Psychiatric Injury and Stress at Work

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MURRAY STABLE SEMINAR ON PSYCHIATRIC INJURY AND STRESS AT WORK

GLASGOW CITY COUNCIL, 25 OCTOBER 2004

 

I promised that a fuller version of the handout would be made electronically available at this address: I am afraid it does not incorporate the interesting discussion at this seminar.

Some recent stress at work cases: all are Court of Session unless otherwise stated.

Stress at work damages actions are very hard for a pursuer to win; no such cases have so far succeeded in Scotland (although a few have achieved settlements). The first hurdle for a pursuer to overcome is demonstrating that they actually suffer from an illness, not simply 'distress' or 'unhappiness'…

Rorrison v West Lothian Council, Lord Reed, 21 July 1999; 2000 SCLR 245 (see as an example of a case in which allegations of serious bullying and harassment causing real distress were not enough);
“There is no suggestion that she has ever been diagnosed by a psychiatrist as suffering from a recognised psychiatric disorder, and there is no suggestion that her condition is recognised by any psychiatrist or body of psychiatric opinion as constituting a psychiatric disorder. It follows that an action based on negligence cannot succeed.”

… and if so, that this was foreseeable:

Stevenson v East Dunbartonshire Council, Lord Bonomy, 29 November 2002; 2003 SLT 97
Allowing proof “with considerable hesitation”… “A number of cases at first instance demonstrate just how difficult it is for any pursuer to establish the foreseeability of psychiatric illness”.

It is not enough for the pursuer to show that a particular job was stressful, or that there was a risk of stress in general, any more than it is a defence for an employer to suggest that most people would not find the pursuer's job stressful:

Taplin v Fife Council, Lord Philip, 17 December 2002; 2003 SLT 653
"no job is to be regarded as intrinsically dangerous to mental health. Stress is a subjective concept. People differ widely in their capacity to withstand stress and pressure. An employer cannot know what is going on in an employee's mind. Some people may conceal feelings of stress because they do not want it to be thought that they cannot cope. It is not the job, but the interaction between the individual and the job which causes the harm. In that situation, before a duty of care to prevent psychiatric injury can arise, the employee must establish that a harmful reaction to the pressures of the workplace, in the form of actual psychiatric injury, was reasonably foreseeable in him as an individual.”

MacRitchie v Scottish Ministers, Edinburgh Sheriff Court, Sheriff Principal Macphail, 21 July 2004;
"if the employer knows or ought to know that an individual employee is liable to experience psychiatric illness caused by his or her reaction to his or her working conditions, however unexceptionable these may be when objectively considered, it is for the employer to consider whether there is anything he should do in the exercise of his duty of care towards that particular employee. 'If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of breakdown in mental or physical health, then the employer will have to think what can be done about it.'
Hatton at 14h-j, para 27.) In some unfortunate cases there may be nothing he can reasonably be expected to do. But it is not an answer to a charge of breach of duty to say that there was nothing objectively wrong with the employee's working conditions.”

Green v Argyll & Bute Council, Lord Bonomy, 28 February 2002 (see as another example of a case in which a clearly sympathetic pursuer with many justified grievances was still unsuccessful);
"I have been unable to identify any particular feature of the pursuer's circumstances, that suggested a risk that he might suffer psychiatric illness, and that proper supervision would probably have identified.… I have not been persuaded by the evidence that the defenders either were aware or ought to have been aware of factors indicative of a likelihood that the pursuer would suffer mental injury because of his workload.”

But it is no defence for an employer to suggest that stress is really none of their business:

Cross v Highland and Islands Enterprise, Lord Macfadyen, 5 December 2000; 2001 SLT 1060, 2001 IRLR 336
“it cannot be said that liability in respect of psychiatric injury can arise only where that injury takes the form of nervous shock, i.e. a sudden assault on the nervous system. I therefore reject Mr Jones's submission to that effect. If that submission were sound, it would mean that an employer who knew without doubt that the working conditions in which he required an employee to operate were so stressful that it was objectively likely that, over time, the employee would succumb to psychiatric illness, and who nevertheless continued to subject his employee to those conditions despite growing signs that he was developing such psychiatric illness, would incur no liability for the loss and damage suffered by the employee as a result of developing the psychiatric illness. That would, in my opinion, be a quite unacceptable position for the law to adopt.”

The leading cases are now two English decisions; Hatton in the Court of Appeal and Barber in the House of Lords (note some differences in perspective between the majority and minority in Barber). In the light of these, all earlier and later first instance decisions are best seen merely as examples:

Hatton v Sutherland, English Court of Appeal, 5 February 2002; 2002 ICR 613, 2002 2 All ER 1
"43. From the above discussion, the following practical propositions emerge:

(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (para 22). The ordinary principles of employer's liability apply (para 20).

(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): 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) (para 25).

(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (para 23). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (para 29).

(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health (para 24).

(5) Factors likely to be relevant in answering the threshold question include:

(a) The nature and extent of the work done by the employee (para 26). Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?

(b) Signs from the employee of impending harm to health (paras 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers (para 29).

(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (para 31)."

One of the four cases decided in Hatton was successfully appealed to the House of Lords:

Barber v Somerset County Council, House of Lords, 1 April 2004; 2004 1 WLR 1089, 2004 2 All ER 385
(the references are to the Court of Appeal decision in
Hatton)

"64. In particular the Court of Appeal has recognised that although injury which takes the form of psychiatric illness is no different in principle (for a primary victim) than physical illness or injury, the causes of mental illnesses

'. . .will often be complex and depend upon the interaction between the patient's personality and a number of factors in the patient's life. It is not easy to predict who will fall victim, how, why or when" (para 5).'

This uncertainty has two important consequences. First, the reaction of some of Mr Barber's colleagues—"We are all overworked, and your workload is no worse than anyone else's"—is entirely understandable, but ultimately irrelevant. Overworked people have different capacities for absorbing stress, and different breaking points. Hence (and this is the second point) the importance of what the employee tells the employer. Senior employees—especially professionals such as teachers—will usually have quite strong inhibitions against complaining about overwork and stress, even if it is becoming a threat to their health. Personal and professional pride, loyalty to the head teacher and to colleagues, and the wish not to add to their problems and workload, may all influence a teacher not to complain but to soldier on in the hope that things will soon get a little better.

65. The Court of Appeal set out its view on this point in para 29 of its judgment:

'But when considering what the reasonable employer should make of the information which is available to him, from whatever source, what assumptions is he entitled to make about his employee and to what extent he is bound to probe further into what he is told? Unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job. It is only if there is something specific about the job or the employee or the combination of the two that he has to think harder. But thinking harder does not necessarily mean that he has to make searching or intrusive inquiries. Generally he is entitled to take what he is told by or on behalf of the employee at face value. If he is concerned he may suggest that the employee consults his own doctor or an occupational health service. But he should not without a very good reason seek the employee's permission to obtain further information from his medical advisors. Otherwise he would risk unacceptable invasions of his employee's privacy.' [original emphasis]

This is, I think, useful practical guidance, but it must be read as that, and not as having anything like statutory force. Every case will depend on its own facts and the well-known statement of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783, remains the best statement of general principle:

'. . . the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent'."

Here is a New Zealand comparison:

AG v Gilbert, New Zealand Court of Appeal, 14 March 2002;

Note however that quite different considerations arise if the claim is for PTSD or where the pursuer suffered physical injury. For two examples of this class of case, see:

Collins v First Quench Retailing, Lord Carloway, 31 January 2003; 2003 Rep LR 42

Donachie v Manchester Police, English Court of Appeal, 7 April 2004;
"28. If I am correct in my view that Mr Donachie is a primary victim because the Chief Constable's breaches of duty gave rise to a reasonable foreseeability of physical injury, albeit of a different form from the one caused by those breaches, any pre-existing vulnerability of Mr Donachie to stress causative of psychiatric injury is irrelevant. The Chief Constable must take his victim as he finds him.… 29. Accordingly, the fact that the Chief Constable was not, and could not reasonably have been expected to be, aware of any particular vulnerability of Mr Donachie, by reason of hypertension possibly causative of psychiatric injury, is no impediment to Mr Donachie's claim under the heading of reasonable foreseeability or in causation.”

So, to conclude, an Irish decision which, very unusually for a 'stress at work' case, came from the private sector:

McCotter v McNally & Co, Northern Irish High Court, 24 September 2004,

“The test is whether there were indications of impending harm arising from stress at work that were plain enough for the defendants to realise that they should do something about it.”

Possible future changes in the law:

The whole question of liability for psychiatric injury has recently been considered by the Scottish Law Commission which has issued a report with a draft Bill:

Report 196  Damages for Psychiatric Injury [PDF]`

"3.25 [The restrictions proposed] will be important in situations where reparation is sought for stress- related mental harm, particularly harm caused by stress at work. Persons who have responsible jobs are expected to accommodate the stress inherent in their work and can reasonably be expected to endure any resultant mental harm without seeking reparation. Similarly, there are professions, the armed forces, firemen and the police for example, which involve exposure to personal danger and participation in horrifying situations. Once again society expects that members of such professions should be able to accommodate the stresses inherent in their work and that any resultant mental harm should be endured without seeking reparation, though it might entitle the victim to an occupational pension on the grounds of ill health. It is important to emphasise that the restriction applies only in relation to mental harm caused by the normal stresses or vicissitudes of the type of life the pursuer leads. "

 

Jonathan Mitchell, QC

With thanks to Robert Milligan, Advocate

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