Harassment cases brought under the Protection from Harassment Act 1997 (the “1997 Act”) are on the rise. As we saw from the Article “More Stress on Employers” which appeared in the February 2007 Edition of BTO Insight, in harassment cases it is necessary for the pursuer to show that the harassment resulted in a diagnosable psychiatric injury. How relevant though is the point at which the Pursuer becomes aware of the seriousness of her psychiatric injury? A recent Court of Session Outer House decision in one such case reflects some of the differences between harassment actions and other actions of damages for personal injuries when it comes to time-bar considerations. The case is that of Margaret Gennelli Malcolm v Dundee City Council [2007] CSOH 38, heard by Lord Emslie.
Ms Malcolm claimed that she was subjected to harassment, bullying and abuse by two fellow members of staff at the school to which she was transferred in 1996. Her Counsel accepted the Defenders’ contention that the action was on the face of it time-barred under Section 18B of the Prescription & Limitation ( Scotland ) Act 1973 (the “1973 Act”) but nevertheless he invited the Court to exercise its discretion under Section 19A of the 1973 Act to allow the action to proceed.
Section 18B of the 1973 Act was inserted by Section 10 of the 1997 Act. It provides at Section 18B (2) that the harassment action has to commence within a period of three years after (a) the date on which the alleged harassment ceased; or (b) a later date when either the Pursuer became aware that the Defender was responsible for the alleged harassment or in the Court’s opinion it would have been reasonably practicable for the Pursuer to have been aware that the Defender was so responsible.
Lord Emslie noted that in contrast to the time-bar provisions for other actions of damages for personal injuries contained in Section 17(2) of the 1973 Act, Section 18B (2) did not permit the running of the three year limitation period to be delayed by a Pursuer’s justifiable ignorance of the seriousness of her injuries.
In accepting the case was time-barred, Ms Malcolm’s Counsel bore in mind that Section 18B(2)(a) appeared to focus on the date when any actionable conduct ceased, rather than on the date when harm was suffered by the Pursuer.
Ms Malcolm stated in her pleadings that she did not realise that she was suffering from a recognised psychiatric injury until a certain stage. On this, the Defenders’ Counsel accepted that it was open to Ms Malcolm to aver when she became aware of the seriousness of her condition in her seeking to invoke section 19A of the 1973 Act. However, it had to be borne in mind that Parliament had excluded any such issue from consideration under Section 18B. In all the circumstances here, Lord Emslie decided that Ms Malcolm’s action did not merit invoking Section 19A and her action was dismissed.
The case highlights that in harassment actions, in determining the three year period, when the Pursuer becomes aware that she has a recognised psychiatric injury is not the issue. While that may be relevant as a factor in seeking relief under Section 19A of the Act, essentially the focus is the date when the alleged harassment ceased or the date when the Pursuer became aware that the Defender was the responsible party. In other actions of personal injury though, justifiable ignorance of the seriousness of the Pursuer’s injuries is a relevant factor.
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Ray Gribben
(Information posted in July 2007and may not have been updated at time of reading).