Pictured: Psychiatric Injury - Source: NesbitLaw
The Liability of Employers under Psychiatric Injury within Negligence.
Employers’ liability claims are based on similar principles to those for negligence, a concept first outlined in Donoughue v Stevenson.[1]Such claims were only limited to physical injury. However cases such as Dulieu v White[2] and a better understanding of occupational stress, employers’ liability has since extended through common-law to include psychiatric injury.[3] For claims of physical injury, there is a non-delegable duty of care on employers to provide a safe system of work and to not expose employees to any reasonably foreseeable risk that can be guarded against (when cost of running the risk is greater than avoiding it). This principle was applied and subsequently developed in cases of psychiatric injury.[4]
Walker v Northumbria County Council[5] was the first successful claim under psychiatric injury caused by work-related stress. In Walker, the plaintiff suffered a second nervous breakdown due to occupational stress after informing his employer of his condition. The employer did not reduce the plaintiff’s workload as was agreed, resulting in the second breakdown.[6] The Court of Appeal ruled the legal issues to be: whether the injury to the claimant was reasonably foreseeable and whether the duty of care to provide a safe system of work should extend to include psychiatric injury. The court ruled in the plaintiff’s favour and held that the employer’s duty of care includes psychiatric harm and this duty was breached after the plaintiff returned to work and had a second reasonably foreseeable nervous breakdown.[7]
The court’s approach in Walker was to apply the rules of negligence and expand them to include psychiatric injury. Coleman LJ believed if the risk of psychiatric injury is foreseeable to the employer, who does not take positive steps to prevent further harm occurring, this would result in a breach of a duty of care, incurring liability.[8] This approach was too firmly based on negligence, as it suggests that were it reasonably foreseeable, an employee would develop a psychiatric illness for doing a type of work, regardless of the employee contractual duties in regard to doing that work, employers would have to re-allocate them other work or provide them with assistance. Otherwise, they were in breach of the duty and would be liable, opening the potential door to claims.[9] Walker didn’t take policy and other issues into consideration, including when and in what circumstances employers’ liability would be appropriate. This could be because the plaintiff in Walker was a case of a second nervous breakdown at work as foreseeablity was assumed, explaining this lack of discussion. Walker arguably opened the ‘flood-gates’ of similar claims, as it made it easier for employees to claim under psychiatric injury, because in order for liability to be incurred, it only needed to be proven the psychiatric harm was reasonably foreseeable.[10] However, as there is an absence of legislation to control work-related stress or the risk to psychiatric injury in the workplace the case protected employee rights, making employers more aware of the stresses of their workers and risks to psychiatric injury.[11]
The principles of Walker were reaffirmed in Hatton v Sutherland[12]. Hatton consisted of four-conjoined appeal cases, where the plaintiffs were claiming psychiatric injury due to occupational stress. The court held in the plaintiffs favour in three of the four cases, providing guidelines for cases of a similar nature. As the cases’ facts related to single nervous breakdowns the legal issues were of understanding what factors constitute reasonable foreseeability and when employer liability is appropriate.[13] Hale LJ ruled employers could assume employees were suitable for the job, unless they were made aware of ‘some particular problem or vulnerability’. [14] This requirement of employers’ awareness was the aspect which made the psychiatric injury reasonably foreseeable. The judgement also opposed Walker’s principle i.e. if reasonable foreseeablility was satisfied, employees could be freed of contractual duties. The judgement also showed a greater leaning towards considering the costs of running the risk of psychiatric injury and avoiding it.[15] Hale LJ believed that even if the psychiatric injury was foreseeable, it should also be considered based on the circumstances, what the employer could and should have done, in deciding whether a breach of duty occurred.[16]
Hatton arguably limited the scope of psychiatric injury making it harder for employees to establish an employer’s breach of duty of care for cases of single breakdowns. This could be due to policy reasons, as the previously opened ‘flood-gates’ in Walker had resulted in more psychiatric injury claims.[17] However, the case was also favourable for employees to an extent, as it suggested that foreseeable risk of psychiatric injury is established if they informed their employer of a ‘particular problem or vulnerability’ which put a duty of care on the employer to assist the employee.[18] Hatton did not however, provide control mechanisms, such as the Alcock test[19], which could result in inconsistencies in the Law, as without these, Hatton’s guidelines could be interpreted as strict, which has occurred in the recent cases of Dickens v 02 plc[20] and Daw v Intel Incorporation[21]. In both cases the defendants argued as they provided counselling services, they could not be in a breach of duty of care, because as ruled by Hale LJ those providing these types of services were ‘unlikely’ to be found in a breach of duty.[22]
Hatton’s guidelines proved to be the authority on cases of psychiatric injury, as shown in Barber v Somerset County Council[23]. Barber was one of the conjoined cases in Hatton where the court ruled in the defendant’s favour, after which the plaintiff appealed to the House of Lords. Barber concerned a plaintiff who had suffered from work-related stress. He had spoken to senior management regarding his condition, after which he became seriously ill and was no longer able to work. The legal issue was whether duty of care required the council to take positive steps to avoid the injury which had been breached. Their Lordships ruled in the plaintiffs favour that a duty of care was owed, which had been breached, and upheld Hale LJ’s guidelines in Hatton, but explained they were not meant to be strict rules.[24] One may argue Barber is of little significance as it only re-iterated Hatton however it showed that the duty of care extends to employers taking positive steps in reducing employee workload[25]
The rulings of Hatton were confirmed in the subsequent Dickens v 02 plc[26] and Daw v Intel Incorporation[27] and Hartman v South Essex NHS Trust[28]. Hartman involved a claimant who disclosed information to the Occupational Health Department regarding a previous mental breakdown, after which had a nervous breakdown, and claimed for psychiatric injury. The legal issue was whether the injury was foreseeable, due to the information that had been submitted. The Court of Appeal upheld Hatton, ruling in the defendants favour, that they couldn’t have been expected to have known of the claimant’s vulnerability. The Court’s approach was to follow Hatton, but still considering each case on its own merits. A possible issue is that it means the extent to which Hatton is followed can vary from case to case, resulting in discrepancies within the law. However, arguably this is the best approach, as it does not limit the courts to use control mechanisms when reaching decisions, thus allowing the common law approach on psychiatric injury to gradually develop.
The common law approach to psychiatric injury has developed since Walker, following the same principles of employer liability for physical damage that a duty of care is owed to provide a safe system of work. However the law on this area is subject to change on a case-by-case basis depending on the legal issues brought forward by future cases.
[1] [1932] AC 562
[2] [1901] 2 KB 669
[3] As per the judgement of Hale LJ in Hatton v Sutherland [2002] All ER para. 4, 7
[4] Hodgson J., Lewthwaite J., Tort Law Textbook, (2nd Edition, 2007) p. 172
[5] [1995] All ER 737
[6] Barret B., Oxford Industrial Law Journal, Vol. 33, No. 4, p.344
[7] Ibid
[8] As per the judgement of Cole LJ in Walker V Northumbria Country Council [1995] All ER 737
[9] McBride N. J., McBride N., Bagshaw R., Tort Law, (3rd Edition, 2008) p.113
[10] Torrington D., Earnshaw J., Tackling under-performance in teachers (1st Edition, 2003) p.41
[11] Allison Spears, Work-Related Stress, Health and Safety Executive, April 2008, p. 12
[12] [2002] All ER
[13] Hodgson J., Lewthwaite J., op. cit. p. 172
[14] As per the judgement of Hale LJ in Hatton v Sutherland [2002] All ER para. 29
[15] McBride N. J., McBride N., Bagshaw R, op. cit. p.113
[16] As per the judgement of Hale LJ in Hatton v Sutherland [2002] All ER para. 33
[17] Torrington D., Earnshaw J., op. cit. p.41
[18] As per the judgement of Hale LJ in Hatton v Sutherland [2002] All ER para. 29
[19] Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
[20] [2008] EWCA Civ. 1144
[21] [2007] EWCA Civ. 70
[22] As per the judgement of Hale LJ in Hatton v Sutherland [2002] All ER proposition (11) at para. 43
[23] [2004] All ER 385
[24] Barret B., Oxford Industrial Law Journal, Vol. 33, No. 4, p.345
[25] Alastair M., Tort, All England Annual Review (2004) para. 28.8
[26] [2008] EWCA Civ. 1144
[27] [2007] EWCA Civ. 70
[28] [2005] EWCA Civ. 06
