Ward v Scotrail Railways Ltd

Factual and Procedural Background

The Plaintiff has been employed by the Defendant since 1990 as a ticket inspector based at a station in The City. Another employee of the Defendant, an individual referred to as Mr Kelly, worked as a clerk at the same station. Around 11 October 1995, the Plaintiff received a letter from Mr Kelly containing sexually suggestive content, which she found offensive and reported to her supervisors. The Plaintiff subsequently spoke directly to Mr Kelly to tell him to leave her alone.

Following this, Mr Kelly sent a note including a diagram of the Plaintiff's work route, which was not part of his duties. The Plaintiff felt intimidated and complained a second time, receiving reassurances that Mr Kelly would be warned. Mr Kelly then engaged in conduct including staring at the Plaintiff, swapping shifts to work alongside her, and leaving further notes indicating his knowledge of her whereabouts during shifts.

In May 1996, Mr Kelly left another letter implying the Plaintiff's presence affected his work. The Plaintiff made a formal complaint of sexual harassment to the Defendant's Customer Services Manager, who investigated and offered counselling and supervisory support, though the latter was not provided. The Plaintiff eventually went off sick on 30 June 1996 due to emotional distress caused by the ongoing situation and the Defendant's failure to resolve it.

After returning to work in November 1996, the Plaintiff continued to suffer psychological difficulties related to Mr Kelly’s presence and was relocated to another station, causing additional travel expenses and inconvenience. The Defendant initially refused to reimburse these expenses, requiring the Plaintiff to go through a grievance procedure. The Plaintiff’s trade union intervened in July 1997, leading to her reinstatement at the original station and Mr Kelly’s transfer elsewhere.

The Plaintiff commenced this action seeking damages against the Defendant for their own fault, vicarious liability for Mr Kelly's conduct, and breach of contract, alleging psychiatric injury and loss resulting from the harassment.

At a preliminary hearing, the court heard submissions from both parties regarding the relevancy of the claims and the scope of proof. The Plaintiff sought to proceed to proof before answer and to amend pleadings, while the Defendant sought dismissal or exclusion of certain claims and averments.

Legal Issues Presented

1. Whether the conduct alleged against Mr Kelly constitutes an actionable civil wrong under the law of delict.
2. Whether the Defendant is vicariously liable for the conduct of Mr Kelly.
3. Whether the Defendant breached contractual obligations, including incorporation of a harassment policy into the Plaintiff’s contract and specific supervisory duties.
4. The scope and nature of damages recoverable for psychiatric injury arising from harassment.
5. The relevancy and admissibility of various averments and pleadings for proof.

Arguments of the Parties

Defendant's Arguments

• The Defendant argued the conduct alleged was insufficiently serious to be actionable as a delictual wrong.
• They contended that individual incidents should be considered in isolation and found not to foreseeably cause harm.
• The Defendant submitted Mr Kelly’s conduct was outside the course of his employment, thus negating vicarious liability.
• They argued the Plaintiff failed to prove incorporation of the harassment policy into the contract and that damages for psychiatric injury were not recoverable in contract.
• They sought exclusion of certain pleadings and averments from proof for irrelevancy or improper expression.

Plaintiff's Arguments

• The Plaintiff submitted that the Scottish concept of injuria is flexible enough to encompass the alleged conduct as wrongful.
• She argued the Defendant owed a duty of care analogous to employer liability in negligence cases and cited relevant case law supporting recovery for psychiatric injury.
• The Plaintiff invited the court to allow proof on the vicarious liability claim, suggesting possible development of the law and implied authorisation through the Defendant's failure to act promptly.
• She asserted the harassment policy was incorporated into her contract, given her awareness and continued employment after its introduction.
• The Plaintiff sought amendments to pleadings to clarify contractual terms and opposed exclusion of her pleadings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognised that the alleged conduct of Mr Kelly, while less severe than in some precedent harassment cases, constituted a course of conduct with a cumulative effect potentially causing psychiatric injury. The court noted that emotional distress alone is insufficient for delictual claims unless it amounts to a recognisable psychiatric illness, which the Plaintiff alleged.

The court accepted that the Defendant owed a duty of care as an employer and that the Plaintiff’s averments of negligence and breach of this duty could not be dismissed without proof. The Plaintiff’s complaints and the Defendant’s responses, including inadequate measures to protect her, established an arguable case of employer fault.

Regarding vicarious liability, the court concluded that Mr Kelly’s conduct was a personal venture outside the scope of his employment and therefore the Defendant was not vicariously liable. The absence of pleadings alleging implied authorisation by the Defendant further weakened this claim, leading to its exclusion from proof.

On the contractual claim, the court found it premature to rule out incorporation of the Defendant’s harassment policy into the Plaintiff’s contract without evidence, especially given the policy’s formal nature and obligations imposed on management. The court also considered that damages for psychiatric injury could be recoverable in contract, contrary to the Defendant’s submission.

The court allowed certain amendments to pleadings and excluded some averments from proof due to irrelevancy or imprecision but generally favoured allowing the case to proceed to proof before answer to enable full examination of the issues.

Holding and Implications

The court repelled the Defendant’s general plea to dismiss the action and the plea excluding the Plaintiff’s direct claims based on the Defendant’s own fault and breach of contract.

The court sustained the Defendant’s plea excluding the averments of vicarious liability relating to Mr Kelly’s conduct, removing that aspect from the scope of proof.

The court allowed the Plaintiff to amend pleadings to admit awareness of the harassment policy and granted leave for a proof before answer on the remaining issues.

The decision allows the Plaintiff’s claims of employer negligence and breach of contract to proceed, but excludes the vicarious liability claim based on current common law principles. No new precedent was established, but the court acknowledged the complexity and potential for legal development in harassment and privacy-related claims.