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SHERIFF APPEAL COURT
[2025] SAC (Civ) 7
PIC-PN18-22
Sheriff Principal N A Ross
Appeal Sheriff R D M Fife
Appeal Sheriff B A Mohan
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL N A ROSS
in the appeal in the cause
TRACEY McGILL
Pursuer, Appellant and Cross-Respondent
against
RM PROPERTY AND FACILITIES SOLUTIONS LIMITED
Defender, Respondent and Cross-Appellant
Pursuer, Appellant and Cross-Respondent: Khurana KC; Jones Whyte LLP
Defender, Respondent and Cross-Appellant: Middleton KC, Richardson (sol adv); BTO Solicitors
LLP
5 March 2025
[1]
Ms McGill - the appellant - was employed as a part-time receptionist by the
respondent at their mail depot in Glasgow. On 23 March 2020, the date upon which the
country entered lockdown, Ms McGill took sick leave as a result of what was suspected to be
Covid-19. She was absent from 23 March 2020 until 9 April 2020, at which point she
returned to work as a key worker.
[2]
Prior to her return, managerial employees of the respondent contacted Ms McGill to
explain the different protective measures which had been instituted at the reception area of
2
the depot. These included a two-metre exclusion zone marked out with tape around the
desk, moving the signing-in book away from the desk, a one-way entry and exit system and
the provision of hand sanitiser. Such measures were consistent with the government
guidance then in force. Ms McGill decided, in advance of her return to work, to purchase a
protective screen due to her concerns about Covid-19. She wished to have the screen
installed at the reception desk of the depot to protect her, and arranged for it to be sent to
the depot.
[3]
Ms McGill's line managers made an application for the protective screen she had
bought to be installed at the reception desk. The request was refused on the basis that the
existing protective measures were deemed sufficient. Between 9 April and 30 April 2020,
Ms McGill was anxious and upset at work. She regularly complained to the respondent's
employees about the lack of a protective screen at the reception desk. Additional measures
were put in place, such as a protective barrier to enforce social distancing. Ms McGill was
also supplied with a helmet, which had a safety visor. However, she did not find it
comfortable and did not wear it consistently.
[4]
On 30 April 2020, a meeting took place between the respondent's managerial
employees at the depot, a trade union representative and Ms McGill. An explanation was
again proffered as to why a protective screen had not been installed at the reception desk.
Ms McGill was upset. As a result, she was allowed special leave to consider what she
wanted to do next. Ms McGill went on sick leave and, in the event, did not return to her
employment with the respondent. Her employment was terminated on 9 October 2020.
[5]
Ms McGill raised an action on 5 January 2022. Her position at proof and in this
appeal is that her pleadings gave fair notice of her claim, namely, that: (i) the respondent
breached the duty of care owed to her by failing to install a protective screen at the reception
3
desk, upon becoming aware of the risk to her mental health and; (ii) the respondent was
vicariously liable for bullying and harassment undertaken by their employees against her,
which amounted to a breach of the duty of care owed to her and under section 8 of the
Protection from Harassment Act 1997.
[6]
The diet of proof commenced on 28 March 2023 for 4 days, with a further 4 days in
November 2023. In March 2023, the respondent made two substantive objections to
Ms McGill's claim. Firstly, the respondent objected to the leading of any evidence in
support of any claim alleging breach of duty of care by the respondent due to a purported
failure: (i) to carry out a mental health risk assessment; and (ii) to install a protective screen.
The objection was made, firstly, on the basis that there were no averments on record to
justify such a line of enquiry. Ms McGill's case on record was restricted to allegations of
bullying and harassment alone. Secondly, the respondent submitted that Ms McGill's health
and safety expert, Ms McNeill, lacked the necessary qualifications and experience to assist
the court. The sheriff proceeded to hear the evidence under reservation of those objections,
before giving his determination on whether to uphold or repel the objection in his judgment.
The sheriff's judgment
[7]
The sheriff upheld the respondent's first objection. The clear focus of the pleadings
was that Ms McGill had been subjected to a campaign of harassment, bullying and
intimidation by the respondent's employees, and that it was this campaign that had caused
her to suffer psychiatric injury. There was no averment that the respondent ought to have
installed a screen, nor was there an averment that had a screen been installed she would not
have sustained psychiatric injury. There was no averment about the need to conduct a
4
mental health risk assessment in relation to providing a screen or that the respondent's
failure to do so had resulted in Ms McGill's psychiatric injury.
[8]
Had the sheriff accepted that Ms McGill had pled relevant averments with respect to
the failure to risk assess and install a protective screen, the sheriff explained that he still
would not have found in favour of Ms McGill. This was due to a number of factors. Firstly,
she had failed to prove that it was reasonably foreseeable to the respondent's employees that
she would develop a clinically diagnosable psychiatric disorder as a result of a protective
screen not being installed. The respondent did not owe a duty of care to Ms McGill, in the
circumstances, to install a protective screen. Secondly, even if it had been the case that it
was reasonably foreseeable she would develop a psychiatric disorder, the sheriff considered
that, at best, it would only have been foreseeable to the respondent's employees on 30 April
2020 (the date of the meeting between Ms McGill, her line managers and her trade union
representative), by which point it was too late to take any reasonable steps to avoid
Ms McGill suffering psychiatric injury. Finally, the sheriff determined there was insufficient
evidence to find that
,
even if a risk assessment had been undertaken by the respondent
,
which recommended a protective screen be installed, it would have been installed by
30 April 2020.
[9]
The consequence of the sheriff upholding the first objection was that the evidence of
Ms McNeill fell to be disregarded in its entirety. The respondent's second objection was that
in any event none of Ms McNeill's evidence should have been admissible. The sheriff
repelled the second objection. While there were certain limitations to Ms McNeill's
evidence, she had sufficient qualifications and experience to assist the court in relation to the
general health and safety issues that were contained in her report and oral evidence.
5
[10]
Having considered the remaining evidence that was admissible, the sheriff held that
the appellant's common law claim of negligence and breach of section 8 of the 1997 Act with
reference to the bullying and harassment by the respondent's employees had not been
established on the evidence.
Submissions for the appellant
[11]
Senior counsel submitted that the sheriff erred in upholding the respondent's first
objection. There were sufficient averments to put both the respondent and the court on
notice that Ms McGill contended the respondent: (i) ought to have installed a protective
screen and had failed to do so; and (ii) ought to have undertaken a mental health risk
assessment, standing Ms McGill's condition and working conditions, and failed to do so.
Senior counsel conceded that there was no direct averment that a mental health risk
assessment ought to have been undertaken by the respondent. However, it was clear from
the averments in condescendence [6] that Ms McGill averred the respondent owed a duty to
take reasonable care. Two separate cases were pled. The sheriff had taken too narrow a
view which had led him in error.
[12]
As to the respondent's determination on the second objection, which was challenged
in the cross-appeal, the sheriff was correct to hold Ms McNeill's opinion evidence
admissible. Ms McNeill had sufficient expertise to comment on the practice that should be
adopted by a health and safety practitioner within the respondent's organisation. She was
entitled to provide an opinion to the court on the use of a protective screen. In any event,
the respondent's criticisms of her evidence, if well founded, did not go to admissibility, but
were rather a question of weight for the sheriff to consider.
6
[13]
Had both objections been repelled, the evidence led at proof was sufficient for
Ms McGill to prove: (i) that there was a foreseeable risk of psychiatric harm to Ms McGill;
(ii) the foreseeability of such a risk was apparent to the respondent prior to 30 April 2020;
and (iii) that had a mental health risk assessment been carried out by the respondent, a
protective screen would have been installed prior to 30 April 2020.
[14]
As to the other ground of the respondent's cross-appeal, the sheriff was entitled to
make a finding that the respondent had failed to carry out a risk assessment based on the
evidence given by the respondent's employees and Ms McNeill.
Submissions for the respondent
[15]
Senior counsel for the respondent submitted that the sheriff was correct to uphold
the respondent's first objection. In order for Ms McGill to give fair notice to the respondent
of her case, she ought to have made a specific averment that the respondent was obliged to
undertake a mental health risk assessment and that the respondent ought to have installed a
protective screen. There had to be an averment that had such action been taken by the
respondent, Ms McGill would not have suffered psychiatric harm. Such averments were
entirely absent from the pleadings. Upon a detailed analysis of the averments made by
Ms McGill, it was apparent that her action proceeded on the basis that the psychiatric harm
she had suffered had been caused as a result of bullying and harassment by the respondent's
employees. The suggestion that other items outwith the record, such as pre-litigation
correspondence or an opposition to a specification of documents, could provide fair notice
of her case was without merit.
[16]
It had to be remembered that the diet of proof began on 28 March 2023. The
respondent's two objections were both raised during the first week of proof. It remained
7
open to Ms McGill to lodge a motion to amend to attempt to cure the deficiency in her
pleadings during that first week. No such motion was ever made.
[17]
As to the respondent's second objection, while Ms McNeill's expertise may be
relevant in certain cases, she simply lacked sufficient qualification and expertise to provide
an opinion to assist the court on the facts of this case. Amongst a number of criticisms, the
respondent contended that Ms McNeill had given generic evidence about the process of
risk-assessment; she had never officially carried out any mental health risk assessments;
she had not researched the government's Covid-19 guidelines in force at the relevant time;
and she was unaware of the protections that had been put in place by the respondent.
[18]
For her to fulfil her role as an independent expert in this case, Ms McNeill would
have had to be in a position to place herself in the shoes of a reasonably careful and
responsible employer at the material time and to draw upon any relevant personal
experience or some other reliable body of knowledge. The material time, in this instance,
was the start of the pandemic in early 2020. Ms McNeill's opinion evidence was ipse dixit
and speculative. Ms McNeill's evidence ought to have been deemed inadmissible.
[19]
If the sheriff was found to have erred in upholding the respondent's first objection, it
was clear the sheriff understood that liability for psychiatric injury only attaches where a
respondent ought reasonably to foresee the risk of the development of an actual clinically
diagnosable psychiatric disorder, but fails to take reasonable steps to avoid the same:
Hatton v Sutherland [2002] 2 All ER 1 at paras [23] and [27]. On the evidence, although the
respondent's employees were aware of Ms McGill's anxiety and stress over the absence of a
protective screen, they did not, nor could they have thought, that Ms McGill was at risk of
developing a psychiatric disorder due to its absence. The sheriff did not err. There was no
requirement for the respondent to install a protective screen.
8
[20]
Even if he had erred, the sheriff was correct that the earliest the respondent and their
employees could have had such awareness was 30 April 2020. There was no evidence of any
factor that ought to have required the respondent to take any particular action, over and
above the precautions already taken, to preserve Ms McGill's mental health prior to 30 April
2020, the date she was signed off work.
[21]
Even if there were a foreseeable risk of a psychiatric disorder, Ms McGill had failed
to prove: (i) by what date a protective screen ought to have been provided; (ii) what kind of
protective screen should have been installed; (iii) what would have happened had a
protective screen been erected; and (iv) that her psychiatric disorder would have been
avoided had such a measure been put in place.
[22]
In the event the appeal was allowed, the cross-appeal was maintained and, in
addition to challenging the sheriff's refusal of the respondent's second objection, it was also
submitted that the sheriff erred in holding that the need for a risk assessment, in the event
there was a duty to undertake one, was readily apparent based on the evidence of two of the
respondent's employees. As those employees were only aware of Ms McGill's anxiety and
stress, and no more, there was no basis upon which the sheriff could have made the finding
that he did.
Decision
[23]
The appellant accepted that there were no formal averments about risk assessment in
the pleadings. The words "risk assessment" or "mental health risk assessment" are absent
from the pleadings. The averments in condescendence 4 do not assist the appellant's
position on fair notice. As an example, averments that the appellant was
"
anxious" did not
equate to psychological harm for which the respondent could be held responsible. The
9
discussions and interactions averred on record all took place during the first weeks of the
Covid-19 pandemic in the UK, when the entire country was in lockdown.
[24]
The grounds of fault are found at condescendence 6:
"The pursuer's injury was caused by the fault and negligence of the defenders at
common law. The defenders failed in their duty to take reasonable care for the
pursuer as her employer. The defender knew or ought to have known that the
conditions of the pursuer's employment were causing, and were likely to cause,
psychiatric injury to the pursuer. The Defender's failed to take reasonably practical
measures to reduce the risk of harm. Further and in any event, the pursuer's injury
was caused by the fault and negligence of the defenders' employees for whose acts
and omissions in the course of their employment with them the defenders are
vicariously liable. Further and in any event, the pursuer's injury was caused by the
defenders' breach of the statutory duties incumbent upon them in terms of section 8
of the Protection from Harassment Act 1997..."
[25]
There is no common law case of fault on record based on a failure to carry out any
risk assessment, quite apart from a mental health assessment, or to install a protective
screen. These cases of fault are absent from the pleadings.
[26]
The appellant invited the court to put to one side the statutory ground of fault and
focus on the common law grounds of fault. That would be an artificial exercise and
inconsistent with a statutory case, which supplemented the common law case of fault based
on harassment, bullying and intimidation.
[27]
The appellant submitted the respondent had made a concession that they had fair
notice of the breach of duty case during the course of an incidental hearing on the
appellant's opposed motion for a commission and diligence. They had not sought leave of
the court to withdraw that concession. The appellant also submitted the respondent had fair
notice of the case against them by reference to pre-litigation correspondence between
parties. Further, Ms McNeill's report referred to such a ground of action.
[28]
We do not accept that submission. There was no clear concession by the respondent
at any point that they accepted there was such a case pled on record. It is not open to either
10
party to cast around for statements made, whether during pre-litigation correspondence or
during incidental procedure in the action, in order to construe fair notice of a ground of
action. The grounds of action are to be found in the averments on record. That is the whole
purpose of the record. Only the very clearest of agreements, such as in a joint minute signed
by both parties, will permit parties to innovate upon the averments on record. No such
situation arises here. There were no relevant averments, and accordingly there was no
relevant case in relation to the purported breach of duty concerning the installation of a
protective screen.
[29]
The Lothian and Borders Practice Note No 3, 2016 Personal Injury Actions states at
Part 1: General: Pleadings paragraph 3:
"While both the initial writ and statement of claim should contain only those facts
that are necessary to establish the claim, it should be borne in mind that although
brevity and simplicity of pleadings are encouraged, fair notice of the claim must be
given..."
[30]
The appellant failed to give fair notice on record to the respondent that she had
common law claims for negligence for failure to carry out a mental health risk assessment
and to install a protective screen. The sheriff did not err in upholding the objection of no
record. We shall refuse this ground of appeal.
[31]
In these circumstances, that disposes of the appeal. It is not necessary for the court to
consider the remaining grounds of appeal. The cross-appeal is no longer necessary.
[32]
Although we need not deal with the other arguments, we notice two elements of
considerable concern in this action. The first is Ms McNeill's report, which purported to
give expert guidance to the court on matters relating to medical foreseeability, but professed
and displayed no such expertise. This evidence was not competent opinion evidence.
A general awareness of health and safety guidance does not amount to expertise in
11
psychological injury. Parties have an obligation to ensure that expert evidence relates to the
specific case. It is the court which decides whether evidence results from specialist
knowledge on which it should rely, and is truly expert. The second is that this, a relatively
straightforward proof, took 8 days of court time. Senior counsel were not involved at the
proof stage. Much time appeared to be taken up in ultimately unproductive repetition of
questioning and objection to evidence. Repetition in questioning witnesses must be
exercised with discernment. Repetition in motions made to the court is rarely necessary or
justified. These appear to have significantly contributed to delay and expense in the
resolution of this action.
Disposal
[33]
We will refuse the appeal, dismiss the cross-appeal and adhere to the sheriff's
interlocutors of 4 and 26 January 2024. Parties agreed that the matter of expenses should be
reserved. Parties should attempt to agree the matter of expenses and advise the clerk of
their position. Should that not be possible within 21 days of the date hereof, the clerk will
arrange further procedure.
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