PI Brief Update

Stress at Work: a Matter of History - Mark Fowles, Browne Jacobson LLP

01/08/15. Over 10 years ago now the Court of Appeal gathered four cases to be heard together with the express intention of providing guidance as to the handling of stress at work cases claims. The fact that they recognised the need was important. It amounted to an acceptance that there was something special about this sort of claim that distinguished it from the ordinary run of employer liability claims.

Ten years on despite many initiatives and improved workplace practices, stress at work continues to be a significant problem. In UNISON’s 2014 survey stress was the number one cause of concern in the workplace amongst safety representatives.

In those cases, ten years ago – now known as Hatton v Sutherland, the Court of Appeal was struck by the particular difficulties involved in judging and assessing such claims. All personal injury claims have a social aspect and involve judicial value judgements as to what is and what is not acceptable. All psychiatric claims involve investigations of more or less complex issues of causation. Stress at work as the Court of Appeal acknowledged has those elements to a very high degree.

The Court of Appeal accepted the distinctions inherent in the nature of psychiatric injury and the fact that of their nature stress at work claims did not deal with a relatively simple (albeit tragic and life changing) single traumatic event but rather from an accumulative pressure and unhappiness. The setting was important too. The employer’s knowledge of the employee was limited to what he saw of him in the place of work. He could not be expected to know about the employee’s life outside work. Many other people closer to the employer would have far more information. Not only might he not know, but he might be facing a situation where the employee would wish to conceal the true state of affairs in order that he was not thought unable to cope. Moreover whilst the employer could exercise some control over the employee at work the environment in which he worked he was not in charge of the way in which the employee carried out the work, or prioritised tasks, or balance of demands of work and life outside the work place. Moreover whilst the employer had a responsibility for minimising physical risks within the work place, the responsibility and respect of psychiatric risks was a shared one to the employer and employee, family and friends.

This firm foundation led to important principles. First in respect of liability, the threshold test laid down a high hurdle for claimants to climb. “In view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it”.

Secondly in terms of causation, the Court of Appeal recognised that there might well be several different possible causes operating on the employee who became ill. Some would be to do with work. Some would be to do with private life. Some would be to do with the personality of the employee and his past. Some would be to do with a lower than usual ability to cope.

How high a hurdle causation is we have seen in recent High Court decisions such as Bailey v Devon Partnership NHS Trust (2014QPD Exeter District Registry). Bailey is particularly interesting in that the Defendant was found in breach of its duty to risk assess (in accordance with its own policy) in respect of the Claimant’s two breakdowns. However the Judge concluded that, having regard to the Claimant’s character, her reticence in talking about her problems to her employer in the past, that the assessment would have told the Defendant nothing that would have enabled it to avoid what was an inevitable breakdown in health. Such “inevitable breakdown” cases are less challenging than those that involve more complicated causation issues.

How is the court to deal with a situation in which an employee was undoubtedly stressed and made ill by conditions of work but where that condition is part of a much larger pattern of a generally stressful or difficult life? We are of course in the realms of material contribution, divisibility and indivisibility of illness – issues which have bedevilled personal injury lawyers for decades and seem likely to continue to bedevil them. As is well known in the case of injuries resulting from more than one cause or more than one tortfeasor between divisible injuries in which damages are apportioned on the basis that the tortfeasor only pays for that amount of damage he has actually caused and indivisible injuries where the tortfeasor (or each tortfeasor) is liable for all the damage caused. Lady Justice Hale cut the Gordian Knot by stating plainly that where there was a “constellation of symptoms” all stemming from a number of different causes then “a sensible attempt should be made to apportion liability accordingly”. In addition (and possibly pre-empting criticism) she added that where the illness or disorder had been exacerbated or accelerated then the award should reflect only the exacerbation or the acceleration). Many psychiatrists take the view that psychiatric injury is, in legal terms, indivisible – indeed in Barker v O2 a different Court of Appeal, although Obiter, took the same view. (Subsequently in Browne v Kingston yet another Court of Appeal irritatingly refused to comment at all) so we have something of an impasse. What is worth considering is whether indivisibility proponents should tread carefully in the context of the law.

There is a good deal of literature available as to whether psychiatric claims fit at all into a legal framework – or whether they should. Deidre M Smith in ‘The Disordered and Discredited Plaintiff: psychiatric evidence in civil litigation notes’ that “psychiatry does not provide a stable, uncontroversial conception of causation that can be imported easily into the legal realm”. She goes on to note the scepticism of many psychiatric commentators. Jay Ziskin in “Coping with psychiatric and psychological testimony” notes that “forensic psychiatrist is a field that is long on controversy and short on data”, and Eric H Marcus in ‘Causation and Psychiatry – Realities and Speculations’ comments that “cause and effect relationships in psychiatry are more a product of speculation than scientific accuracy”. The problem goes deep and deeper still with the criticisms that have been made of DSM5. The difficulty with these views from a medico legal point is of course they undermine the whole area of study in a legal context.

All of which leads us to the interesting question of whether psychiatric claims should be justiciable at all? Unless the question as to whether an enormous social good might be achieved by substantially limiting psychiatric claims. Until then litigators should begin to recognise the wisdom of Lady Justice Hale’s pragmatic approach.

In the meanwhile what should lawyers defending such claims do? Whether looking at issues of liability, or apportionment, or acceleration ,it is essential to look at the history. Psychiatrists agree that for any assessment whether medical, legal or otherwise it is important to take a holistic approach gaining as much information about the subject as is possible. Checklist approaches and approaches that rely solely on the claimant’s own self reporting are untrustworthy.

It is essential that psychiatrists are provided with the material they need to form a holistic view of the claimant – occupational health records, general practitioner notes and other medical records, counselling notes, relevant statements from colleagues and others and personnel files. The perusal of records whether by lawyer or psychiatrist is a time consuming job. The spectre of proportionality can hover. However for as long as the law believes that this is a fit area for enquiry the task cannot be avoided.

Mark Fowles
Browne Jacobson LLP

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