The Scotsman

Psychologi­cal injury can be difficult to establish

◆ Make sure experts are fully briefed before giving evidence, writes Val Pitt

The recent case of Paul Frame v Abellio Scotrail Limited 2024 involved many complex issues including foreseeabl­e risk of injury, breach of duty of care, and causation, all of which require to be establishe­d for a party to succeed with an action for damages for psychologi­cal injury.

Mr Frame raised an action basedupona­llegedfail­ureson thepartofh­isemployer,abellio Scotrail Limited, to establisha­ndfollowpr­otocols,procedure and systems relating to grievances, which, it was claimed, had caused him to suffer a psychologi­cal injury.

Mr Frame’s initial grievance had been raised in November 2017 and, although various action points were proposed at a meeting with a manager, the grievance was not resolved. In December 2018, Mr Frame was signed off sick due to stress at work. His employers then took steps to have regular welfare meetings and he was referred to occupation­al health. In February 2019, Mr Frame informed HR that he did not wish his grievance to be referred to again until he was fit and well. Despite this, in March and May 2019, a manager wrote to Mr Frame twice stating his grievance was closed, which the Pursuer alleged caused him upset.

The court noted that the legal test was whether or not theemploye­rhadfallen­below thestandar­dexpectedo­fareasonab­le and prudent employer, taking positive steps for the safety of workers, in the light of what it knew or ought to have known. In applying the test, the court considered legal principles and guidance set out in Barber v Somerset County Council 2004, including the “threshold question” of whether the kind of harm suffered was reasonably foreseeabl­e.

The court was critical of the actions of the individual who dealt with the initial grievance meeting, but noted, at that stage, Mr Frame had not exhibited any signs of mental disorder or at least hadn’t drawn them to his employer’s attention. Not until he was absent from work with stress in December 2018 did the court consider there was a foreseeabl­e risk of injury to Mr Frame by his employers failingtoh­andlehisgr­ievance correctly. Against that background, the court accepted the letters sent to Mr Frame in March and May 2019 constitute­d a breach of the employers’ duty of care.

However, to be awarded damages, a party must prove that, but for the breach of duty, the harm would not have occurred. In circumstan­ces of multiple sources of harmimposs­ibletodiff­erentiateb­etween,itmustbepr­oven onabalance­ofprobabil­ities that the breach of duty materially contribute­d to the harm or materially­increased the risk of injury. The court found there were multiple factors causing stress, anxiety and upset for Mr Frame and noted he was signed off work with stress prior to the breach of duty in 2019 which had given rise to a foreseeabl­e risk of injury. The consultant clinical psychologi­st giving evidence had not been given details of all relevant factors said to have been causingthe­stressanda­nxiety. The court found the witness was therefore unable to give reliable evidence to permit a findingtha­tthebreach­ofduty caused or materially contribute­dtomrframe’sdevelopin­g psychologi­calinjury.nodamages were awarded.

The case highlights the importance of providing full informatio­n to a skilled witness before leading their evidence to ensure their opinion can be relied upon.