25 July 2019

A school teacher who was “excluded” from carrying out teaching duties after he made a claim against a local authority has failed in his bid for damages for psychiatric injury. The pursuer was an employee of a University College who had entered into an agreement with defenders, North Lanarkshire Council, whereby the Pursuer would carry out teaching duties once a week at one of their schools. The pursuer had been doing so for approximately 10 years.

In March 2017, the pursuer was injured at the school when his foot became caught in a crack in a paving slab and he fell. He intimated a claim for damages as a result of the incident. In August 2018, the defenders advised that the pursuer was not permitted to return to the school because of the outstanding claim. As a result of that decision, the pursuer claimed to have suffered stress and anxiety causing a psychological condition. In subsequent litigation, he sought damages for both the physical injuries he suffered in 2017 and for the psychiatric injury he sustained in 2018 as a result of his “exclusion” from the defender’s school.

The case was appointed to a debate where the defenders argued that any psychiatric injury was not causally connected to and was too remote from the accident in 2017. The crucial point was that the pursuer’s own case attributed the development of stress and anxiety to the response of the defender to the pursuer’s intimation of a claim as opposed the index accident itself.

Sheriff McGowan determined that the ultimate test in deciding whether this aspect of the claim could proceed was whether the damage was “reasonably foreseeable”. The test is applied “through the eyes of the “reasonable man” at the point when the putative cause of the damage complained of occurred”. Accordingly, what was relevant was the defenders state of knowledge as in March 2017. The Sheriff surmised that the pursuer’s case was that the defenders were negligent in March 2017 and therefore responsible not only for the physical injuries sustained immediately thereafter, but also for the psychological injury which occurred in the autumn of 2018.

The Sheriff explained that whilst establishing factual causation was essential, it was not the same as meeting the test of legal causation. The argument turned on what was reasonably foreseeable to the defender's in March 2017. The Sheriff accepted that were it not for the accident, the pursuer would not have sustained injury, nor would he have intimated a claim and accordingly, he would not have found himself “excluded” by the defenders. That, however, was not enough to meet the legal test of causation.

In considering causation, the Sheriff acknowledged that the substantial period of time between the accident and the onset of the psychiatric injury (some 15 months) would go some way to breaking the chain of causation. Furthermore, the pursuer himself attributed the onset of the psychological injury to the decision to “exclude” him rather than to the index accident. There were two relevant factors (1) the number (and nature) of the links in the “causal chain” and (2) the time frame within which those steps occurred.

The Sheriff took the view that the chain of events could not have been reasonably foreseeable to the defenders, particularly given the substantial time period between the index accident and the psychiatric illness. Accordingly, the Sheriff held that the pursuer was not entitled to claim for his psychiatric condition and this aspect of his claim was struck out.

The decision is a welcome reminder that factual causation alone is not enough and that legal causation with sufficient proximity to a negligent act must be shown in order for a pursuer to succeed to recover damages. The case reiterates the well-founded principle that a defender will only be found liable where loss, injury or damage was reasonably foreseeable at the time that an incident occurred

 Contact: Jennifer Mackenzie Associate jmk@bto.co.uk T. 0141 221 8012