15 March 2018
In the case of D v AMEC Group Ltd [2017] CSIH 75, Scotland’s appeal court (the Inner House) considered the extent of liability for pure psychiatric harm in the context of a claim for breach of statutory duty. In D, the injured employee appealed against the decision of the judge at first instance to absolve his employer of liability following an accident at work.
He sought damages in respect of chronic post-traumatic stress disorder arising from his being trapped on the roof where he was working as a result of an outbreak of fire. He did not suffer any physical harm. His case centred on the alleged failure of the employer to ensure his safety in respect of the harm caused by the fire i.e. the psychiatric harm. Although other provisions were pled, he relied upon a breach of section 53 of the Fire (Scotland) Act 2005 and Regulation 40 of the Construction (Design and Management) Regulations 2007.
The judge at first instance held that the employer had not breached these regulations (albeit the appeal court found it was perhaps not as simple as that). It had also been argued before the trial judge by the employer that even if there had been a breach of the relevant provisions, the particular provisions at issue did not impose any liability in respect of pure psychiatric injury where there was no associated physical injury. The judge at first instance did not make a formal determination of this issue in the original judgment.
The appeal saw the employee arguing that the judge was wrong in holding there to have been no breach of statutory duty and the employer arguing that the judge was wrong in failing to hold that the statutory claims could not include psychiatric injury. The employer won the day in persuading the appeal court that the judge had not substantively erred in her findings on liability. However, that victory did not extend to securing a judgment that claims for pure psychiatric harm could not arise from a breach of the particular statutory provisions relied upon.
Had the employer’s part of the appeal succeeded, the judgment would likely have been regarded as a potentially far reaching and controversial one. It highlights, however, that careful scrutiny of regulatory provisions and their parent laws can provide compelling arguments for defenders. However, the ever decreasing field of statutory duties which can be directly relied upon by claimants might see the argument in this case ultimately regarded as a historical curiosity.
One other matter of note arising from the case is the importance of causation. The appeal court was careful to demonstrate that even a breach of duty as critical as a failure to carry out a risk assessment is of no consequence unless it can be proved that the presence of a risk assessment would have avoided the particular harm complained of. This is a useful warning against the sometimes simplistic approach of claimants in arguing that breach = damages. There is always a step in between – causation – which defenders should always carefully consider and deploy where appropriate.
Contact the Insurance team at: insurance@bto.co.uk