Personal Injuries Proceedings

There has been a growth in the last number of years of employees bringing claims under the tort of negligence (via personal injuries) for bullying at work. The common law duty of an employer to provide a safe place & system of work is not limited to avoiding physical injuries to employees but will also extend to any reasonably foreseeable injury suffered by an employee which includes psychiatric injury.

Clarke J. in Maher v. Jabil Global Services Limited [2008] I IR 25 set out the following three part test in order to establish liability for psychiatric injury at work (either from stress or bullying):

(a) Has the Plaintiff suffered an injury to his or her health as opposed to what might be described as ordinary occupational stress. (recognisable psychiatric injury)

(b) If so, is that injury attributable to the workplace, and

(c) If so, was the harm suffered to the particular employee concerned reasonably foreseeable in all the circumstances.

 In this case the plaintiff on returning to work after stress related leave was given a ‘non-job’ and then suffered a second relapse he argued due to the psychological impact the demotion had and sued his employer for that relapse. The High Court dismissed his claim on the grounds of foreseeability.  Clarke J referred to the fact that there was insufficient evidence to infer that the defendant was trying to exclude the plaintiff from his original position.

Although not at issue in this case, the High Court also noted that the fact that an employer offering a confidential advice service, with referral to counselling or treatment services, was unlikely to be found in breach of a duty of care but was subject to the caveat that a Court had to be satisfied that the provision of such a service was a matter of substance and was not being used to hide the fact that an employer was intent on removing an employee.

In one of the first cases, McGrath v. Trintech Technologies Limited the High Court considered whether or not to grant damages for injuries sustained from bullying in the workplace. The defendants were involved in the information technology sector and operated on a worldwide basis. The plaintiff’s contract of employment contained an express provision that his employment could be terminated on one months notice. During his employment with the first defendant, the plaintiff suffered bouts of ill-health of a physical nature. While on sick leave he was asked by the first defendant to go on an assignment to Uruguay. The plaintiff claimed that when he took up the assignment in Uruguay the terms of his contract of employment were varied, in that he was guaranteed that the defendant would retain him in employment for a period of one year following his return. During the period of his assignment the plaintiff alleged that he was subjected to grave work related stress and pressure which resulted in injury to his psychological health and well being. On his return from Uruguay in June, 2003 the plaintiff was absent from work on certified sick leave. In August 2003 he was informed by the first defendant that he was being made redundant.

Laffoy J. was prepared to hold that, despite inconsistencies in the opinions and diagnosis of the medical experts, that the plaintiff had established that he had suffered a “recognisable psychiatric illness”, adopting the concept from the case law on nervous shock. The use of ‘recognisable’ as opposed to ‘recognised’ is significant as it acknowledges that the views on psychological damage can develop and change over time.

Furthermore in this case Laffoy J. endorsed the approach of the English Court of Appeal in Hatton v. Sutherland (2002) EWCA Civ 76 (2002) PIQR P241 which involved four employers appealing against the findings of liability for four employees who had psychiatric illnesses caused by stress at work. The Court of Appeal allowed the employer’s appeals in three of the cases, Hatton, Barber and Bishop, in a composite judgment. What is key about this English case is that the Court of Appeal laid down 16 practical propositions to provide guidance as to the principles applied in occupational stress claims which were then endorsed by the House of Lords. (For the full list please see: The 16 Propositions – Hatton v Sutherland)

What should be noted about the McGrath case is that ultimately the plaintiff was unsuccessful because he could not meet the third requirement as set out in Maher – foreseeability. The Hatton v. Sutherland case also provided a foreseeability requirement:
“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. 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.”

The Court found no evidence to suggest the defendant knew or ought to have known the plaintiff’s bouts of ill-health were the result of stress at work. This third requirement has proven to be quite a stumbling block for plaintiffs and is dealt with further below.

The Supreme Court in Quigley v. Complex Tooling confirmed the type of medical evidence required to ground any such claim for personal injury:- “Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.”

In the Sweeney case discussed above in relation to the Health, Safety and Welfare at Work Act 2005, the plaintiff was a teacher who claimed that she had suffered clinical depression and post-traumatic stress disorder as a result of the failure of her employer to deal with bullying and harassment she had been subjected to by the principal of the school, including being followed by private investigators at the behest of the principal. The High Court allowed her claim for clinical depression but did not accept the evidence of her psychiatrist that she had also suffered from post-traumatic stress disorder. Herbert J. pointed out that there were no studies put forward in favour of the contention of the plaintiff that the feeling of helplessness in the face of a perceived threat to one’s career from an accumulation of events over a period of nineteen months (as versus the more traditional single threat to a person’s physical health) would be a sufficient trauma to give rise to post traumatic stress disorder.

The decision of Clark J in Larkin v. Dublin City Council [2008] 1 IR 391 illustrates what the Courts will not consider to constitute an actionable psychiatric injury or condition. Here the plaintiff was a fireman who entered a competition for the position of sub-officer. He was notified by phone that he had been successful and then was officially notified by letter of his successful result. Subsequently he was told that a mistake had been made in the calculation of the points and that a recalculation and correction of the error now meant that he was not properly included amongst the successful candidates. The plaintiff felt humiliated and shocked and remained out of work on full pay for a period of six months, claiming he had to stay away from the embarrassment of meeting with his colleagues. His GP diagnosed an acute stress reaction. However he was not referred to any specialist and nor was any medication prescribed. The High Court dismissed his claim for damages despite finding that the defendant had breached their duty to the plaintiff, they held that ultimately the plaintiff had not established that he had suffered from any recognisable psychiatric illness and thus was excluded from the recovery of damages for public policy reasons.

Thus the position from Larkin seems to be that if no psychiatric condition/illness is suffered in these types of claims, even if there is a breach of duty of care to an employee, damages will not be awarded.

A number of recent decisions of Cross J. on bullying in the workplace have thrown some confusion on the position however, relying less on the fact of a psychiatric condition/illness and more on the particular facts of the case and the plaintiff themselves. They are outlined below:

(i) Kelly v. Bon Secours [2012] IEHC 21
In this case Cross J. concluded that the acute plaintiff’s depressive symptoms were not related to the bullying but that what he referred to as “the other symptoms” were. This case dealt with what Cross J. termed as “corporate bullying”, where the plaintiff claimed that the bullying she had been subjected to was in fact orchestrated by management. Here the issue of foreseeability (the normal stumbling block) was not at issue as the plaintiff had brought numerous grievances to the attention of the management. Here the issues analysed by the Court included an accident in the workplace, an irregular hiring process, complaints that the plaintiff was herself bullying other colleagues which meant an investigation was opened by management and the subsequent process of this investigation and the ultimate removal of the plaintiff from the premises (itself an assault) came under criticism by the Court. Although Cross J. did not find that every incident complained of by the plaintiff did actually amount to bullying and harassment, he still awarded general damages of €60,000 for “the severe distress and insult she has suffered” to date and into the future. However, the medical evidence given was that the plaintiff’s symptoms of acute depression did not relate to the bullying but her “other symptoms” did. To that extent, the decision of Cross J. could be seen as a move away from the traditional jurisprudence of damages for actionable psychological injury i.e. that evidence of stress is not sufficient and damages will only be awarded for a recognisable psychiatric injury.

(ii) Browne v. Minister for Justice Law Reform & Equality and the Commissioner of Garda Siochana 2012 IEHC 526
In this case Cross J. made a similar award (general damages of €55,000) for suffering to date and into the future where the plaintiff was found by the Court to have “suffered a significant stress reaction”. Here the plaintiff claimed that he was subjected to a campaign of bullying and harassment by his superiors and that there was a failure to take any proper steps to investigate his complaints. The Court examined the plaintiff’s claims under twelve different headings and again not every complaint/incident was found to amount to bullying.

The plaintiff’s GP diagnosed a reactive depression of moderate to severe in nature which had been ongoing for some 12 years. His psychiatrist diagnosed an adjustment disorder of moderate severity and depression of a reactive type with ongoing psychological consequences. It does not seem from the judgment that any medication was prescribed for depression or any other medical condition. The Court found that the plaintiff suffered a significant though moderate psychiatric injury. Whilst he had only had two weeks certified sick leave, the Court found that his reactive depression, though only moderate, was an ongoing continuous matter for approximately ten years until his retirement and that his personality had dramatically changed.

The facts of these types of cases are lengthy and both these particular cases involved facts which amounted to “corporate bullying” where management either knew of the ongoing issues and failed in their duty to their employee or were a part of the bullying themselves. It would seem that these two decisions indicate a move away from the medicalised approach to the test for a recognisable psychiatric injury as opposed to occupational stress. However, in the absence of a Supreme Court decision subsequent to these decisions it must be stressed that the accepted legal test is still a “recognisable psychiatric illness” and that this must be caused by the injury received in the workplace.

This is the third requirement as set out in Maher and further the Hatton v. Sutherland case also provided a foreseeability requirement:

“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. 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.”

This part of the test is usually a stumbling block for plaintiffs and it is a key requirement for success in these types of claims.

In Berber v. Dunnes Stores, Finnegan J. in the Supreme Court summarised the law on foreseeability in stress at work cases:-

“As to foreseeability, the issue in most cases will be whether the employer should have taken positive steps to safeguard the employee from harm and the threshold to question is whether the kind of harm sustained to the particular employee was reasonably foreseeable. The test is not concerned with the person of ordinary fortitude. The answer may be found in asking the question whether the employer knew or ought to have known of a particular vulnerability. Stress is merely a mechanism whereby harm may be caused and it is necessary to distinguish between signs of stress and signs of impending harm to health. Frequent or prolonged absences from work which are uncharacteristic for the person concerned may make harm to health foreseeable: there must be good reason to think that the underlying cause is stress generated by the work situation rather than other factors. Where an employee is certified as fit for work by his medical adviser the employer will usually be entitled to take that at face value unless there is a good reason for him to think to the contrary.”

As noted in the previous section in McGrath v. Trintech Technologies Ltd the plaintiff was ultimately unsuccessful in his claim due to this limb of the test. The Court found that the defendant had adequately addressed any signs of vulnerability on the part of the plaintiff or possible harm to his health. She refused to impute to the defendant a knowledge of a vulnerability of which the plaintiff was aware in circumstances where the plaintiff’s psychological history and the related likelihood of psychological harm was not ascertained prior to the conduct complained of. She expressly found that there was no basis upon which the employer could not assume the plaintiff could withstand the “corporate culture” within its organisation.

The plaintiff in Maher v. Jabil also failed to establish foreseeability on the part of the employer. The plaintiff had claimed damages for stress arising from one period of alleged over work and one period of alleged under work. Clarke J was satisfied from the medical evidence that the plaintiff had suffered actionable injuries caused by his work environment. However, he noted that although the plaintiff had made complaints about his conditions of employment, these were not as frequent as the plaintiff claimed or so numerous as to make the defendant aware it could lead to psychological harm.

In Frank Shortt v Royal Liver Assurance Limited [2009] 20 ELR 240 the plaintiff sought damages for personal injuries, which he claimed he had suffered as a result of an unlawful application of the disciplinary process. Here the Court found that disciplinary action will almost inevitably be accompanied by a certain degree of stress but that they are events encountered in the normal course of management. In the absence of any reason to the contrary an employer is entitled to assume that an employee is entitled to withstand such stress. In those circumstances she found that any injuries sustained by the Plaintiff were not reasonably foreseeable.

In the Sweeney case the plaintiff had a history over the previous three years of absence from work due to work related stress which was found to have constituted “long and totally uncharacteristic absences from work”. The Court found that the principal knew (or ought to have known) that this “rendered the plaintiff very vulnerable to some form of mental illness such as nervous breakdown”. Thus the threshold of foreseeability had been met.

In the Kelly case Cross J had regard to historic industrial relations difficulties that existed in the particular department before the plaintiff joined which he expressly found “gave [the defendant] an obligation to be particularly stringent in relation to any further bullying”. Cross J. stated that the plaintiff’s own personal history with a previous employer meant that the defendant was or ought to have been aware of the fact that she “was clearly a person subject to stress…from a very early stage”. Cross J. found that the defendant must therefore be prima facia liable for the bullying and harassment. However, this case did not turn on the issue of foreseeability as it was what the Court termed a corporate bullying case and so Cross. J’s comments do not provide a proper precedent in regards to this limb of the test.

 

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