Work Related Mental Stress: UK and Irish Courts Approach

Introduction:

The Irish courts in general have had a reputation for overlooking mental stress when it comes to liability and the quantification of damages. This attitude was inherited from our neighbouring common law jurisdiction of the United Kingdom. According to Lord Wensleydale way back in 1861; “mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.” This attitude towards mental health has slowly been changing in recent years with the enactment (in Ireland) of new legislation such as the Safety, Health and Welfare at Work Act 2005 which makes provisions to encapsulate and deal with the issue of mental stress at work, validating it as a serious claim.

Legal Recognition of Mental Stress and Policy Concerns:
Until relatively recently, the Irish and UK courts held that an employer owes a duty of care to all employees in his workplace in accordance with the neighbour/proximity principle laid down by Lord Atkin in the case of Donoghue v Stevenson. However, it was undecided how such a duty could be effectively gauged in relation to mental/occupational stress cases. Naturally, there was a justified level of concern that allowing cases, where mental stress was the sole damage, to receive adequate award from the courts could in turn lead to a certain amount of abuse, an unnecessary rise in litigation, and people in general playing the ‘mental card’ for their own benefit and without due cause. This of course had been well known to occur in the area of criminal law.

Perhaps another problem in relation to the validity of psychiatric injury claims in the Irish courts has been that of quantification. Admittedly, when a plaintiff sues for mental stress alone it can be very difficult for a court to decide what the appropriate award ought to be if there are no obvious physical injuries to accompany it. Even if there were physical injury or some description, it would still be rather difficult to determine what weight, in terms of additional damages, the psychiatric injury should add. As a result, many genuine claims up to recent years in both Irish and English courts have been dismissed without appropriate award or rectification. The effect of the 2005 Act (following similar legislative developments in the UK) was to finally make it clear that health and mental health are not separate entities in the eyes of the law. The 2005 Act also makes it clear that, aside from the employer shouldering a burden of duty, each employee also has a duty to act with ‘due care’ for their employers and fellow workers.

Any inference of psychiatric damage naturally begs the question of what is legally recognisable under this heading. In some cases this may be very obvious in so far as nobody would question whether ‘shell shock’ or attempted suicide constitutes legally recognisable damage, yet other cases of psychiatric damage may not be as definitive. Mental stress related to grief, anxiety, internalised anger and things to that effect are very difficult for the courts to quantify as they may have no physical manifestations. In the workplace, an employee may easily claim for damages when a physical injury occurs but it has been traditionally much more difficult to claim for the mental stress which followed the injury/damage, and indeed even more difficult still to claim for damages where the mental stress has occurred without physical injury, as is typically the case where workplace stress, harassment and bullying are concerned.

This is where the difference between normal mental stress must be distinguished from mental stress of a more lasting and harmful type which would constitute psychiatric/psychological damage. When one loses a loved one or something to that effect there is natural immediate mental distress as a result. Usually, damages would not be awarded for this alone as it tends to wane over time with the proper support. However, other sources of stress such as workplace stress or constant bullying can be longer lasting and it can also lead to recognisable psychiatric harm such as depression. The courts acceptance of this concept has been a gradual process which began initially with accepting as valid, certain claims of ‘nervous shock’. This led to the courts putting an emphasis on the fact that the psychiatric damage being complained of must be legally recognisable.

The Case Law and Gradual Progression:
In Kelly v Hennessy, Hamilton CJ, using Justice Denham’s decision in Mulally v Bus Eireann, identified the following specific criteria which should be met by the plaintiff if an action claiming nervous shock/mental stress is to be successful:

1.He or she must have suffered from nervous shock in the sense of any recognisable psychiatric illness.
2.The recognisable psychiatric illness from which he or she is suffering must be shock induced.
3.The nervous shock must be caused by the defendants act or omission.
4.The nervous shock must have been suffered by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff.

The defendant must have owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock. It is not enough to show that there was a reasonably foreseeable risk of personal injury generally.

The requirements outlined by Hamilton CJ seem to solely consider nervous shock, an outdated term for post traumatic stress disorder only, and as such, it acts as somewhat of a barrier to mental stress claims in which no actual physical injury has been identified, threatened or expected. A simple modification of the requirements laid out by Hamilton CJ, such as the removal of the physical injury criterion, and the emphasis on nervous shock as opposed to mental stress, could make the requirements very appropriate to workplace situations in which an employee has suffered either direct bullying/harassment or stress related to certain tasks carried out in the course of his or her employment. McMahon and Binchy suggest that as long as the general criteria for establishing a duty of care, such as proximity and foreseeability, are present in any given case, an employee should by all means be fully entitled to claim damages for mental stress/psychiatric injury alone without the need to show or prove a physical aspect to the claim.

In Curran v Cadbury (Ireland) Ltd, the plaintiff was employed as a factory assembly line operative. A machine which moved goods to the packing station was shut off without due warning from supervisor/management. The plaintiff restarted the machine on her own initiative, as was common practice in the factory. A fitter was working inside the machine and she was completely unaware of this. When she heard the screams from inside the machine she was convinced that she had personally caused serious injury or even the death of the person inside. She later sued for psychiatric injury as a result of her traumatic experience.

McMahon J used the five principles laid down in the Supreme Court in Kelly v Hennessy, which allowed the plaintiff to recover damages. McMahon J stated the following in respect of an employer’s duty to his or her employees:

“The duty of an employer towards his employee is not confined to protecting the employee from physical injury only; it also extends to protecting the employee from non-physical injury such as psychiatric illness or the mental illness that might result from such negligence….”

It is notable for the Irish courts that McMahon J refused to follow the House of Lords ruling in the case of White v The Chief Constable of South Yorkshire. That contentious ruling held that, due to public policy considerations, the duty of an employer should not extend into the area of psychiatric injury.

In Maher v Jabil Global Services Ltd, the plaintiff suffered from stress in the workplace, which his doctor initially thought to be a heart condition, as a result of what he called excessive pressure from management to meet production targets. Clarke J considered the following three important factors for establishing liability in such a case: damage, causation and foreseeability. Medical testimony established that there was damage. It was also accepted that the damage was caused by pressure/stress in the workplace, but the learned judge could not agree that the damage to the plaintiff was foreseeable and so he decided in favour of the defendants. Although it is commonly assumed by merit of the eggshell skull rule that you ‘take your victim as you find them’, it is a matter of policy not to hold an employer liable for having duly promoted an individual to a higher position as a reward for good workmanship only to discover later that they are being sued because that particular worker was of an unusually sensitive disposition. Foreseeability can be said to appropriately bridge the gap between the policy concerns, the employers duty of care, and the victim’s right to recover for damage suffered. These important principles/criteria are easily carried over to deal with other claims where the psychological damage suffered is not the result of actual employment activities, but rather the result of unfavourable interaction with one’s colleagues or employer.

Research on Employee Mental Stress and Bullying:
As a consequence of the changing attitude towards mental health, the courts of Ireland have seen an increasing amount of litigation in relation to mental stress and bullying at work. Many studies have also been undertaken across Ireland, the United Kingdom, and indeed Europe itself to try to understand the scale and scope of such issues in the modern workplace. According to the Economic and Social Research Institute (ESRI), the Irish government began accepting and tackling the issue of bullying with the establishment of The Taskforce on the Prevention of Workplace Bullying and the Expert Advisory Group on Workplace Bullying in 1999 and 2004 respectively. In 2007, the ESRI carried out a survey report which showed that 7.9% of people at work had experienced bullying in the workplace in the six month period leading up to the survey. This, in relation to the total quantum of employees in 2007, amounted to a total of 159,000 individuals who suffered some degree of bullying in the workplace. A large volume of complaints, twenty percent to be precise, to the UK National Workplace Bullying Advice Line come from those in the teaching profession.

Progress In the UK:
One of the best known cases in relation to workplace bullying in the UK is Green v DB Group Services Ltd. This case involved a woman who was diagnosed with a serious depressive disorder as a result of continual bullying and harassment from her colleagues. The employer was sued by the plaintiff as being vicariously liable. The accusation of vicarious liability arose because the employer did not take appropriate measures to prevent her ordeal or safeguard her from it even though previous incidents of bullying had been reported to management. Owen J held that it ought to have been reasonably foreseeable that such a sustained campaign of bullying would cause psychiatric harm to the plaintiff. The Protection from Harassment Act 1997, a UK statute, was an important piece of legislation pre-dating our Health, Safety and Welfare at Work Act 2005. It provided the courts with guidance as to the legal and policy considerations. It was held by Lords Carswell and Hope, only a month prior, in Majrowski and Guys & St Thomas NHS Trust that vicarious liability is not solely confined to common law claims and can apply as a strict no-fault liability to employers for the conduct of their employees.

General Principles Moving Forward:
Upon examination of the cases in relation to workplace bullying, we see that in order for a employee to effectively sue his employer, just like in the workplace stress situation, there must be shown to be; a duty of care, a breach of the standard of care, and resulting recognisable psychiatric damage to the plaintiff. Finally, a causal link must be made between the employee’s injury and the employer’s breach of duty. In a case where the employer is not personally responsible for the bullying, he or she can still be held vicariously liable if it is shown that the employer was aware of the risk of workplace bullying, and also that it was reasonably foreseeable that such conduct would result in psychiatric harm to the plaintiff.

Conclusion:
When it comes to stress claims it should be noted that they are generally made after a lengthy period of time where the plaintiff has tried other options of dealing with the problems which they face. This can include anything from telling oneself to ‘toughen up’ in the hope it will abate in the fullness of time to filing complaints to the relevant authorities at the place of work. Since Lord Wensleydale’s judgement was pronounced some 150 years ago, much has changed in relation to how society and medicine understands mental stress and psychological damage in general. A court in the modern day could not easily dismiss workplace stress or bullying as being trivial while quietly urging the unfortunate plaintiff to ‘man up’. For the Irish legal system it has been a gradual yet important step, and thus far, no litigation floodgates have been opened which could discourage the acceptance in our courts of psychiatric injury as a valid claim. As long as the basic principles in relation to duty of care, causation, and foreseeability are applied, as in any standard negligence case, one can only view this as a positive legal step in the right direction.