate for ‘stress at work’

A former procurator fiscal who is suing Scotland’s top law officer for £1.3 million for “work-related stress” she is alleged to have suffered as a result of her employment with the Crown Office and Procurator Fiscal Service (COPFS) has been granted a full hearing of the merits of her claim.

 

A judge in the Court of Session rejected arguments by the Crown Office to have the action dismissed as “irrelevant” after ruling that the pursuer’s pleadings were “sufficient” to allow a proof before answer.

 

 

Temporary Judge Robert Weir QC heard that the pursuer Laura Malone raised a damages action for “psychiatric injury” against the Lord Advocate James Wolffe QC based on the alleged “fault and negligence” of the COPFS, for whom the Lord Advocate was said to be “vicariously responsible”, over the conditions of her employment as a member of the fiscal service between May 2010 and February 2013.

 

The pursuer, a former senior procurator fiscal depute who worked for the COPFS for 20 years, suffered an “episode of stress at work” in 2001, following which she was transferred to the District Court, where she “enjoyed working” working for the defender, was continuously being assessed as being “effective, efficient and exceeding requirements in the roles she was given”, and found the work “rewarding and stimulating”.

 

However, between May and November 2010 the pursuer, who was now working in the Crown Office Health and Safety Unit (HSU), complained about the “structure and caseload” of the unit and claimed that the “pressures” of working in the COPFS departments were likely to occasion harm, including psychiatric harm, to employees, which should have been “obvious” to the defender, adding that pressures had a “serious impact” on the morale of staff and left them feeling “stressed and undervalued”.

 

She averred that she sought transfer from the HSU “for fear that exposure to the unit’s culture was adversely affecting her health”.

 

The pursuer further claimed that, in April 2011, while working as the lead in the Forensic Gateway Unit (FGU), whose remit was to process all crimes requiring forensic examination, and to ascertain whether analyses were achievable, proportionate, and necessary for proof of alleged crimes, she made repeated complaints about “unsustainable workload and inadequate staffing”.

 

 

Moreover, between 2010 and 2013, the COPFS had an employee Stress Management Policy, in terms of which each employee should have been the subject of an individual stress risk assessment, but no such assessment was carried out in the pursuer’s case.

 

The pursuer claimed that the defender knew or ought to have known “at the material time and in any event in or before April 2012” that she was suffering from a “recurrent depressive disorder” which resulted in her not being able to return to professional legal or other work, with consequential loss, and that the defender breached his duty of care.

 

However, the defender submitted that, for her claim to succeed, the pursuer must aver and prove that there were steps which could and should have been taken prior to April 2012 which would have prevented the occurrence of that disorder, but it was argued that she failed to do so.

 

It was also submitted that the case against the Lord Advocate, based on “vicarious liability” for breaches of duty on the part of the COPFS, was not one of vicarious liability at all, as there were no averments that the Lord Advocate, at the material time, was provided with any information about the situation in the HSU or FGU, or about any of the problems the pursuer was experiencing there. 

 

In term of foreseeability and causation, it was argued that there was no basis from which the court could be satisfied that it was reasonably foreseeable to the defender that the pursuer was at risk of psychiatric harm during her employment in either the HSU or the FGU.

 

 

The judge observed that the pursuer’s pleadings were “not a model of clarity” but considered that it would be wrong to dismiss the action on this basis alone.

 

In a written opinion, Judge Weir QC said: “What, as I understand it, the pursuer offers to prove is that her work conditions were such that, by April 2012, she had contracted a depressive disorder. She made no connection between the symptoms of that disorder and her conditions of employment until February 2013. 

 

“In the period between the commencement of the disorder and February 2013, the pursuer’s employers did nothing to address the issues of work overload which had been a consistent feature of the pursuer’s employment since 2010, despite her exhibiting behaviour of a kind which was included amongst the list of potential stressors identified in the COPFS Stress Management Policy. Had they undertaken an individual risk assessment at any time during the pursuer’s employment within the HSU and the FGU, the problems of the pursuer in coping with work overload there would have been identified and addressed. 

 

“In any event, a stress risk assessment undertaken in or about April 2012 would have identified steps, of the kind averred in condescendence 12 (p45) which, if implemented before February 2013, would have produced a situation in which the pursuer would have been able to continue working, in some capacity, within the Crown Office. Standing the date of onset of her condition, the pursuer’s case, as so framed, may face considerable challenges at proof. At this stage, however, I am unable to hold that it is a case that is bound to fail.”