Sutherland v Hatton A solution to Irelands Occupational Stress .doc by yan198555


									                            Law and Mental Health Conference

                      Law Faculty NUI Galway November 17th 2007

                        Mental Injury at Work: who is responsible?

                       Ursula Connolly, Law Faculty NUI Galway.

The importance of protection for employees against the effects of mental ill-health
brought about by workplace factors cannot be underestimated. A position where
mental injury does not arise in the workplace is of course the ideal, but as is clear
from a recent report of the National Economic and Social Forum (NESF), which
reports that fewer than 20% of employers have a policy on mental health 1 and 75% of
employers themselves acknowledging that they do not know enough about the law on
mental health2, we may be a long way off from reaching this nirvana. In such a
climate, monetary compensation for negligently inflicted mental injury will act both
as compensation for affected employees, and also as an incentive for employers to
actively take steps to prevent such injury arising in the first instance.
Mental injury at work can take a number of forms, from post-traumatic stress
disorder, to depression, reactive anxiety neurosis, or even in some extreme cases to
suicidal tendencies and the taking of one‟s life. Potential liability for such outcomes is
particularly significant given that a recent report has suggested that up to 20% of
suicides can be attributed to workplace bullying.3
Stress, a major contributor in incidences of work related mental injury is also
reportedly on the increase. The NESF report highlighted figures which point to its
prevalence as one of the most common work-related health problems in the EU
accounting for over 30 per cent of employee absenteeism and costing at least €20
billion in lost times and health bills.4

  National Economic and Social Forum, Report No. 36, 2007 at p4.
  Ibid at p87.
  The Irish Times, August 31st, 2007. The figures given were drawn from a report published by clinical
psychologist Michael Mullally.
  National Economic and Social Forum, Report No. 36, 2007 at p39.

Currently, employers‟ liability arises from the common law principles of negligence
and from legislation which places an obligation on employers to protect the mental
and physical well-being of employees. Despite the potential liability for employers for
mental injury at work it will be argued that the law in this area is far from satisfactory.
A persistent reluctance by the courts to fully embrace the right of recovery for such
mental injury has led in this author‟s view, to an unhealthy onus being placed on
employees to essentially be their own protector when it comes to mental health at
work. It will also be argued that the current forum for dealing with such issues, i.e. the
courts in cases where liability is contested, is unsuitable, given its formal adversarial
format and the particular mental vulnerability of the plaintiffs.

Legal liability

Much has changed in the legal landscape since it was first stated that to allow
employees to recover for mental injury would leave “a wide field opened for
imaginary claims.”5
This fear of opening the floodgates to fictitious claims has now abated. The Irish
courts identify three broad categories of mental injury claims – those of “nervous
shock”, the “worried-well cases” and finally the most typical type of claim, actions
arising from stress in the workplace.6 A brief word will be said on the first two
categories of claim before going on to discuss the law as it applies to stress related
mental injury.
It should be noted at this stage that legislation also imposes an obligation on
employers to protect the mental well being of employees. In particular the General
Applications Regulations place extensive civil obligations on employers to provide a
safe working environment.

    Victorian Railways Commissioners v Coultas13 App.Cass. 222 per Sir Richard Couch.
    McGrath v Trintech Technologies Ltd, High Court, October 29th, 2004 per Laffoy J.

Nervous Shock

Nervous shock cases involve a particular set of circumstances. They require that the
plaintiff suffers from a medically recognized psychiatric illness (the most common
form of illness in cases of this kind is post-traumatic stress disorder) arising from the
apprehension of physical injury either to one self or to another person.7 The
relationship of the “another person” to the plaintiff has not been specified other than
to require that the relationship should be “close”. This type of claim was the basis of
a widely reported action taken by the relatives and rescuers involved in the
Hillsborough disaster in 1989.8 More recently in Ireland an action was brought by a
porter in a hospital who witnessed a number of bodies being brought into the Accident
and Emergency Unit following a serious car accident.9 Among the injured were a
number of close family friends, cousins and a sister. Three of those involved in the
accident were dead on arrival at the hospital, including the porter‟s brother. The porter
assisted with moving the bodies from the ambulances and was also requested to
identify all nine of those involved in the car accident, many of whom were very
seriously injury. The plaintiff in this case suffered psychological trauma as a result
and sought to recover. His case was heard in the High Court where Kearns J found in
his favour. The court however, accepted that restrictions did have to be placed on
recovery in such actions. As stated by Kearns J,

“This court would certainly support the proposition that policy considerations would
dictate that the ambit of recoverability and the category of relationships entitled to
successfully claim damages for nervous shock should be tightly restricted.”

Recovery in this case was based on the foreseeability of such injury arising and the
proximity between the parties. This proximity was both spatial and temporal as
regards the witnessing of the event. The plaintiff also had a close relationship with the
victims, which in applying the “close proximate relationship” test was seen as Kearns
J to be a key factor in allowing him to recover.

  Kelly v Hennessey per Hamilton CJ at p
  See Alcock v Chief Constable of South Yorkshire [1991] 3 W.L.R. 1057 (HL)10 and White v Chief
Constable of the South Yorkshire Police[1999] 2 A.C. 455 (HL)
  Cuddy v Mays High Court, November 28th, 2003.

Worried-well cases

These cases involve a person suffering a mental injury arising from a fear that they
will develop a physical injury at some future point, due to their negligent exposure to
such a risk by their employer. This type of action is best demonstrated in Ireland by
the case of Fletcher v Commissioners for Public Works.10 Fletcher developed a
reactive anxiety neurosis as a result of his fear of contracting an asbestos related
cancer. He had been involved in the removal of asbestos from Government buildings
during the late 80‟s and early 90‟s. Despite full knowledge of the risks on the part of
his employers, who the court accepted had been “grossly negligent”, Fletcher had not
been provided with any protective clothing or equipment. The High Court found
liability on the part of his employer, but this was reversed by the Supreme Court,
largely on the basis of policy. The Supreme Court contended that policy
considerations dictated that plaintiffs should not be entitled to recover for what they
felt were “irrational fears”. There were guided in this finding by the fact that
Fletcher‟s medical advisers were of the view that he had no physical evidence that he
would develop cancer (the absence of any scarring on his lung tissue appears to have
been determinate in this context).
For these types of cases, therefore, courts are mindful of the need to place limitations
on recovery, and will as in the Fletcher case, invoke policy grounds and questions as
to whether the imposition of a duty is “just and reasonable” before finding liability.

Stress-related injury

The first significant decision to deal comprehensively with workplace incidences of
stress related injury was that of Sutherland v Hatton11 an English decision handed
down in 2002.

Prior to the Sutherland decision few cases had dealt comprehensively with the issue.
Recovery for post traumatic stress disorder (PTSD) arising out of a workplace
accident had been allowed, in cases referred to as “nervous shock” cases and

     Fletcher v The Commissioner for Public Works [2002] IESC 8
     [2002] 2 All E.R. 1

discussed above.12 Other cases had incorporated an award of damages for „stress‟,
whereas the focus of the decisions was more generally on bullying13 or on unfair
dismissal.14 The High Court lost an opportunity to decide on the issue, when the case
of Quinn v Servier Laboratories,15 a case not unlike the English case of Walker, was
settled out of Court. It was clear however that employers would not be able to avoid
responsibility for injury merely because it is psychological. The Labour Court for
instance, in Saehan Media Ireland Limited v A Worker16 stated that, “work related
stress is recognised as a health and safety issue and employers have an obligation to
deal with instances of its occurrence which are brought to their attention.” Also, in
Curran v Cadbury Ireland Limited, McMahon J, stated that in Walker, “the English
Courts imposed liability where the plaintiff foreseeably suffered a nervous breakdown
because of unreasonably stressful working conditions imposed on him by his
employer.” In considering the merits of the decision for an Irish Court, he further
stated that, “There is no reason to suspect that our Courts would not follow this line of
authority if it came before the Courts in this jurisdiction.”

The Sutherland decision when it arrived onto the legal landscape, reiterated the
accepted view that an employer could be found liable for mental injury on the basis of
well established negligence principles.17 It went further however, in detailing sixteen
“practical propositions” which could be used to decide whether recovery should be
allowed. The case concerned appeals by four employers against trial court findings
that they had negligently caused their employees to suffer mental injury arising from
occupational stress. Two of the employees concerned were teachers (Mr. Barber and
Mrs. Hatton), one was an administrative assistant (Mrs. Jones) and the fourth was a
manual worker in a factory (Mr. Bishop). All four employees had succeeded in their
initial cases and all four employers appealed, leading to the four appeals being heard

   Curran v Cadbury Ireland Limited [2000] 2 ILRM 343.
   Allen v Independent Newspapers UD641/2000.
   Hyland v Bestfood Services EAT 1999.
   This case opened in the High Court in 1999 and settled during the course of the hearing. Quinn, a
medical representative, suffered a nervous breakdown which he claimed was related to work related
stress. Following his return to work, which saw him being given an even greater workload, he suffered
another breakdown. It is speculated that the case settled for a six figure sum.
   [1999] 10 ELR 41.
   The taking of a case for stress related injury at work requires an employee to prove negligence, i.e.
that an employer owed a duty of care, breached this duty, that the breach caused the injury (as opposed
to some other factors in the employee‟s life) and that the injury was of a type that was foreseeable
(what in law is described as proving that the injury is not too „remote‟).

together. Three of the employees failed before the Court of Appeal, largely due to the
court finding that the mental injury which arose was unforeseeable. 18 In one of the
cases it was held that the injury could not be attributed to work but rather to personal
demands faced by the employee concerned. The guidance given by the court in
Sutherland was affirmed by Laffoy J., in the Irish case of McGrath v Trintech
Technologies Ltd,19 making these principles the defining guidance for Irish courts in
stress related mental injury cases.

The practical propositions outlined by Lord Hale in Sutherland and affirmed by
Laffoy J are as follows. I have placed my own comments where they arise, in italics.

          (1) There are no special control mechanisms applying to claims for psychiatric
             (or physical) illness or injury arising from the stress of doing the work the
             employee is required to do.

          (2) The court must ask whether the injury was foreseeable. Interestingly the
             court does not require that the injury is foreseeable to an employee of
             ordinary fortitude, but rather whether it is foreseeable to the employee
             concerned, taking into account that particular employee‟s capabilities.

          (3) Foreseeability of injury must take into account what the employer knows,
             or ought reasonably to know, about the individual employee. 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

          (4) The court rejected the proposition that there were any jobs that were
             inherently “dangerous to mental health.”
             This finding is questionable. It is trite to say that certain occupations are
             by their very nature stressful and that employers should be more on notice

  One of these, Mr. Barber, subsequently successfully appealed to the House of Lords, see Barber v
Somerset County Council [2004] ICR 457
     High Court, October 29th, 2004

   for any accompanying mental injury. The armed forces, emergency
   medical teams, emergency services and social workers in particular face
   stressors on a daily basis that would exceed those faced by more sedentary
   workers. While that is not to say that all such employees will suffer mental
   ill- health, it appears counter-intuitive the particular challenges which
   accompany certain employments.

(5) Foreseeability also included examining the nature of the work done by the
   employee and whether the employee themselves showed any signs of
   mental ill health (absenteeism, uncharacteristic behaviour and complaints
   being illustrative of factors that might trigger foreseeability).

(6) The court held that an employer is generally entitled to take what he is told
   by his employee at face value, unless he has good reason to think to the
   contrary. He does not generally have to make searching enquiries of the
   employee or seek permission to make further enquiries of his medical
   This appears fair, in fact it could be argued that to find otherwise would
   raise invasion of privacy concerns.

(7) To trigger a duty to take steps, the indications of impending harm to health
   arising from stress at work must be plain enough for any reasonable
   employer to realise that he should do something about it.

(8) The employer is only in breach of duty if he has failed to take the steps
   which are reasonable in the circumstances, bearing in mind the magnitude
   of the risk of harm occurring, the gravity of the harm which may occur, the
   costs and practicability of preventing it, and the justifications for running
   the risk.

(9) The size and scope of the employer's operation, its resources and the
demands it faces are relevant in deciding what is reasonable; these include the

interests of other employees and the need to treat them fairly, for example, in
any redistribution of duties.

(10) An employer can only reasonably be expected to take steps which are
likely to do some good and the court is likely to need expert evidence on this.

(11) An employer who offers a confidential advice service, with referral to
appropriate counseling or treatment services, is unlikely to be found in breach
of duty.
The implication of this proposition is that the offering of a counseling of
treatment service, such as the commonly used Employee Assistance Employee
(EAP), will absolve an employer of liability. However, it is difficult to see how
this proposition can be supported in all cases. If the counseling service can do
nothing to remove the cause of stress in the first instance, where it arises from
overwork or bullying for instance, it ought not absolve an employer who has
done nothing to address these issues.

(12) If the only reasonable and effective step would have been to dismiss or
demote the employee, the employer will not be in breach of duty in allowing a
willing employee to continue in the job.
As for dismissal, the Court refused to place such a responsibility on the
employer, arguing that, “it has to be for the employee to decide whether or not
to carry on in the same employment and take the risk of a breakdown in his
health or whether to leave that employment and look for work elsewhere
before he becomes unemployable.”

This proposition runs contrary to the expected role of an employer in the case
of threatened physical injury where an employer would be remiss in not
dismissing or otherwise removing an employee who is at risk of injury.
However, it appears that when the threatened injury is mental it is sufficient
for the employer to sit back and in the words of the court “take the risk of a

(13) In all cases, therefore, it is necessary to identify the steps which the
employer both should and could have taken before finding him in breach of
his duty of care.

(14) The plaintiff must show that the breach of duty has caused or materially
contributed to the harm suffered. It is not enough to show that occupational
stress has caused the harm.
Laffoy J., went on to say “Earlier, in its analysis of the issue of causation, the
Court (at p. 16) illustrated the distinction inherent in this proposition. Where
there are several different causes, as will often be the case with stress related
illness of any kind, the plaintiff may have difficulty proving the employer's
fault was one of them. This will be a particular problem if the main cause was
a vulnerable personality which the employer knew nothing about.”

This is significant. In negligence cases it always falls on the employee to show
that it was the breach of duty by the employer (a failure to take reasonable
steps or to comply with legislation) which causes the injury. As stated by the
court, the fact that the stress caused the injury is insufficient, unless this is
coupled with evidence that the employer ought reasonably to have prevented

(15) Where the harm suffered has more than one cause, the employer should
only pay for that proportion of the harm suffered which is attributable to his
wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise
the question of apportionment.

(16) The assessment of damages will take account of any pre-existing disorder
or vulnerability and of the chance that the claimant would have succumbed to
a stress-related disorder in any event. The employer could only be found liable
for that part of the illness which the workplace triggered.

Liability for Suicide

The English Court of Appeal decision in Corr v IBC Vehicles Ltd20 held that an
employer could be found liable for the suicide of an employee. 21 The plaintiff‟s
husband, an employee of the defendant, a man described as being of “ordinary
fortitude” survived a near fatal accident at work22 in 1996 leading over the next six
years to his suffering an escalating depressive illness which culminated in 2002 in his
taking his own life. The defendants admitted liability for the initial injury but denied
liability for the suicide. The trial court agreed, arguing that the employee‟s suicide
could not have been reasonably foreseen. The Court of Appeal however, reversed this
decision, the majority holding that foreseeability of suicide did not have to be
foreseen. Instead they cited with approval decisions of the courts of British
Colombia23 and Queensland24 that held that if depression were compensable then only
“logic or policy or….evidence” could exclude death by suicide as a compensable
harm. In this case while the particular outcome (suicide) may not have been
foreseeable, the depression had been. Sedley LJ (with whom Wilson LJ concurred)
held that as suicide arose as a result of the depression it constituted the „same type‟ of
injury and was therefore compensable.

Ward LJ, in the minority, held that the suicide which arose could not be held to have
been reasonably foreseeable. As to whether the suicide was a “kind of damage” that
was foreseeable, this decision in the view of Ward LJ was one of “policy” requiring
the court to consider whether it was “fair, just and reasonable” to hold the defendants
responsible.25 Ward LJ was influenced in this regard by the “extent to which Britain
is in the grip of a “compensation culture”.”26 He ultimately however, reached his
decision on the unarguably principled basis that at the time of the accident, it could

   [2007] 1 QB 46.
   This decision is being appealed to the House of Lords and is listed for hearing in December 2007.
   While attempting to repair a malfunctioning metal press the deceased narrowly avoided decapitation
when a sheet metal panel shot out from the press. Most of his ear however, was severed requiring
extensive surgery.
   Wright Estate v Davidson 88 DLR (4th) 698 where a claim for suicide following a road traffic
accident was rejected because the deceased was found to be acting without any “disabling mental
illness” when she took her own life.
   Lisle v Brice [2002] 2 Qd R 168 where a victim of a road accident had committed suicide three years
after the accident. In that case it was held that if depression was foreseeable then suicide was also
   Corr v IBC Vehicles Ltd [2007] 1 QB 46 at para 61.
   Ibid at para 63.

not be foreseen that a man of Mr. Corr‟s personality would have committed suicide as
a result of the accident which befell him.

A number of issues are of concern in this judgement. Firstly, the court (Ward LJ in
particular) seemed swayed as much by concerns as to an escalating compensation
culture as to the merits of the case on legal principle in reaching his decision. This is a
worrying trend in mental injury cases that does not feature to the same extent when
physical injuries are concerned.
The finding by the majority that the suicide was foreseeable is also questionable. They
simply held that as the depression was foreseeable then suicide was also foreseeable
(on the basis that both were linked and both were the same “type of damage”).
However, given Mr. Corr‟s particular background (a married man with children and
no history of depression) he would not have been a particularly likely candidate for
suicide and it certainly in this author‟s view would not be foreseeable on the balance
of probabilities, the test used in civil cases. This decision is currently on appeal to the
House of Lords and it will be of interest to the Irish courts also as to how they will


Liability for work related mental injury is dealt with in a somewhat piecemeal fashion
by the courts at present. While the overriding principles are those of negligence the
courts place a distinction between nervous shock cases, fear of disease or worried well
cases, and stress related injury cases. The courts also appear to be particularly swayed
by policy arguments and a fear that the floodgates will open if policy limitations are
not rigorously applied, leading to a deluge of fictitious claims. It is submitted that
such fears are ill-founded and that courts should not adhere too closely to subjective
issues of policy with its unbalanced emphasis in particular on the economic
implications of claims. Instead, the legal principles of duty, breach, causation and
remoteness ought to be applied and once satisfied liability imposed.
As regards stress related mental injury, it is accepted that there are clear issues of
foreseeability to be addressed and while employers cannot be expected to be mind
readers, evidence of overwork and clear complaints by an employee of injury to
health should be sufficient to warrant a response from an employer. The absence of

any response or at a minimum a policy to deal with stress in the workplace should, in
such a case, provide a clear basis for the imposition of liability.
The forum for dealing with claims of mental injury, in particular where it arises from
occupational stress is, it is submitted inappropriate. In most cases of employment
breaches the forum in Ireland is a tribunal or some kind, be it the Employment
Appeals Tribunal or the Equality Tribunal. However, in cases of bullying, stress and
other health and safety claims at work, litigants are forced to argue their way through
the courts structure. This is costly, time consuming and stressful – in a manner than
Tribunals, it is submitted, are not.
Ultimately, while it is welcome that the liability of employers for negligently inflicted
mental injury is being recognised, there is some way to go. The emphasis of policy
over principle must be curtailed and a less adversarial forum for dealing with such
disputes ought to be introduced.

                                           Appendix I

Facts and application of principle in Sutherland v Hatton27
Mrs. Hatton:
Mrs. Hatton was a school teacher from 1989 until October 1995, when she was signed
off work due to „depression and debility‟ and did not return. The trial judge, noting
that the school had neither a policy on stress nor a system of checks to monitor
employees at risk of stress related injury and found in favour of the plaintiff. The
appeal Court overturned this finding, stating that the case was one which failed on the
issue of foreseeability.
Having rejected the contention that teaching was an inherently stressful job, in which
damage ought to have been foreseeable (as argued by the plaintiff‟s counsel), the
Court held that the plaintiff‟s absences alone, and the nature of her workload, would
not lead a reasonable employer to conclude that injury was foreseeable.
In this case, the employee‟s workload had not significantly changed over the years,
she had never complained about her workload, and her absences, frequent from 1989
to the time of her breakdown, were easily attributed to personal reasons. They further
stated however, that in the event that the foreseeability threshold had been satisfied
there would still be questions to answer on the issue of causation, given the stressful
nature of the plaintiff‟s private life. The Court found that an argument could be made
that the breakdown would have occurred in any event, and that the employer would
not have been in a position to prevent it. To support this finding they pointed to the
fact that the plaintiff had divorced in 1989, that she was a single mother with two
children and that she had been the victim of an assault.
This finding raises serious questions as to the stringent test to be satisfied by a
plaintiff in a particular case. It also raises serious questions as to issues of privacy,
and the extent to which an employer should be able to investigate the personal lives of
employees in the apportionment of blame.
While the ultimate finding of the appeal Court itself is not in question, it is peculiar
that no reference was made to the employer‟s general duty of care to provide a safe

    This section is drawn from an article on the case by this author, see Connolly, U., "Sutherland v
   Hatton: A Solution to Ireland’s Occupational Stress Question?," (2002) 20 ILT 230.

place and system of work, or indeed to statutory obligations to have a safety statement
that incorporates a risk assessment of the workplace. None of this seemed to be in
place in the school.

Mr. Barber:
Mr. Barber was an experienced maths teacher, who had worked for his employer, a
comprehensive school, from 1984 until November 1996 when he was signed off work
by his doctor, who diagnosed depression brought about by his workload.
Unlike the case of Mrs. Hatton there were clear medical indications that all was not
well. He worked approximately 61-70 hours a week and while his employers agreed
that this was excessive, it was common practice given the pressures the school was
under at that time. From 1995 the extent of his workload was causing significant
problems, resulting in his taking three weeks off in May 1996 due to depression and
stress. He had also complained on three occasions from May to July 1996 to his
supervisors about his workload and its effects on his health. The response to his
complaints was largely unsympathetic, the advice to him being „to prioritise‟ more
effectively. Finding in favour of Mr. Barber, the trial judge was again critical that
there had not been a policy on stress in place, and no steps taken to follow up Mr.
Barber‟s complaints or the reason for his absence. The Court of Appeal overturned the
finding of the trial Court, being swayed by the argument by the defendant‟s counsel
that the foreseeability test had not been satisfied.

As explained by the Court,

        “It is difficult indeed to identify a point at which the school had a duty to take
        the positive steps identified by the [trial] judge. It might have been different
        if Mr. Barber had gone…. at the beginning of the autumn term and told [his
        employer] that things had not improved over the holidays. ….it is expecting
        far too much to expect the school to pick up the fact that the problems were
        continuing without some such indications. ….in our view the evidence, taken
        at its highest, does not sustain a finding that they were in breach of their duty
        of care towards him.”28

     Paras 57 – 59.

It is submitted that this was a particularly stringent application of the Court‟s
guidelines to the facts of the case. Applying the two-step approach to foreseeability,
as outlined above, it is clear that the injury was brought about by stress caused at
work. It is further submitted that his employers ought reasonably to have foreseen the
possibility of such an eventuality given his absence in May, and his complaints prior
to the summer holidays. There was no action whatsoever taken by his employers in
response to his complaints or his earlier absence, and no attempt to tailor his workload
to meet his ability. In fact, following the summer holidays, it was clear that the new
acting headmaster had concerns as to Mr. Barber‟s health as he had asked a colleague
to „keep an eye‟ on him, but had not sought to do anything further. Much of the
Court‟s findings seemed to focus on the fact that Mr. Barber had not spoken in detail
to his employers about the nature of the effect the overwork was having on his health.
To place such a burden on an employee is surely to expect too much. Employees will
traditionally be wary of being seen as not able to cope, and also wary of exposing
themselves to the stigma of mental imbalance. In the area of physical injury, such a
failure on the part of an employee would hardly support a finding of employee
contributory negligence, let alone absolve the employer entirely of liability. 29 The
Court, it is respectfully submitted, erred in placing such a burden in this instance.

Mrs. Jones:
Mrs. Jones was employed by Sandwell local authority, at Sandwell College, from
1988. She had a period of absence from work in 1991 when she was diagnosed with
depression and with having a „vulnerable personality.‟ She left this section of the local
authority and in 1992 was employed as an assistant at a local authority training centre.
In 1995 she again left on sick leave suffering from anxiety and depression. She was
made redundant in December 1996 and sued for injury arising from occupational
stress. The trial Court found in her favour, swayed by the evidence of overwork and a
category of complaints. On appeal the Court accepted that she had been overworked.
The personnel officer himself had admitted as much stating that “it was a calculated

   See for instance Allen v Ó Súilleabhán High Court 28 July 1995, where a 25 year old student
midwife sustained a serious back injury when holding the leg of a woman who was giving birth.
Although aware at the time of the strain which she was subjecting herself to no liability attached to her
from her actions as it was felt that it would have been extremely difficult for a student midwife to
interrupt or complain during the procedure.

gamble to expect one person to do the job of two or three.”30 Despite this the Court
questioned whether her breakdown had been foreseeable given that she had not been
off sick during the period in question. The Council had argued that they knew nothing
of the 1991 breakdown and while the Court was not entirely convinced of the
Council‟s ignorance on this point they did not presume such knowledge. The appeal
Court criticised the trial judge for not clearly separating the issues of causation,
foreseeability and breach of duty. The Court however was willing to accept that,

      “…unreasonable demands are relevant to the question of foreseeability.
      Placing unreasonable demands upon an employee and then responding in an
      unreasonable way to the employee‟s complaints about those demands are
      among the factors to be taken into account in deciding whether the employer
      knew or ought to have known that the pressures of the job were causing
      occupational stress.”

Mrs. Jones in this case had repeatedly met with her supervisors outlining complaints
as to overwork and the effect it was having on her health.
Ultimately finding a breach of duty the Court quoted with approval the finding of
Lord Slynn in Waters v Commissioner of Police of the Metropolis31:

     “If an employer knows that acts being done by employees during their
     employment may cause physical or mental harm to a particular fellow
     employee and he does nothing to supervise or prevent such acts, when it is in
     his power to do so, it is clearly arguable that he may be in breach of his duty
     to that employee. It seems to me that he may also be in breach of that duty if
     he can foresee that such acts may happen and if they do, that physical or
     mental harm may be caused to an individual.”32

In this case it was clear that had the employer ceased to place excessive demands on
Mrs. Jones, her illness might have been avoided. The appeal Court found in the

   Para 180.
   [2000] 4 ALL ER 934, at 938c.
   Para 208.

plaintiff‟s favour with reluctance, on the basis that no clear medical evidence was
forthcoming to validate her claim.

Mr. Bishop:
The complainant worked for the defendant company from April 1979. In 1992 an
American company took over the company and reorganised the way work was done.
Although most people coped well with the changes, Mr. Bishop, who was meticulous
by nature, found the changes stressful and complained on numerous occasions. This
appears to have been discussed by his supervisors. For a period of approximately
three weeks, he was absent due to neuroasthenia (fatigue), for which he submitted
sick notes. He returned to work and suffered a breakdown on February 24th 1997. The
trial judge stated that the GP‟s note should have sent „alarm bells ringing.‟ In
particular, he was critical of the lack of training for employees on coping with stress
and stated that “in the 1990‟s properly responsible companies ought to have been
aware of the factors leading to cause stress.”
However, the appeal Court disagreed, and argued that the sick notes, were „a shallow
foundation‟ for a finding of liability. Again no reference was made to statutory or
other obligations on an employer to have in place preventative measures to cope with


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