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Wands v Fife Council ? Kirkcaldy Sheriff Court, 5 August 2009


The Pursuer raised an action of damages against the Defenders for loss and damage to her physical and psychological health. She claimed that the Defenders directly, and the teaching staff for whom they were vicariously liable, had failed to protect her from bullying. The Pursuer averred that she had been subjected to a systematic campaign of physical and verbal abuse from other pupils. This began at nursery and continued throughout both primary school and secondary school. At Debate, the Defenders argued that the claim should be dismissed as fundamentally irrelevant. The parties agreed that the case did not involve any breach of a statutory duty - it was a case based on professional negligence. The Defenders' main criticism was that the Pursuer's pleadings failed to set out dequately the type of facts necessary to meet the established legal tests for liability in cases such as this and also that the lack of specification was so acute that they were denied fair notice of the case that they must answer at Proof. They referred to the well known test for professional negligence in the case of Hunter v Hanley. They also referred to a number of cases involving the alleged negligence of local authorities. It was suggested that liability in such cases would arise from “exceptional, specific and identifiable mistakes" – and this meant that averments demonstrating the Defenders' “manifest incompetence” were necessary. In this case, the Pursuer had made real attempt to point to any specific act of manifest incompetence on the part of the Defenders during her education. There had been no attempt to define “bullying” or to set out what reasonable steps the Defenders ought to have taken to make sure that anti bullying strategies were reasonably implemented. The Pursuer had also averred details of incidents that had take place outwith school hours or school premises and the Defenders could not be held responsible for alleged wrongdoings outwith their legal and physical control. The Pursuer's averments of loss were criticised on the basis that there were no relevant averments to link the Pursuer statements to any physical injury or recognised psychiatric illness. The Pursuer had referred the panic attacks, low self esteem and moods, but this did not amount to psychiatric illness. The Pursuer was not offering to prove that the individual acts of harm, even taken together, were causally linked to any of her alleged symptoms. She was not offering to prove that any action or inaction by the Defenders was causally linked to her loss or damage. At the outset of the debate, the Pursuer had conceded that her case was based on “harm in the round” and that she was not able to aver individual acts of negligence on a precise time line. It had been conceded that if the Sheriff held that such pleadings were required for the Pursuer's case to succeed, then it must fail. The Pursuer argued that her averments described what anyone would understand as bullying. She offered to prove that the Defenders had failed to implement their own established behaviour management policies, either directly or through staff. She offered to prove that they failed to meet appropriate professional standards in their selection of the anti bullying techniques that they did use and that amounted to negligence. The Pursuer argued that the correct test of delictual liability in the present case involved the three essential ingredients of foreseeability, proximity and the court being satisfied that, in all the circumstances, imposing liability on a Defender would be fair, just and reasonable. The Sheriff had to decide whether to dismiss the action.