Steven Smart: ‘Reasonably foreseeable’ is the test in case of damages

Everyone knows that if Party A sustains injury, loss or damage as a result of the negligence of Party B, they are entitled to recover damages, aren’t they? Isn’t that always the case? What happens when things spiral beyond what might be reasonably anticipated? The recent case of Brian Miller v North Lanarkshire Council provided a useful insight into the approach the Scottish Courts take.

Steven Smart is Partner & Head of Glasgow Office, Horwich Farrelly
Steven Smart is Partner & Head of Glasgow Office, Horwich Farrelly

The action concerned an accident which occurred in March 2017. Mr Miller was attending a school operated by the defender when his foot caught in a cracked paving slab. He lost his balance and fell, sustaining physical injuries. He intimated a claim to the defender for damages.

The unusual background here was that the pursuer had been attending the primary school to carry out teaching duties once a week for some 10 years prior to the accident, as part of an agreement between his employers (a university) and the defender. In August 2018, the defender informed the pursuer’s employers that he was not to teach at their schools in the upcoming academic year, pending his legal claim. The pursuer stated that he suffered from stress and anxiety as a result, which then developed into a psychiatric condition.

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The pursuer asked the court to award damages for both the physical injuries suffered during the accident and also for the consequences of the psychiatric injury sustained after he was no longer permitted to teach at the defender’s school.

It was argued that the claim for damages arising from the psychiatric injury should be discarded from the action. The defender said that the psychiatric injury was not caused by the accident which formed the basis of the accident. They also submitted that the condition was too remote from the accident which happened some 17 months earlier and therefore ought not to attract an award of damages.

Sheriff McGowan carefully considered the history of the law in this area and observed that the essential test is whether the damage complained of was “reasonably foreseeable”. Was the consequence of a kind which ought to have been reasonably contemplated by the defender?

When applying that test, it must be seen through the eyes of a reasonable person at the point in time when the alleged cause of the damage occurred, ie, the date of the accident. Was it reasonably foreseeable to the defender in March 2017 that the tripping accident may cause the psychiatric condition that developed in August of the next year?

Sheriff McGowan accepted that as a matter of fact, the pursuer would not have developed the psychiatric condition had the accident not occurred.

However, this did not necessarily satisfy the legal test. A number of factors had to be weighed up. The condition did not develop until a significant period of time after the accident. It was caused by the decision not to allow the pursuer to teach at the school, rather than by the accident. The pursuer did not argue that this was a decision that the defender was not entitled to make under the agreement.

It was reasonably foreseeable that the pursuer would have sought legal advice and intimated a claim. The circumstances beyond that were not. The defender could not have anticipated that the pursuer’s interpretation of a “holding position” pending the claim would be that he was permanently prohibited from teaching at their schools, nor that this would in turn cause psychiatric injury. The defender had no knowledge to suggest that the pursuer may develop a psychiatric condition. They were not his employer, nor were they notified about the onset of the illness.

In any event, these things all happened long after the accident, and could not have been reasonably foreseen when it occurred. Therefore, the claim for damages in respect of the psychiatric injury was not allowed to proceed.

A gradual move away from the use of legalese other than when strictly necessary, increased availability of Court decisions and the rise of the internet resulting in legal articles and opinions being readily accessible have all contributed to the public being more informed about the general principles of litigation in Scotland.

Nevertheless, this case serves as an excellent reminder of the complexities and nuance that can still arise. As Court systems are adapted to provide easier access to justice for party litigants, the ability to identify and address essential legal tests still remains.

Steven Smart is Partner & Head of Glasgow Office, Horwich Farrelly