text:
delivered by LORD GLENNIE
in the cause
Pursuer and Reclaimer;
Defenders and Respondents:
Pursuer and Reclaimer: Summers, QC, Olson; Drummond Miller LLP for JAS S Grosset, solicitors, Leven
Defenders and Respondent: Milligan, QC, Sheldon; Dundas & Wilson, CS
14 March 2013
[1] In this action the pursuer, who was employed by the Scottish Prison Service ("SPS"), sues for breach of a duty of care which he alleges was owed to him in the immediate aftermath of an incident at HM Prison Barlinnie on 3 August 1997. The defenders are the Scottish Ministers, who are responsible for the failings of SPS. After a 9 day proof restricted to issues of liability, the Lord Ordinary (Brodie) assoilzied the defenders from the conclusions of the summons. He held that although SPS owed the pursuer a duty of care to see that he was offered early counselling and support of the sort that could be provided by the prison's internal unit established to deal with traumatic incidents in the workplace (the Barlinnie Care Team), it was not in breach of that duty; and that, even if SPS was in breach of duty in the manner alleged, the pursuer had failed to establish causation.
[2] The pursuer now reclaims. He challenges a number of the Lord Ordinary's findings of fact in relation to breach and causation.
[3] In the course of the hearing we invited parties to depart from the usual order of speeches and address us first on matters relating to causation before moving on, if necessary, to deal with breach of duty. This resulted in junior counsel dealing only with causation in their speeches. When senior counsel came to speak, they addressed us on both issues, combining a second speech on causation with a first (and only) speech on breach of duty. We are grateful to all counsel for their willingness to accommodate our wishes. We are also grateful to them for their helpful and detailed written Notes of Argument under reference to which they made their submissions.
The facts in outline
[4] At about 3.30pm on Sunday 3 August 1997 the pursuer was working in the course of his employment with SPS as a prison officer at Barlinnie when a fight broke out between an inmate ("C") and a fellow prisoner. C was injured in the fight and was bleeding from the face. The pursuer intervened in order to break it up. As he did so, C shook his head and some of C's blood entered the pursuer's mouth, sufficient in quantity for the pursuer to taste it. He believed that he might have swallowed some. He said as much to a fellow officer, Mr Gibb, who replied, referring to C, "He is a junkie, I would get myself checked if I were you". The pursuer inferred from that that C was an intravenous drug user and therefore quite probably infected with Hepatitis C, the HIV virus or AIDS. He immediately became fearful that he might contract one of those diseases because of having ingested C's blood and that in consequence he would die.
[5] The pursuer decided to go to the prison medical centre and told his supervisor, Mr Mackie, that he was going. At the medical centre he was seen by the clinical manager, Sharanne Cassidy. He explained that he had swallowed blood from "a junkie" and asked what was to happen. It was the pursuer's evidence that Miss Cassidy told him: "Do not worry about it, there is a million to one chance that you will catch something" and that she explained that the virus would have "died" travelling in the air from C to him. Miss Cassidy gave him an antiseptic chlorhexidine mouthwash. In accordance with her standard practice she advised the pursuer to contact his general practitioner. Her role in relation to prison staff was limited to giving first aid.
[6] The pursuer was not reassured by what he understood Miss Cassidy to have told him about the million to one chance and the virus having died. He spent the rest of the day trying to spit out any remaining blood from his mouth. He returned to A Hall for lock up at 5pm and then went back to Rutherglen where he was living alone.
[7] Early on Monday 4 August the pursuer took steps himself to arrange an appointment for a blood test at the Infectious Diseases Clinic at Ruchill Hospital ("Ruchill") in Glasgow.
[8] The Lord Ordinary described Ruchill as being at that time the primary centre in Glasgow for treatment of HIV and AIDS and the best source of authoritative advice on the risk of infection with blood-borne diseases. It provided a confidential testing service for those concerned that they might have been exposed to or infected by blood-borne viruses including HIV and Hepatitis C. That service included pre and post-test discussion and provision of information about the nature of the potential risk of blood-borne virus infections; the severity of that risk in relation to the particular patient in light of the history obtained from the patient; the procedures for the screening of the patient for blood-borne infections; the potential results of the screening tests for these infections together with information on the meaning of the potential results; the implications for the patient of a positive result for each of the blood-borne infections referred to including the potential impact on the patient's physical and mental health and social and financial circumstances; the management, support and treatment available to the patient in the event of a positive test; the obtaining of informed consent to have the screening test carried out; and the making of arrangements to have blood samples taken and appointments for the results of blood tests to be given.
[9] The pursuer attended at Ruchill on Wednesday 6 August 1997 and on five occasions thereafter. The Lord Ordinary found that it was likely that at Ruchill he was provided with or offered all the services available to those who attended the clinic by reason of their being concerned about exposure to a blood-borne virus. He would have been advised when he first went there that there was a very low risk of him having been infected by contact with C's blood (even if C himself was infected). Testing subsequently established that he had not been infected either with HIV/AIDS or hepatitis. However, because of the relevant incubation periods, he had to wait for three months and six months respectively for these results. He received the hepatitis B and C results on his last appointment on 5 February 1998 and was discharged from the clinic on that day.
[10] The pursuer did not like attending Ruchill because it was "full of junkies" and he wanted to spend as little time in the clinic as possible. In addition, he was angry with his employers. He considered Miss Cassidy's response to have been inadequate. He felt that he should have been referred to an outside hospital whereas all she had provided him with was a mouthwash. He had expected someone "from management" to speak to him but there was "not a thing on the Monday" (4 August). When he attended at Mr Lamont's office the following day - Mr Lamont was the pursuer's unit manager - Mr Lamont indicated that he knew what had happened and said that there should have been a procedure set up for such occurrences; but otherwise the pursuer's impression was that Mr Lamont was not interested. The following week, on Monday 11 August, the pursuer went to his general practitioner, Dr Barrett, and was certified unfit for work by reason of sickness for a period of two weeks. The pursuer explained that he felt let down with the way he had been treated by SPS. He could not cope with the idea that he had been abandoned by it. His impression was that he was considered to be "a big fat prison officer" who would shrug the matter off whereas he did not. It was as if SPS did not want to communicate with him. It should have done more to help him. The whole world seemed to be against him. He was equally unimpressed by the Scottish Prison Officers Association.
[11] The pursuer remained off work for more than 12 months until returning on 14 September 1998. He was granted ill-health retirement from SPS in January 2001. At the time of his retirement he had just turned 38 years of age.
The Barlinnie Care Team
[12] At the time of the incident there was in existence something called the Barlinnie Care Team. It has since been wound up. The concept of a care team was familiar in the Prison Service by the mid-1990s as a way of responding to serious incidents. Specific evidence about the Barlinnie Care Team was given by a member of the Team, Alan Haughey, under reference to two documents: a leaflet designed to publicise the existence of the Team and the services it provided entitled "A Service to Barlinnie" (hereafter "the Leaflet"); and a Manual entitled "Traumatic Incidents in the Workplace, Training for Designated Officers: dealing with traumatic incidents and ensuring support for staff involved" (hereafter "the Training Manual"). The Barlinnie Care Team was set up in January 1994. It provided a support, listening and guidance service to staff and prisoners within Barlinnie. It had 11 members made up of prison officers who had volunteered to participate in the Team. They were not qualified to provide medical care or psychological therapies. They were available to provide support or advice in the aftermath of an incident. Where appropriate they would refer the staff member or prisoner to appropriate professionals, such as a nurse or a general medical practitioner.
[13] It is useful to set out parts of the Leaflet and the Training Manual to get the flavour of the service offered by the Barlinnie Care Team. The Leaflet introduced the Barlinnie Care Team in this way:
"Where any prisoner or member of staff has been involved in an incident or has suffered a personal crisis, the Barlinnie Care Team will provide, with the individual's co-operation, care, support and advice and will at all times respect the individuals (sic) right to confidentiality."
After setting out the names of the team members, there were a number of questions and answers explaining its function. They included the following:
"1. Q. What is the Care Team?
A. Barlinnie has a group of staff identified as the local Care Team. They
can be from any occupational group, grade or profession and have an interest in providing support to prisoners and staff in a crisis situation. All have had training to prepare them for this work.
2. Q. Why is this service required?
A. It is recognised that serious incidents, personal trauma affect different people in different ways. Almost everyone has some sort of reaction and this is normal and natural. The Prison Service recognises that it has a duty to care for all of its staff and prisoners and wants to minimise the harmful effects of a serious incident.
3. Q. What effect might I experience?
A. This varies very much with individuals. The after effects might take the form of sleeplessness, nightmares, intrusive flashback/recall, headache, tiredness, generally feeling out of sorts or a number of other things. Whilst they might be normal after a period of extreme pressure they do need attention if they persist. These effects may be delayed and appear some time after the traumatic experience, perhaps even weeks or months later.
4. Q. What should I do?
A. If you think you are suffering from the effects of the incident, no matter how much or how little, talk to a member of your local Care Team. They have been selected to help prisoners and staff to get care and support or talk to a trusted colleague.
5. Q. What can a member of the Care Team do for me?
A. The Care Team is available to every member of staff and prisoner to offer initial support and advice. They will discuss with you your initial reactions, talk about the possible after reactions and explain the service available. They can make arrangements to put you in touch with someone who may be able to provide help, if that is what you need. Alternatively they provide you with a point of contact. ...
8. Q. Does this service replace treatment by my GP?
A. No. If your doctor prescribed treatment you follow it. Even if you are receiving help from your GP, you can still talk to the people providing this service.
9. Q. Do I have be on sick leave before I ask for assistance?
A. No. The service is available to you whether you are at work or on sick leave. ..."
[14] We were referred to certain sections of the Training Manual. Section 3 is entitled "Dealing with Traumatic Situations". Under the heading "Steps to take immediately after a traumatic event" it identifies the need for there to be a "designated officer". It points out that people who have been through a traumatic incident need to feel secure. In dealing with injuries and shock, it recognises the need to consider getting medical help. In some cases there may need to be a "defusing session" with the assistance of a designated officer, whose role includes allowing people to be as comfortable as possible, and re-assuring people about feelings of guilt, shame, anger, frustration and fear. It raises the possibility that a "critical incident de-briefing" may be appropriate (though it is to be noted that the experts in this case were at one in saying that that course was not recommended). The functions of a "designated person" are set out in a number of bullet points, these being to listen, to be sensitive to people's anxieties, to reassure people that their feelings are normal, to arrange a critical incident debriefing for all involved where appropriate, to be aware of their own limitations and to have access to support within the company or through an outside agency. A section describing "the experience following a traumatic incident" identifies the common responses to a traumatic event and the association of these responses with more general signs of stress. Under the heading "identifying problems", it is noted that: "Given support, understanding and care by their employer there is a very good chance that most people will not experience further difficulties", though it goes on to describe problems that others may experience.
[15] Mr Haughey was a "designated officer". He said the Barlinnie Care Team provided a listening service for staff and inmates across a range of cases, including cases of suicide, self-harm, staff assault and prisoner assault. If a prison officer had come to him with concern over swallowing infected blood he said he would have listened to him and advised him to go and see his general practitioner. Had the pursuer come to him in a distressed condition he would have done all in his power to be of help. Had the pursuer told him that he needed to unburden himself, he would have listened, albeit that at some stage he would have had to let go. He had been trained to deliver support. His training had been along the lines of that described in the Training Manual. The Lord Ordinary commented that, although Mr Haughey said that he had been trained to deliver these various forms of support, the only example that he volunteered in his evidence was listening. However, Mr Haughey did confirm that if the pursuer had presented to him as needing a "cup of tea and a chat", he would have provided that.
[16] The Lord Ordinary makes this assessment of the service offered by the Barlinnie Care Team in para.[28] of his Opinion:
"On the fairly limited information I had about the Barlinnie Care Team it appeared to me that there was a discrepancy between the aspiration, as represented by the [Leaflet] and the [Training Manual] and the actuality, as represented by what Mr Haughey felt able to do. Whether the aspiration was ever entirely realistic I do not know. The evidence of Dr Rogers and Dr Freeman, supported by the terms of the National Clinical Practice Guideline Number 26 on Post-traumatic stress disorder ("NICE Guidelines") published in 2005, would suggest that views about the efficacy of the critical incident debriefing have changed since 1993 which is the publication date of "Traumatic Incident in the Workplace". Whereas in 1997 a critical incident debriefing was thought to be helpful in reducing the subsequent development of PTSD, now the practice is thought to be positively unhelpful. For present purposes, that might not matter. In the absence of better information I consider it appropriate to take the terms of the [Leaflet and the Training Manual] as indicating what SPS knew or can be deemed to have known in 1997 about the risks of psychiatric injury consequent upon the incident in the workplace and what might be done to alleviate these risks. That is of obvious relevance when considering duty of care. That said there was nothing in Mr Haughey's evidence to suggest that he, or any of his colleagues in the Barlinnie Care Team, was equipped to do more than to lend a friendly ear to prison officers or prisoners who were anxious or otherwise felt under stress. When the service was offered to a prison officer it would seem to me to be proper to regard what was intended [as] a form of peer support simply by listening to what a colleague had to say and making reassuring conversational responses. In the course of submissions this was referred to as "tea and sympathy". That expression was not meant to be facetious or pejorative but merely a shorthand which gives something of the flavour of what the Barlinnie Care Team had to offer. When Mr Summers came to make his submissions on behalf of the pursuer, I did not understand him to suggest that there was evidence that the Care Team provided anything more than that."
[17] In that passage the Lord Ordinary refers to the NICE Guidelines. Our attention was drawn to the relevant passage, in section 7.5 "Treatment for all - clinical summary". This provided as follows:
"... we do not recommend that systematic, brief single session interventions focusing on the traumatic incident are provided individually to everyone who has been exposed to such an incident. However, we do recommend the good practice of providing general practical and social support and guidance to anyone following a traumatic incident. Acknowledgement of the psychological impact of traumatic incidents should be part of healthcare and social service workers' response to incidents. Support and guidance are likely to cover reassurance about immediate distress, information about the likely course of symptoms, and practical and emotional support in the first month after the incident."
It should perhaps be noted that the NICE Guidelines are primarily focussed on PTSD following an incident.
The pursuer's injury
[18] Despite the blood tests having shown that he was not in fact infected, the pursuer's fears have remained. He contends that as a consequence of what happened on the occasion of the incident and its immediate aftermath he became clinically anxious and depressed with the result that he was unfit for work.
[19] The Lord Ordinary heard evidence from consultant psychiatrists for each party. Dr Alan Fraser and Dr Tim Rogers were called by the pursuer and Dr Christopher Freeman by the defenders. Dr Fraser had had some involvement in the matter by virtue of having provided the pursuer with a course of cognitive behavioural therapy. Dr Rogers and Dr Freeman were independent experts with no prior involvement. The consultant psychiatrists were unanimous in finding signs of mental disorder in the pursuer in the period subsequent to 3 August 1997. There was consensus among them that whatever illness the pursuer suffered was caused by the events of that day. Their views as to the nature of that illness differed. The Lord Ordinary found it proved that the pursuer had suffered from a psychiatric illness which might be described as a Moderate Depressive Episode since approximately September 1997 and that that psychiatric illness continues.
[20] The consultant psychiatrists were not in agreement about whether that depressive illness stemmed from the pursuer's fear of the consequences of having been exposed to the risk of a potentially fatal infection or from his anger at the way he was treated by SPS. The Lord Ordinary found that it was not unreasonable for the pursuer to feel such fear; nor was it unreasonable for him to have been disappointed with and angry about the managerial response to the incident. Having carefully considered all the psychiatric evidence, he found that both the fear of infection and the anger at the way he had been treated were necessary components in the process that led to the pursuer developing depression.
The pursuer's case on record and at proof
[21] The pursuer contends in Article IV of Condescendence (at p.42 of the Summons) that it was the duty of SPS "to take reasonable care for the safety of its employees"; and that it was its duty "to take reasonable care to protect its employees from harm, including psychiatric harm". Having then made averments to the effect that the danger to the mental health of prison staff caused by exposure to traumatic incidents, of which the ingestion of an injecting drug user's blood was one, and the need for care and counselling were or ought to have been known to the defenders, he goes on in that Article (at pp.44-45) to make the following averment:
"In the circumstances, it was the duty of SPS, in the exercise of reasonable care, to have in place, and to implement, a system whereby the pursuer was provided with early counselling and support to help him deal with the trauma of the incident. Such a system should have included ..."
There follow a number of detailed averments as to what could or should have been done. The Lord Ordinary summarises this part of the pursuer's case in this way in para.[39]:
"Put shortly, the pursuer avers that it was the duty of SPS to have in place and implement a system whereby the pursuer was provided with early counselling and support to help him deal with the trauma of the accident. It goes on to aver that such counselling and support would have involved the Barlinnie Care Team discussing with the pursuer his initial reactions, possible after-reactions, and making immediate arrangements for the pursuer to have a blood test for Hepatitis and HIV. ..."
In para.[40] he adds this:
"Thus, the pursuer seeks damages for psychiatric injury consequent upon his fear of contracting physical illness which, he avers, would have been materially alleviated had he been provided with the 'psychological first aid' which could have been made available to him by the Barlinnie Care Team."
Finally, on this point, the Lord Ordinary says this at para.[42]:
"The pursuer has been allowed proof of the averment that SPS was under a duty of care 'to implement a system whereby the pursuer was provided with early counselling and support to help him deal with the trauma of the incident'. That averment only gets the necessary degree of specification from the 'further and in any event' involvement of the Barlinnie Care Team which is averred at page 45D of the Record. As Mr Summers pointed out, the pursuer does have an averment, at page 46B-C: 'Separatim, esto the pursuer should not have been referred to the Barlinnie Care Team, (which is denied) it was the duty of SPS to take reasonable care to support the pursuer after the incident so as to prevent the pursuer from feeling isolated and abandoned by SPS. Reference is made to Article II hereof.' Article II of Condescendence is wide-ranging but it is difficult to discern what is meant by 'support ... so as to prevent the pursuer from feeling isolated and abandoned' other than by reference to what was offered by the Barlinnie Care Team."
From these citations it is clear that the Lord Ordinary treated the pursuer's case as being, in effect, that the defenders ought to have referred him to the Barlinnie Care Team which would have provided him with "psychological first aid" (the services described by Mr Haughey) to help him deal with the trauma of the accident. There was no challenge before us to this analysis.
[22] We should note, in passing, two other matters mentioned by the Lord Ordinary. First, there was also an averment that SPS ought to have had in place a system which would have involved making the pursuer aware (by senior management speaking to the pursuer in person or over the telephone) within a few hours of the incident that he had the active support of senior management. The Lord Ordinary noted that that point was not developed in argument, and there was in any event no evidence that it was reasonably foreseeable to SPS that a failure to act in this way would exacerbate the risk of psychiatric injury in a case of this sort. Secondly, the Lord Ordinary considered and rejected the notion that the pursuer had a secondary case, which he identified as a duty to provide Barlinnie Care Team services by alternative means. Since The Lord Ordinary's conclusions in these two respects were not challenged before us, we need say no more about them.
The Lord Ordinary's decision and reasons
(i) Duty and breach of duty
[23] At paras.[39]-[48] of his Opinion the Lord Ordinary found that the defenders owed a duty of care to the pursuer, but were not in breach of that duty. This part of his Opinion came under detailed scrutiny in the argument before us. It is therefore necessary to set out his reasoning on these related issues in some detail. His reasons were, in summary, as follows.
[24] SPS understood that a serious incident involving an individual might lead that individual, by reason of his perception of a threat to his physical integrity, to develop a psychiatric illness. SPS also understood (whether accurately or not) that that risk could be substantially reduced by the giving of emotional support, ie by allowing the individual to talk to a colleague about how he felt and that colleague responding by expressing his understanding of the situation. What happened to the pursuer fell into the category of a serious incident as that expression is used in the Barlinnie Care Team documents; it was an unusual incident, it was dramatic in that the pursuer's face and shirt were splashed with a significant amount of blood and it involved a perceived risk of infection with serious diseases. It was therefore reasonably foreseeable that the incident involving the pursuer might give rise to a depressive illness. This incident was an example of what the Barlinnie Care Team was set up to deal with.
[25] Accordingly, following the incident on 3 August 1997, SPS was under a duty to see that the pursuer was offered early counselling and support of the sort that could be provided by the Barlinnie Care Team: see para.[46].
[26] The pursuer was not referred to the Barlinnie Care Team. However, it did not follow that the defenders were necessarily thereby in breach of duty.
[27] The complaint here was of failure to deliver a proper therapeutic response. The pursuer did in fact have the benefit of a number of therapeutic responses within a week or so of the incident, albeit they had come about by reason of the pursuer himself having to take the initiative. He had attended the prison medical centre, Ruchill, and his general practitioner. He had been seen by medically qualified persons in relation to what looked like an entirely medical problem. In those circumstances, it was "rather difficult to accept" that SPS remained under a duty to refer to its in-house counselling and support service: see para.[48].
[28] Once the pursuer was attending the specialised unit at Ruchill, SPS had no means of knowing that the pursuer might be in need of further therapeutic assistance. While the creation of the Barlinnie Care Team and the provision of training to staff demonstrated that SPS was aware of the need for psychological and psychiatric support for their staff in the event of potentially traumatic experiences, as a matter of generality, the evidence did not demonstrate that SPS must be taken to have known that, "where the pursuer was faced with the specifically medical problem of the possibility of infection and its consequences and was apparently being advised about that by the best qualified available source of advice", support from within the workplace remained a necessary part of the therapeutic process: see para.[48].
[29] Apart from other considerations, the Lord Ordinary questioned the practicality of such an arrangement for parallel counselling. It was possible that referral to the Barlinnie Care Team might have led to a worse outcome for the pursuer, or at least have been thought to lead to a worse outcome. Clearly it was necessary for the pursuer to avail himself of the services of the specialist unit at Ruchill. Had he also taken up a referral to the Barlinnie Care Team and had the Team member (who would have had no psychological training and only limited knowledge about blood-borne viruses) offered anything by way of counselling beyond a simple listening service then there would have been a risk of conflict and confusion as between what the pursuer was being told at Ruchill and what he was being told at Barlinnie.
[30] It was questionable whether referral to the Barlinnie Care Team would have resulted in much in the way of counselling. They would have listened to the pursuer and told him to go and see his general practitioner. That is in fact what the pursuer did.
[31] The Lord Ordinary concluded this passage of his reasoning in this way (at the end of para.[48] of his Opinion):
"Having taken the view that SPS was under a duty to see that the pursuer was offered early support of the sort that could be provided by the Barlinnie Care Team, it appears to me that on the evidence that is what he did receive and SPS was aware of that, albeit without any referral to the Team. I therefore do not find SPS to have been in breach of the relevant duty of care."
(ii) causation
[32] The Lord Ordinary went on in paras.[49]-[68] to consider the question of causation on the hypothesis that he was wrong about there being no breach of duty. In para.[49] he formulated the question in this way:
"Were I to be wrong in my conclusion about breach of duty the pursuer would succeed in his claim if, but only if, he has established that had he been provided with the services of the Barlinnie Care Team the depressive illness of which he complains would not have developed or would have been materially less severe or materially shorter in duration. The pursuer's case is not that SPS was at fault by reason of his exposure to a traumatic experience which led to psychiatric injury but that he having been exposed to a traumatic experience SPS failed to take a specific prophylactic measure, referral to the Barlinnie Care Team, which would have prevented the psychiatric injury which the pursuer went on to suffer. The pursuer must therefore prove that but for the failure of SPS to refer him to the Barlinnie Care Team and see that he was provided with the sort of service that it provided he would not have developed a depressive illness or that it would have been materially less severe or materially shorter in duration. The standard of proof is balance of probabilities. The onus of proof is on the pursuer. The task of determining whether the pursuer has discharged that onus is for the court."
There was no criticism before us of this formulation of the causation issue.
[33] The Lord Ordinary then went on to consider the expert psychiatric evidence. He pointed out that whereas Dr Rogers and Dr Freeman were independent experts in the sense of not having had any previous involvement in the case, Dr Fraser had been a treating physician (a position that brought both advantages and disadvantages). Both Dr Rogers and Dr Fraser supported the pursuer's case, though for slightly different reasons, while Dr Freeman supported that of the defenders. Since in this reclaiming motion the pursuer challenges The Lord Ordinary's findings of fact, we should at this stage outline his summary of their evidence.
[34] Dr Rogers had proceeded on the understanding that it was a long time before the pursuer's beliefs about hepatitis and AIDS were challenged. By that time it was too late. His opinion was that in-house counselling would have made a substantial difference to the subsequent prognosis. The interventions mentioned in "Traumatic Incidents in the Workplace", one of the Barlinnie Care Team documents, would have been helpful, though none of them applied exactly to the pursuer. The term "counselling" was used by different people to mean different things. The counselling that he had in mind as being beneficial in this case might take have taken a number of forms but the chief ingredients would be education and information about the relevant blood borne illnesses, combined with information about the statistical probability or improbability of an individual acquiring the illness in a given set of circumstances. It was necessary to "challenge" the pursuer's misbeliefs. For it to be effective, the person giving counselling must both know about the relevant risks and have had psychological training. There was a relatively narrow window of opportunity before the pursuer's immediate and natural fear became morbid and obdurate. That window was closing by the time the pursuer had consulted his general practitioner and been prescribed anti-depressants on 5 September 1997. By the time the pursuer began cognitive behavioural therapy at Langside Priory (in March 1998 and subsequently) he had a developed anxiety and depression. Dr Rogers contrasted the counselling which he thought should have been given with psychological debriefing or critical incident debriefing, which would not have been appropriate or helpful because the real issue with the pursuer was exposure to blood, leading to a morbid fear of HIV or hepatitis. He also explained that the psychotherapeutic measures designed to prevent PTSD were designed for a different kind of problem and would not have been helpful.
[35] In cross-examination Dr Rogers was pressed on the significance of his not knowing exactly what the pursuer was told at Ruchill during his five attendances there. According to the Lord Ordinary's findings, he thought that it was unlikely that the pursuer's particular concerns were discussed, but he did not explain why he thought that to be so, other than the brevity of the relevant clinical notes - it was difficult to know what had happened at Ruchill.
[36] Dr Fraser described the pursuer' illness as being a mixture of anxiety, depression and post-traumatic symptoms, caused primarily by the pursuer being told that the blood he had swallowed came from an individual with a high risk of HIV. If the pursuer had received a degree of support, that would have mitigated the severity of the psychological shock and significantly reduced the prospect of depression. On the balance of probabilities the provision of support would have averted the development of the symptoms he had identified; whereas the lack of support given to the pursuer had exacerbated his psychological shock. By "support" he meant recognising how the pursuer was feeling, allowing the pursuer to discuss how he felt, and offering practical measures. There was no literature on this sort of support; he based his opinion on his experience and the literature about dealing with traumatic incidents. The NICE Guidelines recommended support. The main advantage of such support was that it prevented psychological symptoms developing from psychological shock. The sort of interventions described in "Traumatic Incidents in the Workplace" would have prevented the development of the pursuer's depression. Employers should convey to employees the impression that they care. From the point of view of the pursuer, SPS did not seem to care; if it had demonstrated that it cared that would have made a difference. The pursuer's attitude to SPS was not irrational. He understood from the pursuer that there had been no contact until 6 weeks after the incident; he had been left to go to Ruchill on his own initiative. He would have expected someone to have met with the pursuer in the first 24 hours after the incident in order to assess how he was coping. He would have been happy if the support which he thought should have been given to the pursuer had been provided by an outside agency, for example his general practitioner.
[37] The Lord Ordinary noted that under cross-examination Dr Fraser had agreed with Dr Rogers' opinion that, for any intervention to be effective, the counselling had to be given by someone with psychological training and an understanding of the risks of infection. This concession appeared difficult to reconcile with his earlier evidence that support through the Barlinnie Care Team (members of which had no such training or detailed understanding) would have made a difference. Pressed on this in re-examination, Dr Fraser reformulated his position. What the pursuer had required were two things: first, support from his employer; and, second, specialised counselling on HIV. He got the second from Ruchill, but he did not get the first, support from his employer. If he had got that it would have prevented his symptoms progressing to the stage when he needed psychological counselling.
[38] Dr Freeman did not dispute that the provision of "tea and sympathy" might have had some therapeutic benefit, but in his opinion it would not have made any difference to the outcome of the pursuer's case. Nor did he agree with Dr Rogers that information on the infection risk from a knowledgeable source coupled with psychological counselling would have been beneficial. Early psychological counselling, whoever delivered it, would not have done any good. There was nothing that could have been done whether in the form of low level counselling, "tea and sympathy" or anything else that would have made a difference.
[39] The Lord Ordinary next considered the proper approach to opinion (or expert) evidence, under reference to McTear v Imperial Tobacco 2005 SC 1 at paras.[5.3]-[5.11]. The conclusion which he drew from the passages cited from that case was that the expert should provide reasoning to allow the court to make its own assessment of the evidence; mere assertion justified on the basis of experience is of little or no assistance. The Lord Ordinary then carried this approach forward to a consideration of the evidence given by the experts relevant to causation. Having considered the expert evidence, and disclaimed reliance on relevant parts of that of both Dr Freeman (para.[64]) and Dr Fraser (para.[66]), he concluded that the pursuer "had failed to prove that but for the failure to refer him to the Barlinnie Care Team he would not have developed the depressive condition from which he suffers."
[40] The Lord Ordinary's reasoning is set out in paras.[64]-[68]. Because these paragraphs were the subject of detailed analysis, we set them out verbatim:
[64] Dr Freeman's evidence on the matter is not determinative. He explained (and I did not understand this to be controversial) that the current consensus, as expressed in the NICE Guidelines, is that early critical incident debriefing is not helpful and may be positively unhelpful in avoiding the development of PTSD. However, what Dr Rogers advocated was something different, it was counselling with a view to eradicating the pursuer's fears about hepatitis and HIV, the chief ingredients being education and information about the relevant blood borne illnesses, combined with information about the statistical probability or improbability of an individual acquiring the illness in a given set of circumstances. Dr Freeman expressed a firm opinion that there was nothing that could have been done whether in the form of low level counselling, "tea and sympathy" or anything else that would have made a difference in outcome for the pursuer but, as I have it noted, he was not asked to elaborate on the reasoning that underpinned that opinion. Therefore beyond underlining that the matter was controversial, Dr Freeman's evidence did not take me very far in determining whether or not the pursuer had made his case.
[65] Dr Rogers' approach assumes that there was a point when the pursuer could be effectively reassured in the sense of at least reducing his anxieties about blood borne infections to levels which would not drive him into depression. Agreeing with the defenders' submission on this point, I cannot be satisfied that this is so. Dr Rogers accepts that the pursuer was beyond any reassurance within weeks of the incident. The pursuer's testimony was eloquent of the strength of his beliefs and their persistence in the face of evidence to the contrary, including the beliefs that swallowing blood was worse than intravenous transmission, and that the hepatitis C virus could lie dormant in the body even after a negative test. His was, as Dr Rogers conceded, a very extreme reaction. Dr Rogers had not experienced a similar case. The pursuer was not reassured by Miss Cassidy and he was not reassured by the advice he must be taken to have received at Ruchill Hospital. I see it as a weakness in Dr Rogers' position that he maintains that the pursuer could be reassured when he does not know exactly what advice the pursuer received at Ruchill or how it was delivered. For all he knew everything he desiderated had been done at Ruchill but without allaying the pursuer's fears. Be that as it may, I simply do not understand why it might be that a member of the Barlinnie Care Team would have been more successful in eradicating the pursuer's fear of infection than the healthcare professionals have been.
[66] Dr Rogers' view that the pursuer's potentially morbid fears could be eradicated, that he could be reassured, has to be seen in the context of what he considered would have been necessary by way of effective counselling. The person providing the counselling would have to know about the risks of infection and have had psychological training. The intervention might require to be over a period of 8 weeks for the necessary anxiety reduction. That sort of counselling clearly was not available from members of the Barlinnie Care Team; they did not have the knowledge, they were not psychologically trained (at least I had no evidence to that effect), and they did not offer the intensive sort of intervention suggested by a programme lasting 8 weeks. In examination-in-chief Dr Rogers was shown "Traumatic Incidents in the Workplace". He was first asked whether what was described there would have been helpful. He agreed that it would in that this would have allowed anxieties to be picked up. He was then asked whether it would be "sufficient". Dr Rogers answered that, on the balance of probabilities, it would have been "helpful". Helpful is different from efficacious, as I understood Dr Rogers to appreciate. What I took him to be saying was that, contrary to Dr Freeman's opinion, early psychological intervention might have been successful in eliminating the crucial pathological feature which produced the pursuer's depression [and] his fear of infection provided that it was delivered by people who knew what they were talking about and had been psychologically trained. The service offered by the Barlinnie Care Team would have helped but would not have been sufficient on its own. That is not the pursuer's case. Dr Fraser appeared to agree with what Dr Rogers considered to have been necessary in order to address the pursuer's fears but then re-formulated his position in re-examination. The re-formulated position was that the pursuer required first, support from his employer and, second, specialised counselling on HIV. It may have been implicit in that answer that Dr Fraser was equiparating "support from his employer" with provision of the services on offer from the Barlinnie Care Team, although he did not say that in terms. However, again no reasoning was offered in support of that opinion or in support of the somewhat different opinion to the effect that "a degree of support" would have been sufficient to reduce the prospect of depression which Dr Fraser had given in evidence-in-chief. Dr Fraser conceded that there was no literature that supported his position. He supported it by "my experience". That took me no distance. What I am left with is Dr Rogers' opinion that a very different sort of counselling than was offered by the Barlinnie Care Team might have prevented the pursuer's depression. Even if that is taken to be correct, it does not follow that what the Barlinnie Care Team had to offer would have prevented the pursuer's depression.
[67] Putting much the same point slightly differently and reiterating what appears above in relation to breach of duty, in fact the pursuer received more or less the same care that he would have done had he been referred to the Barlinnie Care Team. As Mr Milligan submitted, there was nowhere better placed to provide the appropriate advice than the clinic at Ruchill Hospital. The pursuer attended there within a day or two of the incident. He also attended his general practitioner within a few days and received a degree of emotional support there. Had the pursuer been referred to the Barlinnie Care Team a member would have listened to him and suggested that he saw his general practitioner, who would have then referred him on to Ruchill. There could never have been any question of the advice on the risks of infection which Dr Rogers considered had to be given to the pursuer being given by any other agency than the clinic at Ruchill. Certainly a member of the Barlinnie Care Team could not have provided such advice.
[68] Granted, had the pursuer been referred to the Barlinnie Care Team he might have received more "tea and sympathy" because a team member might have longer to talk than the health care professionals on whom the pursuer in fact attended. He might have met with the pursuer on a number of occasions, although that was not explored. Mr Haughey agreed with Mr Summers in cross-examination that he would have done all in his power to help but it was not made clear in evidence what that would have consisted of beyond "a cup of tea and a chat" to use the expression employed by Mr Summers. That would not have addressed the pursuer's fears and it would not have amounted to a recognition by management that something important had happened. I heard no evidence that gave me reasons for concluding that a cup of tea and a chat would have made any difference to the outcome of the pursuer's case where all other therapeutic interventions have been unsuccessful."
Submissions for the pursuer and reclaimer
[41] The main submissions for the pursuer on causation were presented by Mr Olson. He submitted that the Lord Ordinary had erred in his approach to the expert evidence. It was too extreme a view to say that expert evidence based entirely upon the experience of the expert was never of value. In some areas there may be no published material. Clinical experience can provide a proper basis for an opinion and valuable support for it. To describe that as assertion justified by experience was unduly pejorative. All of the experts relied on their own experience in this case, and were right to do so. That was all there was, and treated with proper care it was of assistance to the court. It was wrong to characterise such evidence as mere ipse dixit and on that basis to discount it.
[42] Dr Rogers' evidence was, in any event, not simply assertion justified by experience. Emotional support would have helped to prevent the symptoms from progressing. It was consistent with the thrust of modern psychiatric treatment, as Dr Rogers explained. There were no studies on the topic, no peer-reviewed literature. In this situation, if a psychiatrist says "in my experience this works" the court should not just reject that as simply his ipse dixit. The psychiatrist is giving the court the benefit of his observations made in a clinical context. Statistics are often prayed in aid as part of a scientific case spoken to by an expert. Here there is no statistical database, but the experience of one or more scientists may be regarded as a less refined way of placing similar relevant material before the court. Experience is not always sufficient, but if combined with reasons it may be persuasive. The same was true of the evidence of Dr Fraser, though it was accepted that, as treating psychiatrist, he fell into a slightly different category. As the Lord Ordinary observed at the end of para.[64], Dr Freeman did not have any basis, whether from the literature or from experience, for saying that emotional support would not make any difference. In fact he accepted that it would have had a beneficial effect.
[43] Counsel submitted that the Lord Ordinary had failed to understand the evidence given by the pursuer's experts, particularly Dr Rogers. He recognised that this involved challenging the Lord Ordinary's findings of fact, but he submitted that he could succeed in such a challenge if he could show that the Lord Ordinary had misunderstood the expert evidence, or had arrived at conclusions which were inconsistent or were plainly wrong: McGraddie v McGraddie [2012] CSIH 23 at paras.[35]-[37]; Murphy v East Ayrshire Council [2012] CSIH 47 at para.[21]. The pursuer's expert evidence was to the effect that the pursuer required three things in response to the incident of 3 August 1997: emotional support; factual information about the risks of ingesting potentially infected blood; and support, including treatment of symptoms if necessary, from his general practitioner. The pursuer did not get the first of these, the required emotional support or, as The Lord Ordinary described it in para.[62], "'psychological first-aid' by a specified therapeutic mechanism: [namely] referral to the Barlinnie Care Team and the listening service it provided... ". The Lord Ordinary failed to appreciate that the evidence of the pursuer's experts, particularly Dr Rogers, supported the pursuer's case that such emotional support would probably have been effective. On the issue of causation, the question was: would that support, had it been given, have made any difference to the development and longevity of the pursuer's psychiatric condition? This required an assessment by The Lord Ordinary of the expert evidence. The Lord Ordinary recognised this. However, in making that assessment The Lord Ordinary misunderstood the pursuer's expert evidence. In para.[64] of his Opinion the Lord Ordinary correctly recognised that none of the experts were advocating critical incident de-briefing; there was a consensus that that was not helpful and might be positively unhelpful. But he gave a limited and inaccurate account of what Dr Rogers was in fact advocating. He appeared to consider that the counselling which Dr Rogers favoured was directed to "eradicating the pursuer's fears about hepatitis and HIV"; and, accordingly, that the chief ingredients of that counselling were education and information about the relevant blood borne illnesses, combined with information about the statistical probability or improbability of an individual acquiring the illness in a given set of circumstances: see para.[64]. That tied in with what the Lord Ordinary said at the beginning of para.[66] about Dr Roger contemplating that the person providing the counselling would have to know about the risks of infection and have had psychological training; and that the intervention might require to be over a period of about 8 weeks for the necessary anxiety reduction. The Lord Ordinary was correct in para.[66] to say that that sort of counselling clearly was not available from the Barlinnie Care Team - but that missed the point, since that was not the counselling that Dr Rogers was talking about. That error carried through to the Lord Ordinary's rejection (at the beginning of para.[65]) of Dr Rogers' assumption that there was a point before depression set in when the pursuer could have been effectively reassured - again the Lord Ordinary had in mind that Dr Rogers was advocating something different from the emotional or therapeutic support offered by the Barlinnie Care Team. The support of the type offered by the Barlinnie Care Team was variously described in the evidence, not always helpfully, as low-level counselling, "tea and sympathy", "a cup of tea and a chat" and "psychological first-aid": we shall generally refer to it hereafter as "low-level" or "emotional" support. That error carried through also to the Lord Ordinary's perception (in para.[65]) that it was a weakness in Dr Rogers position that he did not know what advice the pursuer had received at Ruchill or how it was delivered - this question would only be relevant if Dr Rogers was advocating something which might also be provided by Ruchill. Further, the error carried through to the Lord Ordinary's conclusion (at the end of para.[66]) that what he was left with was Dr Rogers' opinion that "a very different sort of counselling than was offered by the Barlinnie Care Team might have prevented the pursuer's depression". That again was based on a misunderstanding of Dr Roger's evidence. As a result, having wrongly excluded reliance on Dr Fraser's evidence on the ground that it was only supported by "my experience", which he said took him "no distance", all he was left with was Dr Rogers' opinion, which he mistakenly thought did not support the pursuer's case. His conclusion that the pursuer had failed to prove causation was thus seriously flawed.
[44] Counsel emphasised that it was no part of the pursuer's case that he should have been given the sort of "effective counselling" which the Lord Ordinary incorrectly attributed to Dr Rogers (see the beginning of para.[66]). What Dr Rogers was advocating was the emotional or therapeutic support which was offered by the Barlinnie Care Team and ought to have been made available to the pursuer. This should have been given alongside the expert medical treatment and advice offered by Ruchill. In a passage near the beginning of para.[66] The Lord Ordinary appeared briefly to recognise this. He referred to Dr Rogers' evidence in chief, where Dr Rogers was shown "Traumatic Incidents in the Workplace" (which described to some extent the work done and counselling offered by the Barlinnie Care Team) and said that what was described there "would have been helpful". Dr Rogers was then asked whether it would be "sufficient"; and the Lord Ordinary has noted him answering that it would have been "helpful". In other words, it would have been helpful but not sufficient. The Lord Ordinary then says this: "Helpful is different from efficacious, as I understood Dr Rogers to appreciate". The Lord Ordinary interprets that as Dr Rodgers saying that while emotional support would not be effective, early psychological intervention by people who knew what they were talking about and were psychologically trained would or might have been. Counsel submitted that that was a misinterpretation of Dr Rogers' evidence. Dr Rogers was saying that emotional support of the type offered by the Barlinnie Care Team would have been effective. He said this in terms, in a passage which the Lord Ordinary overlooked. Properly understood, Dr Rogers and Dr Fraser both supported the pursuer's case that emotional support of the kind provided by the Barlinnie Care Team would have provided early therapeutic intervention by way of counselling and thereby have allayed his fears, provided him with emotional support and prevented the development of psychiatric illness.
[45] Mr Summers QC adopted these submissions but sought to put them in a context which embraced not only causation but also breach of duty. He submitted that there were four basic questions to be answered as regards the issue of duty: (i) was there a general duty of care? (ii) was there a duty to act when someone was upset or traumatised by an incident such as the present? (iii) what did SPS require to do to discharge their duty? and (iv) did SPS breach that duty.
[46] As regards questions (i) and (ii), he put forward the following general proposition (we quote it in a slightly amended form, which had the agreement of both parties):
"Where it is known that the working environment is liable to give rise to alarming experiences which may reasonably foreseeably cause a recognised psychiatric illness there is a duty to take such measures as are reasonable in the circumstances to forestall or limit risk of injury."
He submitted that that test was satisfied. He referred to the Leaflet and the Training Manual. Both recognised the duty of care owed to all staff in such circumstances to minimise the harmful effects of such incidents. The SPS Health and Safety entry on 19 August, some two weeks after the incident, noted that there was an on-going review of the quality of supervision and guidance in the event of blood spills which was expected to result in a recommendation for more positive counselling. That conclusion, in other words the absence of adequate counselling at the time, was described in the entry as "disappointing". The Prison Governor, Mr O'Friel, accepted that the Barlinnie Care Team was designed to deal with this type of problem and that there was no justification for failing to deploy it in the present case. In those circumstances the answer to both questions (i) and (ii) was obviously: Yes.
[47] The real issue which arose was: what follows from that? In terms of its own procedures, SPS ought to have referred the pursuer to the Barlinnie Care Team. Counsel submitted that the description "tea and sympathy" which the Lord Ordinary used on occasions to describe the service offered by the Barlinnie Care Team was a "gross mischaracterisation" of what the Barlinnie Care Team did. The Barlinnie Care Team was put in place by SPS because SPS thought that it would help. The Lord Ordinary accepted (at the end of para.[46]) that following the incident SPS was under a duty to see that the pursuer was offered early counselling and support "of the sort that could be provided by the Barlinnie Care Team". That raised the question: what sort of care did Barlinnie Care Team provide? It was more sophisticated than "tea and sympathy"; but it did not provide expert help in respect of psychological issues. Help from outside agencies would be used as necessary. Help from the Barlinnie Care Team was materially different from the help that the pursuer would have got at Ruchill; and the help he got at Ruchill was not a substitute for what he should have got from the Barlinnie Care Team. What went wrong was that one of the two critical components in the proper treatment of the pursuer was missing. The pursuer needed both medical advice of the sort he got from Ruchill and emotional support from Barlinnie Care Team. The problem was that he did not get the emotional support. He was left to go to Ruchill by himself.
[48] The Lord Ordinary's finding that SPS owed a duty to see that the pursuer was offered early counselling and support of the sort that could be provided by the Barlinnie Care Team was based on SPS's perception of what risks could have been foreseen and, more importantly, its own perception "correctly or otherwise" of what could be done about it (see para.[45]). He repeated this in para.[46] by referring to SPS' understanding "whether accurate or not" that the risk to someone in the pursuer's position could be substantially reduced by the giving of emotional support along the lines of that given by the Barlinnie Care Team. SPS foresaw the risk; SPS thought that emotional support as provided by the Barlinnie Care Team was the way to deal with it; therefore SPS owed a duty following the incident to see that the pursuer was offered early counselling and support of the sort that could be provided by the Barlinnie Care Team. In holding that SPS were not in breach of that duty, the Lord Ordinary relied on the fact, as he understood it, that SPS knew that the pursuer was being seen and advised by competent trained professionals at Ruchill. This was clear from two passages in para.[49]. At one point the Lord Ordinary said this: "the evidence did not demonstrate that SPS must be taken to have known that, where the pursuer was faced with the specifically medical problem of the possibility of infection and its consequences and was apparently being advised about that by the best qualified available source of advice, support from within the workplace remained a necessary part of the therapeutic process." That pre-supposed that the defenders knew that the pursuer was attending Ruchill. Similarly, at the end of that paragraph, in his conclusion on this point, the Lord Ordinary said: "Having taken the view that SPS was under a duty to see that the pursuer was offered early support of the sort that could be provided by the Barlinnie Care Team, it appears to me that on the evidence that is what he did receive and SPS was aware of that, albeit without any referral to the Team. I therefore do not find SPS to have been in breach of the relevant duty of care." [emphasis added]. Counsel submitted that there was no evidence to support that assertion of knowledge. Without that erroneous finding, there was no basis for the Lord Ordinary to find that, despite failing to refer the pursuer to the Barlinnie Care Team, SPS was not in breach of duty. The answer to question (iii) was therefore that, in order to discharge its duty, SPS required to offer and give the pursuer emotional support of the sort offered by the Barlinnie Care Team. The answer to question (iv) was that by failing to do so, SPS did breach that duty. The true question in the case was about causation. Would it have made a difference?
[49] On that question counsel submitted that the Lord Ordinary misunderstood the evidence. Dr Rogers' evidence was that information about the risk of infection could come from someone who was qualified, from within or without SPS as circumstances dictated. Ruchill could provide that information. However, the necessary emotional support had to come from within SPS. A combination of support of the two kinds was required. Dr Fraser agreed with this. Dr Freeman accepted that it is helpful if an employer looks after an employee, and considered that reference to the Barlinnie Care Team would have been beneficial. In addition the NICE Guidelines provided support for the efficacy of such support.
Submissions for the defenders and respondents
[50] On behalf of the defenders, Mr Sheldon reminded us, under reference to the following authorities, of the approach required to be taken by an appeal court to the Lord Ordinary's findings of fact: Piglowska v Piglowski [1999] 1 WLR 1360, 1372A-F; Thomson v Kvaerner Govan 2004 SC (HL) 1 at paras.16-17; Barber v Somerset County Council [2004] 1 WLR 1089 at paras.16, 67 and 70; Gerrard v Royal Infirmary of Edinburgh NHS Trust 2005 SC 192 at paras.[78]-[80], citing Simmons v British Steel plc 2004 SC (HL) 94 at para.9.
[51] We were also reminded, under reference to McTear v Imperial Tobacco, that the proper function of expert evidence is to provide the court with the science, the reasoning, to enable it to make its own assessment of the matters in dispute. The court is not bound to take the unchallenged opinion of an expert on a particular matter as conclusive, particularly an opinion which is unreasoned and backed up solely by reference to "experience".
[52] Counsel pointed out that the Lord Ordinary heard evidence from three experts who were not in agreement. Each made concessions in the course of his evidence and each was to some extent self-contradictory. The Lord Ordinary clearly had reservations about Dr Fraser's evidence, because of his role as treating psychiatrist and the inherent difficulty that a treating psychiatrist may have in giving evidence which is entirely dispassionate. Although credibility was not in issue in this case, reliability was, not only in relation to the evidence of the pursuer but also in relation to that of the experts. The Lord Ordinary had the advantage of hearing and seeing the witnesses and his conclusions about the effect of their evidence should not lightly be overturned.
[53] Counsel submitted that there was ample support for a finding that the support which the pursuer contended should have been given would not have made a material difference to the outcome. The evidence showed that the pursuer's illness was originally caused by fear and anxiety that he had been infected by HIV or Hepatitis C. A degree of anxiety or worry would be natural. However, at best for the pursuer's case, the evidence showed that a critical requirement of any attempt to prevent him developing a morbid fear and psychiatric illness was information and re-assurance. There was no serious dispute among the experts that accurate information about the risks from swallowing blood from a "junkie" was a necessary part of the process, along with such modest re-assurance as was possible prior to results coming through from the blood tests. The information about the risk and realistic reassurance had to be provided by someone with sufficient knowledge and training to give it. The Barlinnie Care Team was not qualified to give it. Information was provided by health professionals at the Medical Centre on the day of the incident; he was given a mouthwash and some modest reassurance that infection was unlikely ("a million to one chance"). The pursuer rejected that information and, even after tests showed it to be untrue, persisted in an unshakeable belief that he was infected. He believed that it could lie dormant for up to 15 years. The Lord Ordinary found (para.[65]) that he was "beyond any reassurance" within weeks of the incident. Accordingly, anything offered by the Barlinnie Care Team was doomed to failure. In any event, there was ample evidence before the Lord Ordinary that "tea and sympathy" was not an effective remedy; or, to put it the other way round, the evidence did not support the view that "tea and sympathy" would have made any difference. Counsel took us to a number of passages in the evidence and submitted that the court should look at the whole evidence to understand what was being said, rather than pick out one or two passages out of context. The crucial issue was whether the pursuer was reassurable. The answer to that was: No.
[54] Mr Milligan QC adopted these submissions. He too, however, sought to fit them into the question of breach of duty as well as that of causation. On the question of duty he referred to the judgment of the Court of Appeal delivered by Hale LJ (as she then was) in Hatton v Sutherland [2002] 2 All ER 1. At para.[43] the court attempted a summary of the relevant principles, 16 in number, regarding foreseeability of and liability for psychiatric injury. That case went to House of Lords and is reported as Barber v Somerset County Council (to which we have already referred on a different point). Lord Walker referred to that summary as useful practical guidance, not to be read as though it had statutory force. Lord Scott understood the court to be applying established principles to a new type of situation. Nothing said in the House of Lords implied any disagreement with that analysis of the principles. We set out below (though omitting the cross-references to other paragraphs in the judgment) the principles referred to which have most bearing on the issues before us:
"(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components, (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.
(10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm."
Principle (2) was relied upon for its emphasis upon the need for the particular type of harm to the particular employee to be foreseeable. Pratley v Surrey County Council [2004] ICR 159 provided further support for that proposition. Mr Milligan submitted that whilst the setting up of the Barlinnie Care Team indicated that the defenders foresaw that prisoners and prison officers might suffer adverse reactions to traumatic incidents such as riots, suicides or assaults, the pursuer suffered psychiatric injury here from a quite different mechanism, namely "a morbid fear of blood borne disease fuelled by abnormal beliefs ...". On the evidence, reference to specialist testing and counselling services such as were provided at Ruchill was what was needed, not reference to the low-level support offered by the Barlinnie Care Team. There was no evidence that in 1997 immediate counselling for anxiety was thought to be appropriate. There was no evidence that the defenders should have foreseen and provided for the probability of a pathological fear of blood borne disease developing.
[55] Reliance was also placed on principle (10). The employer can only be required to carry out steps that are likely to be effective. There was no evidence here that reference to the Barlinnie Care Team and the provision of emotional support would have been effective.
[56] In addition, counsel emphasised that the duty on an employer is to take reasonable care to prevent a recognised psychiatric injury. In Fraser v Secretary of State for Scotland 2001 SLT 1051 at 1057H-I Lord Carloway said:
"... the duty is only to take reasonable care to prevent psychiatric harm. It is not to protect an employee from unpleasant emotions such as grief, anger and resentment or normal human conditions such as anxiety or stress. These do not involve any form of "injury" at all."
That was an accurate summary of the law. As counsel put it rather more bluntly, there is no duty to be nice, however desirable that may be as a matter of good practice. He characterised the pursuer's case as being that his line managers "should have been a bit nicer to him".
[57] It was submitted that the pursuer's case was one of omission, based on the defenders' negligent failure to respond adequately to a particular situation which occurred without their negligence. The correct approach was set out by Lord Dunedin in Morton v Dixon 1909 SC 807, 809. The pursuer had to show that the defenders omitted to do something commonly done by other persons in like circumstances (which was not the case here); or had omitted to do something which was so obviously wanted that it would be folly to neglect to do it. To fail to refer the pursuer to the Barlinnie Care Team when he had been seen by the nurse at the medical centre, had been told to go to his general practitioner and had referred himself to Ruchill could not be said to amount to obvious folly.
[58] The pursuer's case was based squarely on the failure by the defenders to implement their own purpose-designed counselling and support system. The duty of care in this case finds expression in the duty to refer the pursuer to the Barlinnie Care Team. It was accepted on behalf of the defenders that there was at one point such a duty. But that duty flew off when the pursuer received advice and treatment at Ruchill. There was an analogy with first aid. There might be a duty in particular circumstances to provide first aid. But that duty would fly off as soon as the ambulance arrived. That is essentially what happened here. The Barlinnie Care Team would have referred the pursuer to medically qualified assistance. The pursuer went to, and got medically qualified assistance at, Ruchill. There was no need for him, in the event, to go to the Barlinnie Care Team to get a reference to go to Ruchill; nor for SPS to direct him towards the Barlinnie Care Team in order for them to refer him to Ruchill. That analysis assumed two disputed matters: first, that SPS knew that the pursuer was getting medical treatment at Ruchill; and, second, that the service provided by Barlinnie Care Team was all about referring the person for medical treatment. If those points were established, it did not matter whether you dealt with it as breach of duty or as causation. The result was the same.
[59] In the course of their submissions, all counsel took us to a number of passages in the transcripts of evidence. We set out those which we consider relevant in our discussion of the issues below.
[60] This appeal is an appeal against the Lord Ordinary's findings of fact in relation both to breach of duty and causation. We therefore remind ourselves at the outset that, in any appeal founded upon a challenge to the findings in fact of the judge who heard the evidence, the role of the appellate court is constrained in a manner which is well-known and long-established. The correct approach has been re-emphasised in a number of recent judgments. An appellate court does not have the privileges ("sometimes broad and sometimes subtle", per Lord Shaw of Dunfermline in Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35 at 37) of the judge who heard and tried the case. The advantage which the Lord Ordinary has by reason of hearing and seeing the witnesses is not confined to an assessment of their credibility: Simmons v British Steel per Lord Hope at para.9. It extends also to his assessment of their reliability. The personality and demeanour of witnesses, which printed words alone cannot capture, plays a large part in an assessment of their reliability (ibid). Further, the appellate court must resist the temptation to read the Lord Ordinary's Opinion as if it were a conveyancing document. As Lord Hoffman said in Piglowska v Piglowski at p.1372D-H:
"... specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
In these circumstances, although the appellate court must not shrink from its duty to correct errors where they occur, before interfering with the findings of fact of the Lord Ordinary who heard the evidence and saw it being given, it must ask itself whether it is in a position, on the printed evidence alone, to come to a clear conclusion that the findings of the judge, on a fair reading of his judgment, are so "affected by material inconsistencies and inaccuracies", or so clearly result from a failure to "appreciate the weight or bearing of circumstances admitted or proved", or are so "plainly wrong" (per Lord MacMillan in Thomas v Thomas 1947 SC (HL) 45, 59-60), that it should intervene.
[61] It goes without saying that this applies equally to the Lord Ordinary's assessment of the expert evidence. But in the case of the expert evidence in a case such as this there is an additional constraint. In many cases, perhaps most, experts will give their evidence by reference to scientific principles in their particular field, whether that field be chemistry, engineering, medicine, or (as here) a particular branch of medicine such as psychiatry. The principles upon which they draw will usually be found in text books or peer reviewed articles in respected journals. These provide the building blocks of their evidence, or sometimes help identify the point of departure. Their evidence can be tested by reference to such material; and in a case where a challenge is made to the findings of the judge who heard that evidence, that material will provide a reference point to test both the evidence of the witnesses and the Lord Ordinary's assessment of that evidence. Here, by contrast, it was agreed before the Lord Ordinary that there was no text book or peer reviewed literature, indeed no literature of any sort, on the likely effectiveness or otherwise of low-level emotional support in dealing with the immediate trauma and helping to prevent the onset of psychiatric illness. In those circumstances the experts could only offer their opinion by reference to their own experiences. It would be wrong to say that opinion evidence based only upon the experience of the professional expert witness will never be of value; but, to be of value, it must, as the Lord Ordinary said, be supported by coherent reasoning. We agree with the Lord Ordinary that "simply asserting something and justifying it on the basis of experience is of little or no assistance". An "oracular pronouncement", the mere ipse dixit of an expert in his field, will normally carry little weight because it cannot be tested by cross-examination or independently appraised: per Lord President Cooper in Davie v Magistrates of Edinburgh 1953 SC 34. The same point is made in Dingley v Chief Constable of Strathclyde Police 1998 SC 548 per Lord President Rodger at p.555 and per Lord Prosser at p.604 (the case went to the House of Lords and is reported at 2000 SC (HL) 77). Indeed it may be doubted whether such a pronouncement, without reasoning to support it, is really expert evidence at all. The line between, on the one hand, an expert simply making a pronouncement, justifying a conclusion by a general reference to his experience (or eminence) in the field, and, on the other, an expert providing coherent reasoning as to why that experience leads to the conclusion which he advances, may sometimes be a fine one and difficult to identify. However, that is part of the exercise which the Lord Ordinary is required to do as part of his assessment of the evidence. His findings as to what any particular expert has said (taking his evidence as a whole), and as to what reasoning (if any) the expert has given to support what he has said, and his assessment of the weight to be attached to that opinion and those reasons (if any), will, in a case where there is no written or other objective material against which to test his evidence, be all the more difficult to displace. In the present case the Lord Ordinary concluded that certain parts of the evidence given by Dr Freeman (see para.[64]) and by Dr Fraser (para.[66]) were not supported by reasoning and therefore did not take him very far. As a result, he did not rely on those parts of their evidence. In our view he was fully entitled to take this course. However, we do not understand him to have taken the same view of Dr Rogers' evidence. The challenge to the Lord Ordinary's treatment of his evidence is dealt with below.
[62] Before turning to consider the challenges to the Lord Ordinary's findings of fact, we should put the enquiry into some sort of context. As noted above, Mr Milligan QC referred us to the principles summarised by Hale LJ at para.[43] of the judgment of the court in Hatton v Sutherland. Without wishing to elevate them to any particular status, we accept that they are a useful summary of the relevant principles, though the emphasis on any particular principle will no doubt differ from case to case. Mr Milligan submitted, under reference to principle (2), that, before there can be a duty of care in respect of psychiatric injury, a threshold question is whether this kind of harm to this particular employee is foreseeable. He also submitted, under reference to principle (10), that an employer can only be expected to take steps which are likely to do some good. He contended that there was no evidence that it was foreseeable that the pursuer would suffer psychiatric injury from his exposure to a prisoner's blood during the incident. The psychiatric injury, he said, stemmed from a morbid fear of blood disease fuelled by abnormal or irrational beliefs about the possibility of Hepatitis C lying dormant in the body despite negative blood tests and that ingestion of blood through swallowing was more dangerous than a needlestick injury. Nor was there any evidence that it was likely, or thought likely, that the low-level emotional support which might have been offered to the pursuer if he had been referred to Barlinnie Care Team was likely to do any good in that type of case. The only effective way of dealing with the pursuer's concerns, if there was an effective way of dealing with them, was by referring him to Ruchill, where he would get advice and information from specialists in blood transmitted diseases. Getting low-level emotional support from the medically and psychiatrically unqualified personnel at the Barlinnie Care Team was never going to help; or, in any event, it could not reasonably have been thought that it was likely to help.
[63] This analysis seemed to us to present some difficulties in this case, not because it was inherently flawed but rather because it appeared to go too far. Although he did not advance this argument, the implication from Mr Milligan's submissions on this point was that the defenders had never owed a duty of care to refer the pursuer to the Barlinnie Care Team following upon the incident; if only because there was no evidence that anyone at any time thought, or ought reasonably have thought, that emotional support as offered by the Team would be effective to deal with the pursuer's concerns about blood disease and prevent those concerns leading to a depressive illness. However, the Lord Ordinary found it established (at the end of para.[46]) that following the incident SPS did owe such a duty, and Mr Milligan did not challenge this finding that a duty was owed at that stage. It would appear to follow from this finding that a duty was owed at that first stage that, at least at that stage, the Lord Ordinary was satisfied (2) that it was foreseeable that this pursuer would suffer this kind of harm, and (10) that reference to the low-level emotional support offered by the Barlinnie Care Team was likely to do some good (using the numbering from the summary in Hatton v Sutherland); because those factors are amongst the prerequisites to the existence of a duty. The question of whether the duty flew off, as the Lord Ordinary held that it did, logically ought to be approached from this starting point. In that case the relevant question would be: what changed to cause the duty to fly off? The Lord Ordinary found that it flew off because SPS knew that the pursuer was getting advice and information from Ruchill.
[64] This finding that there was a duty but that that duty subsequently flew off seems to us to introduce an unnecessary level of complication into what might, on one view of the evidence, be seen as a relatively straightforward case. We do not think that, when he found that SPS was under a duty to see that the pursuer was offered early counselling and support of the sort that could be provided by the Barlinnie Care Team, the Lord Ordinary intended to make, by implication, a finding that such low-level counselling and support was likely to do some good. How then could he have found that SPS was under such a duty? The answer lies in the fact that, at the stage of arriving at his conclusion that SPS owed such a duty, the Lord Ordinary did not take into account the expert evidence relative to the actual likely effectiveness or otherwise of low-level emotional support. That evidence was considered only in relation to causation. The Lord Ordinary appears to have based his finding of duty on the fact that SPS believed or understood, "correctly or otherwise" that the support offered by the Barlinnie Care Team would be effective: see para.[45], and see also his reference to "whether accurate or not" in para.[46]. We do not consider that a mere belief or understanding which might be right or wrong is sufficient to give rise to a duty of care to offer that support.
[65] Stepping back slightly, the pursuer's case on record was that it was the duty of SPS "to take reasonable care for the safety of its employees"; and that it was its duty "to take reasonable care to protect its employees from harm, including psychiatric harm". We have no doubt that SPS was under a general duty of care capable of being expressed in such terms. Where we have difficulty, however, is in transposing this general duty into a particular duty of care on SPS, as averred by the pursuer in Condescendence 4 (in the exercise of this general duty),
"to have in place, and to implement, a system whereby the pursuer was provided with early counselling and support to help him deal with the trauma of the incident"
This is a reference to the low-level emotional support provided by the Barlinnie Care Team. The pleading of a general duty of care followed by one or more specific duties is a common feature in our system of pleading. The identification of specific things which could have been done in exercise of the general duty of care to avoid the risk materialising or to minimise its consequences is an essential part of giving fair notice of the case to be advanced. In many cases it is common to identify a system which the defenders have set up, and then go on to aver that, had the defenders done what their own system suggested should have been done, the accident would not have occurred, or the consequences would have been less damaging. We have no difficulty with the existence of a duty to have such a system in place. But there is a danger of shifting from that, which in most cases is self-evident, to a specific duty to take steps in accordance with such a system. Systems by their nature have to cover many eventualities, often in general terms - to find that there is always a duty to act in accordance with the system which has been set up tends to obscure the need to satisfy some of the preconditions which have to be met before a duty can be found to exist, including foreseeability not only of the danger but also of the likely effectiveness of the particular steps to deal with the particular danger which has arisen. The steps identified in the system may not be the only steps which could be taken consistently with the general duty of care; they may be wrong, or no longer in tune with current thinking. For example, there is a suggestion in the Training Manual that critical incident de-briefing might be appropriate. On the evidence before the Lord Ordinary, that response is now regarded as, at best, not helpful and, at worst, positively unhelpful. Other responses identified in the Training Manual may not be relevant to the particular risk which has emerged. Some may amount to no more than a recommendation of kindness and good manners. In such circumstances, how can there be a duty to offer everything that is set out in the Training Manual, or to offer any part of what is set out, unless it is shown on the evidence that what is there set out is addressed to the particular risk and is likely to do some good? Compliance with that system will not necessarily be sufficient to satisfy the general duty of care; and, conversely, a failure to adhere to that system will not necessarily, without more, lead to a finding of breach of the general duty of care: see Morton v West Lothian Council [2005] CSOH 142 at para.[67] (the point was not raised on appeal: [2008] CSIH 18). The same point also arises even in cases where no system has been put in place by the defenders, but the averment of a general duty of care is followed by an averment of specific duties to do various things. Unless it can be said in any particular case that the specific "duty" follows inevitably and as a matter of necessity from the general duty of care, then there is no such duty. We think it better to concentrate on the general duty of care and ask whether, in the circumstances, that general duty has been breached. This approach is in tune with the remarks of Lord Carloway giving the Opinion of the court in Murphy v East Ayrshire Council at para.[20].
[66] This is of some importance in the present case. Standing the general duty of care which self-evidently existed, the true question for decision was whether the defenders were in breach of that general duty. Answering that question would involve a consideration of a number of things about what was reasonably foreseeable at the time of the incident and immediately thereafter. The relevant questions would include: was it reasonably foreseeable at that time that the pursuer was at risk of developing a psychiatric illness? and was it reasonably likely that immediate low-level support of the kind offered by the Barlinnie Care Team would be effective (by itself or in conjunction with expert medical help from other providers) to prevent the onset of that psychiatric illness? While in para.[46] the Lord Ordinary has found as a fact that psychiatric illness was reasonably foreseeable, there was nothing in the evidence, as we understand it, to suggest that anyone thought (or ought to have thought) it likely that such low-level emotional support as was offered by the Barlinnie Care Team would have been effective to prevent the pursuer developing that psychiatric illness. Mr O'Friel might naturally have thought that the failure to refer the pursuer to the Barlinnie Care Team was "disappointing", because as a matter of good practice SPS ought to have looked after its employees. But we do not think that the evidence supported the proposition that SPS ought to have appreciated that it was likely to be effective to prevent the psychiatric illness which developed. More importantly, the Lord Ordinary did not find that proposition established; and his later findings would tend to negate it. In those circumstances there would have been no basis for holding (as did the Lord Ordinary) that SPS was under a duty following the incident to see that the pursuer was offered early counselling and support of the sort that could be provided by the Barlinnie Care Team. Had this approach been followed here, the pursuer's case would have failed at the first stage; questions of breach of duty (involving whether the duty "flew off") and causation would not have arisen.
[67] However, given that Mr Milligan QC did not challenge the Lord Ordinary's finding that, following the incident, SPS was under a duty to offer that level of counselling and support, we do not consider that we should decide this reclaiming motion on that narrow basis. We turn therefore to consider the challenges to the Lord Ordinary's findings of fact. These fell under two heads: (i) in the context of breach of duty, the finding that SPS knew that the pursuer was receiving information and advice from Ruchill; and (ii) in the context of causation, the finding that Dr Rogers (and other experts) did not consider that the low-level emotional support offered by the Barlinnie Care Team would have been effective (whether with other help or on its own) to prevent the pursuer developing a psychiatric illness.
Breach of duty - knowledge that the pursuer was receiving information and advice from Ruchill
[68] The critical findings on this issue are in para.[48] of the Lord Ordinary's Opinion. The Lord Ordinary says, in effect, that in circumstances where the pursuer was receiving advice and support from professional medical services, it was "rather difficult to accept" that SPS remained under a duty to refer the pursuer to its in-house counselling and support service. Once the pursuer was attending the specialised unit at Ruchill, SPS had "no means of knowing that the pursuer might be in need of further therapeutic assistance". The evidence did not demonstrate that SPS must be taken to have known that, "where the pursuer was faced with the specifically medical problem of the possibility of infection and its consequences and was apparently being advised about that by the best qualified available source of advice", support from within the workplace remained a necessary part of the therapeutic process. As the Lord Ordinary put it at the end of para. [48] of his Opinion: "Having taken the view that SPS was under a duty to see that the pursuer was offered early support of the sort that could be provided by the Barlinnie Care Team, it appears to me that on the evidence that is what he did receive and SPS was aware of that, albeit without any referral to the Team."
[69] As counsel for the pursuer pointed out, all of these comments either expressly or impliedly involve a finding that SPS was aware that the pursuer was receiving advice and counselling at Ruchill. If that were not the case, it would be difficult to see why the duty should fly off (though the pursuer says, of course, that even with that finding the duty does not fly off since Ruchill offered something different from the support offered by the Barlinnie Care Team and was not a substitute for that support).
[70] The evidence on this point was brief. But it was sufficient in our view to entitle the Lord Ordinary to conclude that SPS was aware that the pursuer had attended Ruchill and was receiving what was needed by way of advice and counselling from them. That evidence came from the pursuer in his evidence in chief. He explained that, immediately after having been told by Mr Gibb that he should get himself checked out because C was a junkie, he (the pursuer) told Mr Mackie, his supervisor, that he had swallowed blood, was worried about it, and was going to the Medical Centre to get himself checked out: see Transcript Day 1 pp.12-13. At the Medical Centre he was advised to go and see his general practitioner: Day 1 p.16. His general practitioner told him to go to Ruchill (Day 1 p.31), though the timing of that advice is not clear; it may have been after the pursuer had already taken himself to Ruchill. The pursuer's evidence was that he made an appointment with Ruchill on the Monday morning (following the incident the previous Sunday afternoon) and attended at Ruchill on the Tuesday. In response to a question asked in examination in chief about whether he got permission from the authorities to take time off to go to Ruchill, he said this (Day 1 p34):
"Well, it wasnae a matter of getting permission. I was going anyway. If they gave me permission, it didnae matter because I went down to see the supervisor. I mean I cannae even mind if it was the supervisor, and I said to him, 'Look, I'm away to Ruchill', but I probably telt them on the Monday that I was going to Ruchill on the Tuesday.'
The evidence continued in this way:
"Q Who was the supervisor that was responsible for you?
A Mr Bob Mackie
Q And you told him you were going to Ruchill?
A Oh aye. Oh aye.
Q And what did he say?
A Well I telt him, 'I'm going to Ruchill' and that was it. I mean, end of story. I was going to Ruchill.
Q Did you tell him why you were going?
Q Can you remember what you told him?
A Well, probably the same as what I telt him on the Sunday afternoon, that, 'I'm concerned about my health.'"
That passage continued with the pursuer saying that when he came back from Ruchill he walked into the Governor's office and saw Mr Lamont, his unit manager (a superior to Mr Mackie), who told him that he had heard what had happened and that they should set up a procedure for dealing with things like this.
[71] Nothing in that evidence suggests that the pursuer told Mr Lamont that he had been to Ruchill. But it was evidence that he told Mr Mackie that he was "going to Ruchill", and told him the reason for going. When he came to give evidence, Mr Mackie said that he did not think that he had known that the pursuer had been to Ruchill (Day 3 p.353). Nor did Mr Lamont (Day 3 p.385). But the Lord Ordinary, taking the evidence as a whole, was entitled to accept the pursuer's evidence on this point. Mr Mackie was clearly in a position of authority over the pursuer. His knowledge was that of SPS. That was evidence, therefore, which entitled the Lord Ordinary to come to the conclusion that SPS knew that the pursuer had attended Ruchill, and from which SPS could legitimately draw the inference that he was being given at Ruchill such advice, information and counselling as was considered appropriate. The challenge to the Lord Ordinary's findings of fact in this regard must fail.
[72] This was a critical finding standing the way the case was approached by the Lord Ordinary and in submissions to us. The Lord Ordinary proceeded from this finding to ask, in effect, this question: if SPS knew that the pursuer was receiving advice and treatment at Ruchill, why should they have continued to think that they needed to refer him for low-level emotional support to the Barlinnie Care Team? His answer was that there was no reason why they should have continued to think that he needed to be referred to the Barlinnie Care Team. We do not think that that conclusion can be faulted. The Lord Ordinary found that the problem was assessed by SPS as being (or, perhaps more accurately, was assumed by SPS to be) a medical one, relating to the ingestion of blood and the risk of infection that that presented. Whether that assessment or assumption was right or wrong, it was not suggested that it was one which SPS could not reasonably have made. The Barlinnie Care Team did not offer medical advice. No one there was medically or psychiatrically trained. In those circumstances, the role of the Barlinnie Care Term would have been to refer the pursuer for expert medical assistance. He got that in Ruchill, and also from his general practitioner. Unless SPS were unreasonable in thinking that the problem was a purely medical one, or ought reasonably have thought that the problem was also a potential psychiatric problem that was reasonably likely to be averted by some kind of low-level emotional support, SPS could not be criticised for failing to appreciate that he still required to be referred to the Barlinnie Care Team. Reference to the Barlinnie Care Team was only necessary if it could reasonably have been foreseen that it would do some good. The Lord Ordinary made no finding that it could reasonably have been foreseen that it would do some good. Indeed, his reasoning implies a finding that there was no reason in the circumstances for SPS to believe that it would do any good. On the evidence which we have seen, that was a finding which he was entitled to make. On the evidence led at the proof, it might be that he could not have made any other finding on this question.
[73] This analysis by the Lord Ordinary proceeds on the basis that the duty flies off because in the changed circumstances it was not reasonably foreseeable that reference to the Barlinnie Care Team was necessary or would do any good. Subject to the point we have made in paras.[65]-[66] above, we agree with that analysis and the reasons for it. We should emphasise that that analysis holds good whatever might be the position in fact about the likely effectiveness of emotional support of the sort offered by the Barlinnie Care Team, a matter considered by the Lord Ordinary when dealing with the question of causation. Even if, on the expert evidence, the Lord Ordinary had accepted that the emotional support offered by the Barlinnie Care Team would in fact have been effective to prevent the onset of the psychiatric illness suffered by the pursuer, there was, as we understand it, no evidence before him to the effect that, in circumstances where the pursuer was getting trained medical assistance at Ruchill, SPS ought reasonably have foreseen that emotional support such as that provided by the Team was still required or likely to be effective. The evidence relevant to the existence of a duty of care and to the question whether, in the particular circumstances, that duty has flown off is quite different, in this respect, from that relevant to the question of causation.
Causation - effectiveness of emotional support of the sort offered by Barlinnie Care Team
[74] In light of our conclusion on the breach of duty point, the question of causation does not arise. We therefore propose to deal with it more briefly than we might otherwise have done.
[75] The Lord Ordinary held that he could take little from the evidence of Dr Fraser and Dr Freeman since they did not provide the court with any reasoning to support their respective opinions. He focused his attention on the evidence given by Dr Rogers. Summarising from para.[66] of his Opinion, the Lord Ordinary's understanding of Dr Rogers' evidence was that the person providing the counselling necessary to prevent the development of the pursuer's psychiatric illness would have had to know about the risks of infection and would have had to have had psychological training. The counselling might have required to be over a period of 8 weeks. That sort of counselling was not available from members of the Barlinnie Care Team, who did not have the knowledge, were not psychologically trained and did not offer the intensive sort of intervention suggested by a programme lasting 8 weeks. He took Dr Rogers to be saying that early psychological intervention might have been successful in eliminating the crucial pathological feature which produced the pursuer's depression and his fear of infection, provided that it was delivered by people who knew what they were talking about and had been psychologically trained. The service offered by the Barlinnie Care Team would have "helped" but would not have been sufficient on its own. That, he said, was not the pursuer's case. The pursuer's case, as the Lord Ordinary understood it, was that the low-level emotional support offered by the Barlinnie Care Team would have made a difference to the outcome. According to the Lord Ordinary, Dr Rogers did not support that case in his evidence. He understood his evidence to have been that a very different sort of counselling than that on offer from the Barlinnie Care Team might have prevented the pursuer's depression. Nor did the Lord Ordinary consider that the other experts gave reasoned support for the pursuer's case. There was no evidence which gave the Lord Ordinary reason to believe that a cup of tea and a chat would have made a difference.
[76] The high water marks for the pursuer's criticism of this finding are certain passages in the transcript of Dr Roger's evidence. In his evidence in chief there had been discussion about two stages of early intervention: stage 1, counselling (by the Barlinnie Care Team); and stage 2, referral (to Ruchill). The Lord Ordinary sought clarification and gave this brief summary of what he understood Dr Rogers' evidence to be (at Day 3 p.443) :
"... stage 1 or the first stage is reassurance, factual information and emotional support which is ... to be contrasted with counselling as defined by Dr Rogers as one-to-one with a trained person, someone who's trained in the diagnosis and assessment of anxiety and depression."
Dr Rogers confirmed that that was correct. There then followed these exchanges between counsel and Dr Rogers (at p.444):
"Q This document here [referring to the Training Manual] if it had been deployed at this first stage, would it have been helpful to Mr Pratt?
A Yes, because this would seem to cover the various points which we described as step 1. You know, it's about listening, about being sensitive, about picking up these anxieties.
Q Now, looking at what we know about Mr Pratt ... do you think that an intervention of the sort that's provided for here on its own would or would not have been sufficient to meet the needs of Mr Pratt?
A Well, I think on the balance of probabilities this type of approach would have been helpful and I think on the balance of probabilities it would have stopped his depression and anxiety from spiralling out of control the way that it did.
We pause to interject that the Lord Ordinary may not have picked this up in his notes. In para.[66] of his Opinion the Lord Ordinary records Dr Rogers as saying that the sort of support described in the Training Manual would have been "helpful" as opposed to "sufficient". The Lord Ordinary concluded that since Dr Rogers had said that low-level emotional support offered by the Barlinnie Care Team was helpful but not sufficient, he must be saying that early intervention could only have been successful in preventing the on-set of mental illness if it was delivered by people who knew what they were talking about and had been psychologically trained (i.e. by people other than the Barlinnie Care Team). With the advantage of having read the transcript of evidence, which the Lord Ordinary did not have, we consider the Lord Ordinary was in error in this particular passage in his summary of Dr Rogers' evidence.
[77] That passage in the evidence continued as follows (at pp.444-6):
"Q And do you think, therefore, it is more likely than not that he would not have needed to progress to what we call stage 2?
A Well, he might have needed to progress to stage 2, but I don't think he would have needed to progress to the ... what he eventually in the event did proceed to, which was cognitive behavioural therapy at The Priory Hospital in Glasgow. I think that's like a third stage. That's hospital treatment, albeit outpatient treatment, which I don't think, in my opinion, I don't think would have been necessary if the anxiety had been picked up at a very early stage.
Q ... Could I ask you if you feel that he would never have needed to go to the length of stage 3, the cognitive behavioural therapy, and I think I've understood you as saying that stage 1 would have, on the balance of probabilities, been sufficient. I'm just checking ... whether you think it was, therefore, more likely than not that Mr Pratt would not have needed to proceed to what we call stage 2?
A I think it's still possible that he might have needed to see someone for anxiety reduction techniques, so stage 1 on its own might not have been sufficient. It may very well be the case that he would need to see somebody one-to-one for early treatment for anxiety, but what I don't think is his anxiety and depression would have developed to the extent that it did requiring referral to the specialist services at The Priory Hospital."
Dr Rogers was asked some more questions, particularly about timing. He thought that the early intervention might last perhaps 8 weeks, with the individual seeing someone like a counsellor or a nurse therapist for anxiety reduction, perhaps once a month for 8 weeks. Given the reference to a nurse therapist this estimate of 8 weeks clearly refers to stage 2, or 1 and 2 combined. The point was raised again in this passage (at p.450-1) in which reference had been made to the role of the Barlinnie Care Team in listening and being sensitive to people's anxieties:
"Q If somebody had, with this sort of guidance in their hands, tried to follow it in Mr Pratt's case, do you believe that it would have affected the outcome?
A I think if someone had been able to be sensitive to his anxieties at an early point, yes, I do believe it would have affected the outcome. I think it would have been helpful and it would, on the balance of probability, it would have prevented his anxiety and depression from developing into the serious illness that, in the event, it did."
Again it is clear that Dr Rogers does not stop at "helpful". He says that on balance of probabilities it would have "prevented" the development of a mental illness. He appears to say on occasions that stage 2 (counselling and advice at Ruchill) might also have been necessary. But it is clear that, in these passages, he is expressing the opinion that the low-level support offered by the Barlinnie Care Team would, on the balance of probabilities, have been effective, whether on its own or combined with stage 2. Dr Rogers returned to the same point in a different context in cross-examination at Day 3 p.495 and Day 4 p.525.
[78] Mr Milligan rightly reminded us that we should not take passages in the evidence in isolation. Neither of Dr Rogers' written reports appeared to provide support for the pursuer's case. In the earlier parts of his evidence in chief, he spoke of the likely emotional reaction of someone in the position of the pursuer to an incident such as this, and the possibility that such an emotional reaction might not be assuaged or relieved by accurate information conveyed in a wholly rational manner. This was particularly so once the anxiety had taken root. In his report Dr Rogers had been critical of the absence of early intervention to alleviate early anxiety. That information should have taken the form of counselling and psychological support as soon as possible after the incident. There was a high probability that such intervention then would have been successful. That was because the pursuer had no significant past psychiatric history. He was not prone to mental illness. He had been in the Army (including a stint on active duty in Northern Ireland) and in the prison service, but had not developed a major mental illness. He had coped well with stressful situations. He was mentally tough. In those circumstances the prognosis would have been good after the incident if there had been early intervention to provide reassurance and intervention. Had there been early intervention, providing reassurance, factual information and emotional support, someone would have picked up the fact that his reaction to the incident was transforming itself from normal anxiety to a depressive illness. At that stage his condition would have been treatable. It was submitted for the defender that Dr Rogers was there contemplating intervention by people with medical and psychological training. At Day 3 p.439, Dr Rogers said that such intervention might be administered by "for example, psychologists, nurse therapists". He said: "they don't have to be doctors" and "they don't have to be medically trained"; see generally Day 3 pp.439-40. But he had in mind, as an illustration, a nurse therapist "with experience in the diagnosis and treatment of anxiety and depression"; there are, he said, "counsellors who are specially trained to work in this area". He contemplated "one-to-one individual work with trained staff who are familiar with the concept of anxiety and depression and can pick up these early warning signs"; or, as he explained in answer to the Lord Ordinary, a one-to-one session with a person who is "trained in the diagnosis and assessment of anxiety and depression". It was submitted that those passages emphasised that the persons administering stage 1 intervention were trained professionals, not the type of untrained prison officers who made up the Barlinnie Care Team. However, it should be noted that at this stage Dr Rogers was running together as stage 1 what he later split into stages 1 and 2 (see above).
[79] After the passage from Day 3 pp.443-451 quoted above, Dr Rogers was cross-examined. It is not necessary to quote large sections of his evidence. Dr Rogers agreed (at Day 3 p.469) that the pursuer should have been reassured by the medical centre telling him that there was a very low chance of him having the infection; but he added: "but I think it's more ... it's about the way it's done ... sitting down and listening to someone's anxiety, being sensitive to what's happened and going through it in some detail." The people telling him these things would need to know the risks and have some psychological training. This point was repeated in answers to the Court at Day 4 p.526 when he agreed that the support provided by his employers (ie by the Barlinnie Care Team) in terms of listening, being sensitive to his anxiety and perhaps responding to his anxiety symptoms "would have to be given by somebody with psychological training and an understanding of HIV and Hep C", though he explained that "when I say psychological training, I don't mean by a fully trained psychologist". There was then this exchange with the Court:
"Q Right, so what we're not talking about is simply a colleague sitting down and chatting. It has to be something more than that?
A A bit more than that. It would have to be someone who is a health care professional - I mean typically a nurse - a nurse therapist who can see someone fairly quickly, listen to their anxieties and perhaps provide them with some emotional support and reassurance."
Mr Summers submitted that that insistence on a trained health care professional was not referring to the sort of emotional support offered by the Barlinnie Care Team. We are not persuaded that he is right about that. In his next answer in cross-examination (Day 4 p.527) Dr Rogers emphasised that "it would have to be someone who is trained, not just an untrained colleague". It seems to us that that contrast between someone who is trained and an untrained colleague could only really have any impact if Dr Rogers was referring to the low-level emotional support offered by the Barlinnie Care Team, since it was only in that context that there might be the possibility of the support being provided by the pursuer's untrained colleagues.
[80] We should note one further passage in re-examination (Day 4 pp.548-9) in which Dr Rogers returned to his thesis that the emotional support and the necessary medical information about risk and treatment could come from different providers:
"Q ... in your evidence ... [you] desiderated a nurse practitioner providing ... both components, yes?
A Yes.
Q ... bearing in mind the nature of Barlinnie, would it not have been possible or might it not have been desirable for the emotional support that you desiderate to have been provided by fellow colleagues within the Prison Service and didn't require to come from a single nurse practitioner?
A Yes, emotional support could have been provided by colleagues. Yes, I'll accept that.
Q And would there have been therapeutic advantages in the support and the understanding of a listening ear coming from colleagues?
A Well, the advantage would be again immediacy and the understanding of the particular demands of that particular workplace.
Q ... Let us say that good information was supplied by Ruchill but no emotional support. Let us say that alongside the fact-based information from Ruchill there had been emotional support, help and sympathy from colleagues within the Scottish Prison Service. Would that have, together, provided the sort of intervention you desiderate?
A Yes, absolutely.
Q ... The sympathy and emotional support, ... is that better delivered by the Prison Service than by, say, an unknown individual in Ruchill or some other establishment?
A Well, I think it can be better, yes. It can be better because it is geared to the particular needs and particular situation, so, yes."
Dr Rogers gave further reasoning in support of the likely effectiveness of early intervention at Day 4 pp.564-5. He then went on in conclusion in re-examination (at Day 4 pp.565-6) to reiterate that had the pursuer had the benefit of that early intervention he might still have developed an anxiety depressive disorder but it would have been less severe and he would possibly have returned to duty as a prison officer. He could have returned to work within 6 months and remained at work.
[81] We approach the question of whether to set aside the Lord Ordinary's findings of fact in this regard - ie his findings as to the effect of Dr Rogers' evidence - with these considerations in mind. First, our role as an appellate court is constrained in the manner set out in para.[60] above. We only have transcripts of the evidence, whereas the Lord Ordinary heard and saw the witnesses. While the transcripts allow the appellate court to read the words used by the witness, we cannot hear the voice or see the body language. The personality and demeanour of witnesses, which printed words alone cannot capture, play a large part in an assessment of their reliability: Simmons v British Steel per Lord Hope at para.9. Emphasis and insistence, hesitation, reticence and resignation, and, occasionally, sarcasm and frustration, seldom come through on the written page. A confident or defensive attitude struck by the witness will not be picked up in the transcript. So the court must be careful to ensure that it is satisfied on the written evidence alone that the Lord Ordinary has gone wrong in one or more of the ways mentioned above. Secondly, this applies equally to the Lord Ordinary's assessment of expert evidence as it does to his assessment of evidence of fact. Sometimes in the case of expert evidence the Lord Ordinary's assessment of where the correct view lies may be tested by reference to scientific papers and other materials which have been referred to in the evidence and which may (though not always) provide an objective reference point against which that assessment may be judged. But that benefit is not available to us in this case, where it is agreed that there is no scientific literature bearing directly on the effectiveness or otherwise of the sort of low-level emotional support offered by the Barlinnie Care Team. Thirdly, the same constraint also applies to the Lord Ordinary's assessment and understanding of the evidence given by the witness (whether a witness of fact or an expert witness). This may not at first sight appear obvious. But a witness may be in the witness box for many hours, in some rare cases for days. His evidence will emerge in his evidence in chief and may be subject to revision in chief, in cross-examination or even in re-examination. In the case of an expert witness, his evidence in chief will be based on (or at least foreshadowed by) his expert report lodged in process; but then the evidence will be developed and will alter under both friendly and hostile questioning. He may be brought back in re-examination to a position he adopted earlier, or he may put forward a further version of his thesis. The task of the Lord Ordinary in considering that evidence and recording it in his judgment will be to understand, as best he can, and set out the import of what the witness is really saying. That too will be influenced not just by the words the witness has used but also by his less obvious non-verbal indications. The summary in the judgment will not necessarily include everything the witness has said; even the longest judgments are too short for that. So too, as Lord Hoffman said in Piglowska, any findings in the judgment are always surrounded by a "penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance". It follows, in our view, that it would be wrong for an appellate court to interfere with the Lord Ordinary's assessment of what the evidence was, simply on the basis that on examination of the transcript certain passages appear to support a different analysis.
[82] In the present case the Lord Ordinary clearly took the view that the focus of Dr Rogers' evidence was on the need for immediate support from someone who was trained, not just an untrained colleague. He suggested that it might be a nurse therapist who could "see someone fairly quickly, listen to their anxieties and perhaps provide them with some emotional support and reassurance". But he was not prescriptive about the type of trained person. Clearly that sort of support could not come from the Barlinnie Care Team. In parts of the evidence summarised in paras.[78]-[80] above, Dr Rogers appears to have been supportive of the idea that emotional support from untrained work colleagues might well be useful and effective in circumstances where the support provided by the medically trained individuals did not include such support and reassurance. For example, as was suggested in a question in re-examination, if the relevant factual information and advice was supplied by Ruchill but without the emotional support needed to help the individual cope with the situation, emotional support might be provided from people at the workplace, from the Barlinnie Care Team. However, all Dr Rogers was saying, on one view of the evidence, was that the emotional support did not necessarily have to come from the same source as the support from trained people such as those at Ruchill. On that view of the evidence, he was not saying that in every case, for the immediate support to be effective, it had to comprise both advice and information from trained people (such as was available at Ruchill) and emotional support from a unit such as the Barlinnie Care Team. The Lord Ordinary was entitled to conclude that what Dr Rogers really considered to be important was the advice and information delivered by trained personnel, rather than the emotional support offered by the Barlinnie Care Team. It may be that that conclusion is expressed without the nuances and qualifications which the evidence merited. But we are satisfied that he was entitled on the evidence to come to that view. In so far as the short passages relied upon by the pursuer (set out at paras.[76]-[77] above) tend to go beyond this, we consider that the Lord Ordinary was entitled to take the view that they went too far, and did not represent Dr Rogers' considered opinion. Reading the evidence as a whole, we do not consider that the challenge to the Lord Ordinary's findings of fact in relation to causation can succeed.
[83] It is not necessary for the purpose of this reclaiming motion to consider in detail the evidence of Dr Fraser and Dr Freeman on this point. The Lord Ordinary discounted their evidence on the basis that no reasoning was provided to support it. We agree. He was entitled to take that view. It was not seriously suggested that the pursuer could succeed unless the Lord Ordinary's findings about Dr Rogers' evidence could be displaced. Since we have found that the challenge to those findings must fail, we need say no more about this other evidence.
[84] For the above reasons, the reclaiming motion falls to be refused.