Teacher’s personal injury action against Scottish council to proceed after judge rejects ‘personal bar’ claim

The local authority argued that the teacher was “personally barred” from the raising the civil action after she signed a compromise agreement to settle the employment tribunal claim, but a judge in the Court of Session ruled that an exclusion clause exclusion in the agreement meant she was not prohibited from bringing a claim for damages for personal injury.

‘Work-related stress’

Lord Mulholland heard that the pursuer Jennifer Troup was employed by the defenders West Lothian Council as a primary school teacher between 2004 and 12 May 2017.

She raised a personal injury action seeking damages after suffering a major depressive disorder with anxiety as a result of the defenders’ alleged breach of their duty of care.

The pursuer claims that the defenders knew or ought to have known that she was at risk of psychiatric injury by reason of “work-related stress” and that they “failed to take reasonable care for her mental health”. 

But the court was told that prior to raising the action the pursuer had also lodged a claim against the defenders at the employment tribunal, seeking compensation for “loss, injury and damage” in respect of her psychiatric injury.

In the tribunal claim, which was brought under the Equality Act 2010, she averred that she had suffered “discrimination” by reason of her disability, that the defenders had “failed to make reasonable adjustments”, and she suffered “harassment” as a result.

The claim was settled following involvement from the Advisory, Conciliation and Arbitration Service (ACAS) by way of a compromise agreement, which required the defenders without admission of liability to pay a specified sum of money.

The agreement stated at paragraph 1(a)(ii)) that the sum of money was compensation, including loss of employment, in full and final settlement of the employment tribunal claim and all and any claims which the claimant had or may have in the future against the respondents whether arising from her employment with the respondents or its termination on 12 May 2017, including but not limited to, claims under contract law, the Equality Act 2010, the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Disability Discrimination Act 1995, and the Employment Rights Act 1996, as well as other work-related regulations.

However, the agreement also contained an exclusion clause at paragraph 1(a)(iii), which caveated the preceding paragraphs by excluding “any claim related to accrued pension rights and any claim for damages for personal injury which may be brought within the ordinary civil courts of Scotland arising from circumstances occurring prior to 12 May 2017”.

‘Compromise agreement’

The defenders sought dismissal of the Court of Session action on the basis that the pursuer was “personally barred” from bringing the claim for damages by the compromise agreement.

It was argued that the pursuer had sought compensation in her claim before the employment tribunal, but both the tribunal claim and the present action related to the “same conduct of the same employees over the same time frame”. 

The defenders submitted that the pursuer had settled her claim for damages in respect of psychiatric injury and as a result she was personally barred from suing the defenders in respect of the same injury arising from the same circumstances. 

It was argued that the exclusion clause was “ambiguous” and should be “narrowly construed” to only apply to claims not settled by the compromise agreement, namely damages in respect of any injury sustained in her employment, apart from psychiatric injury, such “a fall from height, an assault by a co-worker and slips and trips”.

In response, the pursuer submitted that employment tribunals had the power to award financial compensation for breaches of the Equality Act 2010 which cause physical or psychiatric injury, including harassment related to disability, discrimination by reason of disability and failure to make reasonable adjustments in respect of disability. 

It was submitted that the compromise agreement should be construed in accordance with the ordinary principles of construction of a contract, and that the wording of the exclusion clause was “clear and unambiguous”. 

The agreement excluded any claim for damages for personal injury which may be brought within the ordinary civil courts of Scotland arising from the circumstances occurring prior to 12 May 2017. 

It was argued that the compromise agreement was not intended to settle each and every aspect of the pursuer’s claim - had the defenders wished to achieve the result now sought, it should not have accepted the exclusion clause in the terms agreed. 

The pursuer submitted that the compromise agreement had value to both parties to it - the payment of compensation in settlement of the employment tribunal claim ended the claim of disability discrimination, which ended the risk of the tribunal making a finding against the defenders and any “reputational damage”.

There was “no unfairness” in the present action and there were “no inconsistencies” between the present action and the compromise agreement.

‘Exclusion clause’

The judge rejected the defenders’ plea of personal bar after ruling that there was “no ambiguity” in the wording of the exclusion clause. 

In a written opinion, Lord Mulholland said: “The agreement specifies the payment of compensation, including the claimant’s loss of employment, in full and final settlement of the claim and all and any claims which the claimant has or may have in the future against the respondents whether arising from her employment with the respondents or its termination on 12 May 2017. 

“Paragraph 1(a)(ii) then specifies that this includes, but is not limited to, claims under contract law, European Communities law and a series of statutes which are detailed in paragraph 4 above. If the exclusion clause (1(a)(iii)) did not exist the compromise agreement would clearly cover the present action. 

“However, the agreement includes an exclusion clause… The clause excludes ‘any claim for damages for personal injury which may be brought within the ordinary civil courts of Scotland from circumstances occurring prior to 12 May 2017’. The ordinary and natural meaning of this wording is that it does exclude a claim for damages for personal injury brought within the civil courts from circumstances which occurred prior to 12 May 2017. 

“In my view this provision could not be clearer. It contains no ambiguity and there is no room for doubt as to what it means. The present action is a claim in a civil court in Scotland. It claims for damages for personal injury and arises from circumstances which occurred prior to 12 May 2017. Applying the wording of the exclusion clause to the present action, it is clearly excluded from the terms of the compromise agreement.

“The defenders argue that it does not exclude the present case and the wording of the exclusion clause would apply only to actions brought in respect of slips and trips, falls from height and assaults by fellow workers. If it was meant to be so restrictive then it would surely have been drafted accordingly.”

The judge disagreed with the defenders’ argument the pursuer’s interpretation of the clause would render the compromise agreement meaningless, as the settlement was “advantageous” to both parties, adding that there was “no inconsistency” between the terms of the compromise agreement and the present action.

He also rejected that defenders’ argument that the employment tribunal claim and the present action were based on the same set of circumstances within the same timeframe. 

Lord Mulholland said: “It was submitted that these are the same actions. However, this argument fails to recognise that the claim was based on allegations of disability discrimination and harassment under the 2010 Act for which the employment tribunal is the appropriate place to make such a claim. These are statutory wrongs.

“The claim and the present action are rooted differently. The present action avers negligence, fault and breach of contract the legal basis of which is the common law.

“If the pursuer succeeds in her present action she will be entitled to reparation for the fault, injury and damage through the fault and negligence of the defenders. These actions are clearly different in nature.”