Legal Liability For Stress Based Injury

In this essay I will discuss the area of stress based psychiatric injury suffered by employees and how due to recent developments in the law employers now have legal liability ensure it does not happen or at least that they can show they have put measures in place to help prevent it from occurring. There are two sources of law on health and safety. They are common law and legislation. Common law or otherwise known as judge made law is a precedent from past cases. Legislation or acts are drafted by TD’s and signed off by the seanad and finally the president. I will now discuss legislation surrounding safety at the workplace and then I will discuss past cases and the outcomes of those cases.

2.0 Legislation surrounding workplace safety

The main legislation in the area of workplace safety is the Health and Welfare at Work Act of 2005. This act is an up to date version of the Safety Health and Welfare act of 1989. The purpose of the act is to minimise the number of workplace accidents or illnesses by outlining duties that both employers and employees must adhere to. There are fines in place to ensure co-operation with the duties.

In accordance with section 8 of the act the employer has a duty to ensure the employees safety health and welfare while they are at work as far as is reasonably practicable. The 2005 act defines ‘reasonably practicable’ for the first time as having occurred when the employer has shown all due care by putting in place all the necessary measures, by identifying hazards and assessing all the risks to safety and health which are likely to occur at the workplace (citizensinformation.ie).The phrase used in the act is “managing of employees" of work activities. This means employers must act as supervisors, which means continuous monitoring, and if necessary disciplining of employees. If the business involves plant or machinery for example the construction industry, the employer must follow section 6 of the act which deals directly with it. There are eight parts in total that the employer must follow. They are 1) a safe system of work, 2) maintenance of proper welfare facilities, 3) Instruction, training and supervision to employees in regard to health and safety, 4) Drafting and implementation of safety, health and welfare at work measures in order to protect the safety, health and welfare of employees, 5) Personal protective clothing and equipment for employees, 6) Drafting and implementation of appropriate emergency plans and procedures, 7), Reporting of accidents and dangerous occurrences to the Health and Safety Authority, and 8) Engagement of services of a “competent person" for the purpose of ensuring the general health and safety of all employees at the workplace. The Health and Welfare at Work Act 2005 defines what a competent person is. It is someone who has the necessary skill, training, experience, and knowledge appropriate to the nature of the work which they have to undertake. (Class notes, 2010)

Employees also have duties to adhere to that have been introduced in the 2005 act. Section 13 outlines the general duties on the employee. They are 1) To take reasonable care to protect the health and safety of themselves and of other people in the workplace, 2) Not to behave in a way that would endanger themselves or anyone else, 3) They must not be under the influence of alcohol or drugs while working, 4) They must take part in any form of medical assessment if requested by their employer to do so, and 5) They must report any defects in their workplace or equipment which may endanger themselves or another person. These are the main duties that an employee has under the 2005 health and safety act.

Above is the law surrounding health and safety at work that is in legislation. I will now discuss past cases in the area of stress at work and relate them back to legislation as I proceed through each case.

3.0 Common law surrounding health and safety at work

There have been many cases surrounding health and safety at work. In some cases the employee will receive compensation for their injury, this is known as retrospective approach. In other cases a claim will be made in negligence for breach of the employer’s duties of care where the risk was not reasonably foreseeable. The employer’s duty of care changes with the circumstances regarding the worker. For example McKeever - v – Dundalk linen Co. 1966 – the employee who was only fifteen years of age was told to remove rust from a machine. They were not told the risks that came with cleaning rust. The employee took the case to the High court and the Court said that the employee was 25% contributory negligent, but on appeal to the Supreme Court they found the employee not contributory negligent. The Supreme Court held that yes an adult would be aware of the risks of rust but a fifteen year old may not.

There are four duties of the employer which are implied into a contract of employment. They are 1) A duty to provide safe and competent staff, 2) Duty to provide a safe and proper place of work, 3) Duty to provide safe and proper equipment, and 4) Duty to provide a safe system of work.

The employer may be held responsible for the negligent acts committed by there employees. For example Johnson & Johnson Ire - v – CP Security 1986. The security company employee who was protecting the Johnson & Johnson premises was involved in the setting up of robberies over a period of time. The High Court held that the security company was vicariously liable for its employee’s actions.

4.0 Prominent cases in the area of stress based psychiatric injury at work

One of the most recent cases that involved stress related injury at work was Sutherland - v – Hatton 2002 which took place in England. The judge in the case was Lady Justice Hale. She said that liability in negligence depended on three connected requirements. 1) The existence of a duty to take care, 2) A failure to take the care which would reasonably be expected in the circumstances, and 3) Damage to the employee resulting from failure of the employers duty. Lady Justice Hall outlines 16 “practical propositions" regarding stress related injury at work and what employers should do to prevent it. I will now briefly discuss the 16 propositions.

The first is was there control mechanisms in place to ensure employees don’t get stress. The second is was the harm “reasonably foreseeable". The third is did the employer know of a problem or vulnerability regarding the employee. The fourth proposition is that the test is the same for every employment because no employment should cause mental illness. The fifth relates to the demands the company has on the employee if they are realistic and are similar to other employees doing the same job. The sixth one is that the employer doesn’t have to make any further medical enquires if the employee has told him/her their medical history. The seventh is that if an employee is stressed it must be clear to the employer e.g. if the employee is hiding his stress how can the employer be expected to take action. The eight is that the employer is only in breach of his duty if failed to take steps that are reasonable in the circumstances. The ninth is the size of the organisation, e.g. if it is a large company they may be able to rotate a particularly stressful task around employees but if it is a small organisation they may not have the resources to rotate the task. The tenth is that the employer can only be expected to take steps which help the business. The eleventh is if the employer offers a confidential counselling service they are most likely not in breach of their duty’s. The twelfth is if the only reasonable step is to dismiss or demote the employee and let another willing to do the job that is allowed. The thirteenth is that in all cases the court must find steps the employer could and should have taken to prevent the employee from becoming stress full. The fourteenth proposition is that the claimant must prove that the breach of duty by the employer was the cause of the stress. The fifteenth is the employer must only compensate for the damage which they were responsible for. The sixteenth and final proposition is that the court look at the medical history of the claimant and see if they may have became stressed no matter what there job.

These propositions have not been fully accepted. In the case between Barber - v – Somerset County council 2004, the Court of Appeal in England appealed to the House of Lords. When the appeal took place Lord Walker of Gestingthorpe refused to approve Lady Justice Hale’s 16 propositions mainly because of both the sixth and seventh points. He said that the employer not having to make further enquiries into their employees mental health showed too much favour towards the employer. Although he did say that the 16 points where useful as guidelines on stress based injury at work. I will now discuss the Irish case of Mc Grath - v – Trintech technologies (bailii.org).

According to (algoodbody.ie) there has been three cases in Ireland that have given rise to the possibility that stress based psychiatric injury can occur in the workplace. These cases are Mc Grath v Trintech, Matt Quigley v Complex Tooling & Moulding and Michael Maher v Jabil Global Services. To successfully claim psychiatric injury caused because of occupational stress the key question is foreseeability. The employer is usually entitled to think that the employee can handle the normal pressures and stress that the particular job brings unless he has been made aware of some weakness in the employee’s frame of mind.

In the Mc Grath v Trintech case the plaintiff a former employee of the company claimed for psychological injuries suffered while working for the company. The plaintiff claimed the reason for the psychological injuries was due to work related stress while he was on a placement in Uruguay. The plaintiff had a long medical history but was cleared by a doctor prior to his placement in Uruguay. After three months in Uruguay he came back to Ireland for a two week holiday, when he returned to Uruguay he said he felt isolated and stressed. The plaintiff became ill while in Uruguay and on his return to Ireland he went to a consultant who diagnosed him with ADHD and mood disorder. After this the company made his position redundant. He sued for psychiatric injury but the Judge Justice Laffoy applied the 16 propositions from the Hatton case and concluded that the company could not have reasonably foreseen that the plaintiff was under great stress. The main point is not whether the employee suffered work related stress but did the employer have structures in place to help prevent it. In this particular case the Judge found that yes the employee had suffered stress but the employer was not at fault as it was not reasonably foreseeable.

One of the first Irish cases in the area of stress based psychiatric injury was Petch v Customs & Excise 1993. Mr Petch who worked as an assistant secretary claimed stress at work caused him to have a nervous breakdown in 1974. He returned in 1975 but again fell ill in 1983 and had to resign in 1986 because of his health. The Court accepted the work was the reason for the breakdown but said that the senior management had not acted negligently. Prior to the breakdown the plaintiff was eager for even a greater workload.

A case that centres on the issue of foreseeability was Gillespie v Commonwealth of Australia 1991. Mr Gillespie was deployed to Caracas, Venezuela to a diplomatic mission. Caracas at the time was very hostile and violent. Mr Gillespie had a breakdown in health resulting from work based stress while in Venezuela and returned home the following year. He claimed the company should have warned him of the type of environment that was in Caracas and the difficulties that he would encounter. His health continued to suffer and he retired on medical grounds in 1986. The Court held that it was not reasonably foreseeable that the plaintiff would suffer psychological injury as a result of the stress of the job. If the 16 propositions from the Hatton case were applied to this one I think the outcome would not have been as straight forward. It doesn’t mention any sort of counselling available which is one of the propositions. Another argument would be is the company in this case the Commonwealth of Australia not large enough to have a rotational policy in place. For example if two employee’s maybe spent two weeks at a time in Venezuela this would have almost certainly eliminated the risk of stress based psychiatric injury occurring.

A case which based its decision on the above case was Walker v Northumberland Co. Co. 1995. The plaintiff was a social officer who worked in the stressful area of child abuse. The plaintiff suffered a nervous breakdown resulting from the work. He was forced to retire because of it. The Court acknowledged that physical injury was equal to psychological injury at work. This case refers to the Gillespie one on the issue of foreseeability. The Court held that the company could not have reasonably foreseen the stress that the employee would have been subjected to.

5.0 Conclusion

From my extensive case law research I have came to the conclusion that every case has to be examined as no two cases circumstances are the same. The issue of reasonably foreseeable plays a critical role in the outcome of a case and this also is the first proposition from Lady Justice Hale.