Bullying
Cases
Kelly -v- Bon Secours Health System Ltd
[2012] IEHC 21
Cross J.
“3.1 I propose to analyse this claim firstly on the basis of the legal principles involved and then proceed to go through the various allegations in turn of “bullying and harassment” made by the plaintiff to assess whether there is liability in respect of them.
3.2 It is important to realise, of course, that there is no separate tort of “bullying and harassment”. The defendant as an employer of the plaintiff owes a duty of care not to expose their employees to injury and one of the sub-aspects of this maybe a question of bullying and harassment.
3.3 It is further important to realise that in this case, the plaintiff is not just complaining of “bullying”. She makes the case that there is breach of contract, bullying, harassment, discrimination and intimidation against her.
3.4 Fennelly J. stated in Quigley v. Complex Tooling and Moulding Limited [2009] 1 I.R. at para. [13] and following:-
“[13] Counsel for the defendant, accepted that an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of ‘workplace bullying’ at para. 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as an accurate statement of the employer’s obligation for the purposes of this case. That definition is:-
‘Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.’
[14] Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
3.5 In this case, of course, the essence of the plaintiff’s case is that the bullying and harassment came not merely from fellow employees but were in effect orchestrated or directed from the management of the defendant’s company or what is sometimes known as corporate bullying.
3.6 I have been referred to the helpful decision of Herbert J. in Sweeney v. Board of Management Ballinteer Community College (Unreported, High Court, 24th March, 2011), in which Herbert J. analysed a number of the instants which the plaintiff relied on in her claim for personal injuries in what she claimed was unlawful bullying and harassment of her by the school principal.
3.7 Some of the plaintiff’s complaints were upheld and others were not. At the outset, Herbert J. set out his view that there had an “escalating mutual distrust” between the plaintiff and the principal as disagreement followed disagreement. He found that:-
“the plaintiff came to believe that every action or omission on the part of Dr. C., whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.”
3.8 In that case, the analysis which I found most helpful, Herbert J. was critical of a number of the aspects of the plaintiff’s conduct but found certain behaviour amounted to bullying and stated:-
“In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.”
3.9 In this case, I came to the conclusion that the plaintiff did hold the same belief as was held by the plaintiff in the Sweeney case (above) i.e. that every reaction of the management of the defendants was directed against her and that even matters that were clearly set out for her benefit were in fact part of a grand design to do her down.
3.10 I was strengthened in that view by certain aspects of the medical evidence (which I will discuss further in this judgment).
3.11 To come to that general conclusion, however, is not to decide the case as the individual actions complained of by the plaintiff will have to be analysed, as was done by Herbert J., in the Sweeney case above, and a decision reached as to whether any of them individually and/or collectively in all the circumstances amounts to bullying and harassment bearing in mind the plaintiff’s other causes of action as pleaded.
3.12 In the United Kingdom, the Court of Appeal clarified the law in four joined stress and work cases and in Sutton v. Hatton [2002] 2 AR 1, the court placed considerable emphasis on the employees obligations to inform the employer of the nature of the difficulties and the fact that the difficulties are having an adverse effect on their health and Hale L.J. set out sixteen propositions for dealing with cases of bullying and harassment.
3.13 Laffoy J. in McGrath v. Trintech Technologies Limited [2005] I.R. 382, adopted these sixteen propositions stating that they are:-
“helpful in the application of legal principle in an area which is characterised by difficulty and complexity, subject, however, to the caveat of Lord Walker in Barber v. Somerset County Council case – that one must be mindful that every case will depend on its own facts.”
3.14 Furthermore as is clear in this case as the allegations relate to what I have described as corporate bullying in the main and as the history of the case indicates the plaintiff bringing numerous grievances to the attention of the management, the issues of the foreseeability and notification to the employers are of less significance here than in the Sutton v. Hatton case (above).
3.15 All in all, I find that the best summary of the questions to be addressed was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233 as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.””
……
(b) The Bullying Issue
9.9 The plaintiff has an actionable case for damages for bullying, harassment and discrimination arising out of some but by no means all of her complaints. She has sustained an injury rather than acceptable stress to meet the test of Clarke J. in Maher v. Jabil (above).
9.10 I have been furnished with the medical report of Dr. Brian Kelly dated 11th November, 2005, the psychological report of Dr. Jean Lynch of the Anti-Bullying and Research Resource Centre of Trinity College Dublin, Dr. Aidan O’Gara and John Casey, Occupational Health officers on behalf of the defendant, Dr. John Gallagher, Consultant Occupational Physician who supplied a number of reports on behalf of the defendants and Dr. Paul O’Connell, Consultant Forensic Psychiatrist who reported on 11th April, 2007 and also gave evidence on behalf of the defendants.
9.11 I found all of the above very helpful and of great assistance. In particular, I found of assistance the evidence of Dr. O’Connell in relation to the personality of the plaintiff. I make this point notwithstanding the forensic cross examination of Dr. O’Connell by the plaintiff which would have done justice to the most proficient practitioner in the round hall! The plaintiff indeed got a number of admissions from Dr. O’Connell that a number of his conclusions were based upon false assumptions and in particular Dr. O’Connell’s conclusions that the plaintiff would have lived in the United Kingdom in the 1970s with her politically active husband which experience would have been stressful and which she survived, was based upon a false assumption.
9.12 Dr. O’Connell was also incorrect in the date of the plaintiff’s marriage and the number of her children.
9.13 However, Dr. O’Connell does state and I accept:-
“It is possible that Ms. Kelly has a paranoid personality which would confer an increased liability to misconstrue a hostile intent to the comment, behaviour or attitudes of others. It would be useful to have access to independent corroborating information such as her primary care records…”
9.14 I believe that any assessment of the plaintiff must conclude that the plaintiff has indeed come to the view wrongly, that all the actions of the defendants were motivated by some malice against her.
9.15 Notwithstanding that view, however, given the findings I have made previously, it is clear that the defendants, at management level were motivated by hostility to the plaintiff stemming initially from the time of her accident.
9.16 This motivation continued until the plaintiff was frogmarched off the premises which was by any scale of thing an extraordinary insult to her.
9.17 The attitude of the defendants may have been due to exasperation which was understandable but was not (in the manner that I have found above) justified.
9.18 It is correct that the plaintiff did work on after being suspended and removed from the defendant’s premises.
9.19 In his examination of the plaintiff, Dr. O’Connell was impressed by how depressed the plaintiff was and indicated that as far as he was concerned, the treatment she was undertaking was not suitable and she was not being given proper antidepressants.
9.20 In his evidence, Dr. O’Connell indicated that having observed the plaintiff conducting her case, he saw somebody who did not appear to be depressed and indicated that it was possible that the adrenaline of the court proceedings carried her on but in any event her examination in November and her upset arose after a number of very stressful instances in her life including the death after illness of her partner and the death of a number of close members of her family.
9.21 In all the circumstances, it is difficult to untangle the different cause of factors in the plaintiff’s present make up. The defendants must indeed take the plaintiff as they find her but they are not responsible for an underlying condition which they did not cause. They are, of course, responsible for the consequences of their actions which may well have had an effect upon the plaintiff which was greater than it would have been on somebody else.
9.22 In addition, of course, the depressive nature of the deaths in the plaintiff’s family and her partner must be extracted from the equation.
9.23 Mr. O’Connell in his conclusions states:-
“In my opinion, the symptoms which Ms. Kelly complains of are essentially depressive in character and grounded in multiple bereavement. There are a number of alternative causes for these symptoms that are independent of the alleged harassment and bullying at work. It is a matter for the court to determine the facts of the allegations. If the allegations are viewed as wholly or partly true there may have been a synergistic effect leading to a worsening of her condition. In addition there may have a complex interaction between Ms. Kelly, her depression, her behaviour and her perception of the behaviour of others that led to a mutually reinforcing negative cycle that corroded workplace relationships…”
9.24 I accept that analysis.
9.25 Bearing in mind Dr. O’Connell’s professional criticism of his colleagues in the psychological profession, I also accept the conclusion of Dr. Jean Lynch from Trinity when she states:-
“The physiological, psychological and behavioural problems that Ms. Kelly suffers are consistent with those well documented in the literature on stress. This has resulted in heightened levels of anger and anxiety, moderate self esteem, extremely severe levels of somatic symptoms, insomnia/anxiety and social dysfunction, mild depressive symptoms and severe levels of intrusive thoughts in behaviours.”
9.26 Accordingly, I have come to the view that the plaintiff’s acute depressive symptoms are not related to the bullying but the other symptoms are related. I believe that as the trust between the plaintiff and the defendants, has in my view irretrievably broken down, that the plaintiff will not be likely to return to work and that fair award of damages for the severe distress and insult she has suffered to the wrongs attributed to the defendant would be to include past and future general damages to a sum of €60,000.
10. Conclusion
10.1 From the foregoing it follows that the appropriate order to make is a decree in the sum of €90,000 to which the plaintiff would be entitled, on the face of it, to her expenses and outlay.”
Ruffley -v- The Board of Management of Saint Anne’s School
Hurley -v- An Post
JUDGMENT of Mr. Justice McDermott delivered on the 6th day of October, 2017
1. The plaintiff’s claim is for damages for negligence and/or breach of duty and/or breach of contract against her employer arising out of alleged bullying by her co-workers following an incident which occurred at her workplace on 26th July, 2006.
2. The plaintiff was born 6th October, 1964. She is a married lady and has two children. She was employed by An Post on 25th August, 2003 in a part-time position. She served under various contracts of employment between August 2003 and July 2011 as an ancillary postal sorter at the Cork Mail Centre, Little Island, Co. Cork. Her duties consisted mainly of video-coding mail. A good deal of this work was sedentary but also involved periods during which she would use a trolley to gather items of post from colleagues where the address had been mis-read by the computerised system or could not be read. She was employed in the centre for five four and a half hour shifts on Monday to Friday and a four hour shift on Sunday which attracted over-time. She said that she enjoyed the social side of work meeting people at breaks, for lunch and/or social drinks on Friday evening. She considered that she was friendly with most of her colleagues and got on well her with co-workers and management.
The Incident of 26th July 2006
3. On 26th July, 2006 while she was collecting postal packets with a trolley she asked a work colleague Mr. J. to pass items to her. She knew him to see but had no direct contact with him before this incident. He looked at her. He took some postal packets and fired them into the trolley. His eyes were bulging and he seemed really angry. She could not understand why he was behaving in this manner. She tried to get away from him immediately. The plaintiff’s evidence is that she was shaking and in fear. He approached and came very close, almost nose to nose with her. He told her aggressively not to “f… tell me what to do”. She was afraid that he was about to head-butt her. His nose was touching her nose when he uttered these words. As he said the words he pulled the trolley. She said that she was afraid of her life of him. She accepted that there was no other physical contact made by Mr. J with her in the course of the incident.
4. The plaintiff met her supervisor immediately afterwards who asked whether she was alright. She was brought to the office and asked to fill in an incident report. Ms. Paula McNamara who also witnessed the incident drove her home. While being driven home she was shaking. She had never experienced such an incident. She told her husband and father about the incident which she found very frightening. She said she was unable to return to work immediately.
5. The plaintiff returned to work on 15th August, 2006. Mr. J. was not working there at the time having been suspended. When she returned to work in the coding room she greeted her fellow employees but it was as if she had not spoken. There were three of four co-workers there at the time. She knew that there had been some resentment at the perceived treatment of Mr. J. in the wake of the incident but had not been prepared for how bad the atmosphere was. At approximately 5:50pm a colleague sat down beside her. She was the first person to say hello to her and welcome her back. She suggested that “she should not give into the atmosphere …and she should stick it out”. At 6:15pm she went out to the bench area for her break. There were a number of benches at which her colleagues took their break. She sat at a bench but when others came out they all sat separately from her. They did not engage with her or speak to her. She felt that her colleagues blamed her for the events of the 26th July and the repercussions of the incident for Mr. J. She returned to the coding room after the break but was told by her supervisor that she could go home between 8 and 9pm.
6. The following day at approximately 6pm she was approached by the Human Resources Manager, Mr.Ned Keane who asked how she was. She told him of her difficulties which he appeared to know about. She complained that people were ignoring her. He suggested that she give them time and advised that “[it] will die down”. She gave full details to him of what was happening. She complained to another supervisor Mr Harrington some three weeks later.
7. The plaintiff explained how matters deteriorated. She felt that people were ‘blanking’ her but when she complained about this she was ignored. People went out of their way to be disobliging and would deliberately inconvenience her in ways that were petty but relentless. She felt that 75% of her colleagues were ignoring her. This continued into September and October 2006. She felt she was being ostracised and that it was getting worse. Small incidents occurred. When commencing a shift, she was obliged to sign in. Pens were supplied for this purpose. She described how these were habitually removed by others signing in to inconvenience her. On other occasions doors were slammed in her face.
8. In November 2006 matters were not improving. She became very nervous about going to work and felt increasingly isolated there. On some shifts she never spoke to anybody. She experienced continuing pressure coming up to Christmas and was made to feel unwelcome to attend the Christmas staff gathering.
9. There was a high level of tension amongst the workforce of 132 employees followed the incident on the 26th of July. Immediately afterwards Mr. J. was suspended due to his alleged behaviour towards Mrs Hurley and his gross insubordination towards management staff dealing with the issue. He allegedly pushed them and was verbally abusive and truculent towards them. He later attempted to return to the workplace. The Gardaí had to be called to ensure that he did not. Management remained on duty on the gates to prevent him from gaining access to the premises. During this period the plaintiff remained out sick. She believed that the trade union supported Mr. J. in his dealings with management and that she was not offered any support. She concluded that she was victimised by her colleagues following her return and Mr.J’s suspension and ultimate dismissal. Most of her work colleagues considered that his dismissal was unfair. She considered that her ostracisation and isolation by her colleagues occurred because they blamed her over what happened to Mr. J.
10. The plaintiff spoke to a number of people including Mr. McCarthy her supervisor and Mr. Ned Keane, the Human Resource Manager and Mr. Harrington. She attended her general practitioner Dr. Lucy Fleming on 5th January, 2007. She did not attend work after the Christmas break from the 28th December as she felt unable to cope with the stress. She obtained a medical certificate for a further ten days and was encouraged to discuss her situation with her supervisor with a view to resolving the matters with her colleagues. When she returned to work the same isolation continued.
11. The plaintiff was unaware that there had been a number of similar incidents prior to this incident between Mr. J with other employees and management. It was suggested to the plaintiff in cross-examination, that she did not make any attempt to communicate with her co-workers on her return. In addition, it was suggested that there were a large number of pens available at signing in. Some people tended to walk away with the pens but there were a sufficient number of pens for staff to register their attendance. Furthermore, it was suggested that the slamming of the doors did not occur because the doors were spring-loaded and could not be slammed. It was also pointed out that she had not identified any co-worker who had allegedly slammed a door in her face. In essence it was suggested that the doors could not be slammed because they had a retarding mechanism which prevented that happening. No technical evidence was adduced to support this proposition. It was suggested that she was not treated in the way alleged and if she was that it did not qualify as behaviour tantamount to bullying or harassment.
Prior to the Incident
12. Mr. J. had a history of disciplinary infractions prior to the incident of the 26th July. On 16th June 2006 a complaint was received from a staff member Ms. L that Mr. J. had verbally abused her. He acted in an aggressive manner towards the complainant by standing close to her and blocking her path when she was attempting to do her work. He then verbally abused his supervisor. On 14th July Mr. J. was reported to have behaved in an aggressive manner to an employee when he was moving some postal packages. The employee felt shocked at his attitude and informed him that he was a supervisor and was simply doing his job. The following day Mr. J. was also reported for refusing to obey instructions and querying the authority and grade of his supervisor.
13. In the records of the incident of 16th June, 2006 Mr. J. was reported to have acted aggressively towards Ms L who was accused of doing something behind his back. He was approached by Mr. Ned Keane the Human Resources Manager on the 22nd June, 2006. He was informed about this complaint and given an opportunity to reply. He stated that he had no recollection of any such incident. He was asked to read a copy of the complaint and furnish a response. He declined to do so and stated that he would throw it in the bin. Due to his cavalier attitude, his lack of respect to the members of management and disrespectful dealing with members of staff it was recommended that some form of disciplinary action be taken against him.
14. On 30th June, a letter was sent by Mr. Keane informing Mr. J of the serious view taken of his conduct, his attitude towards the complaint, management and staff members and an explanation was sought. He was informed that the case might involve serious disciplinary action against him up to and including dismissal.
15. Prior to this letter he had been informed by Mr. Keane by letter dated 17th June 2006 that he had come to adverse notice on five previous occasions, twice for poor performance of duties and three times for ignoring or failing to abide by management instructions during May and June 2005. He was warned that if he came under any further adverse notice his services would be terminated without further warning. Though these incidents and how the employer dealt with Mr. J were the subject of evidence during the trial they did not form part of the plaintiff’s pleaded case: there was no claim for damages arising out of the employer’s breach of duty to the plaintiff in failing to dismiss or otherwise suspend Mr. J . Though this history was documented during discovery no further particulars were delivered. The case was pleaded as a bullying or harassment claim.
After the Incident
16. Following the incident with Mrs. Hurley, Mr. Harrington instructed Mr. Fitzgerald, another member of the management team to suspend Mr. J immediately. When Mr. J. returned from a break at 8:40pm he was approached and asked to accompany Mr. Fitzgerald to the office as he wished to speak to him. He was told to “feck off we’ve been through this shit already, now feck off and leave me alone.” He then walked away. Mr. Fitzgerald asked Mr. Barry, the Floor Operations Manager to accompany him to meet Mr. J. He transferred two people away from the area where Mr. J. was working. He asked whether he wanted a union official or some other person to be with him. He was informed that he was suspended from duty. Mr. J. responded aggressively and questioned his authority and told him that he was not accepting it. He told Mr. Fitzgerald to get out of the building. Mr. Fitzgerald and Mr. Barry left the floor. Mr. Harrington then arrived. Mr. Harrington then typed an official letter of suspension to Mr. J. He handed this letter to Mr. J who rejected it. He was asked to leave the premises and informed that if he did not the Gardaí would be called to have him removed. He refused to comply. The Gardaí were then called by Mr. Harrington. During the call it was alleged that Mr. J. approached Mr. Harrington and hit him on his shoulder while questioning his authority aggressively. The trio left the floor to await the arrival of the Gardaí who arrived at 9:40pm. They were informed of what had transpired. The Gardaí and Mr. Harrington approached Mr. J and called him aside in order to speak to him. He refused to comply with the request giving a number of reasons “none of which one could rationalise”. He again prodded Mr. Harrington repeatedly on the shoulder questioning his authority. The issue of Mr. J’s mental stability was briefly considered. Following further discussion, it was determined that Mr. J should be allowed to continue to work on his own and complete his shift rather than be removed from the floor by the Gardaí which would have involved physical restraint. At this stage Mr. Harrington met with two branch officers of the Communications Workers Union who were working on night duty and conveyed the company’s position. Mr. Harrington requested that they speak discreetly with some of their members in order to explain the situation.
17. At 12:45am Ms. Karen Hassett, a supervisor, was approached by Mr. J. who appeared very agitated and wanted to know whether the Gardaí had gone. He questioned her in a very aggressive manner and sought to obtain her personal details including her address from her. He pointed his finger into her face and threatened that he would push her and crush her until she broke. She again contacted the Gardaí at 12:55am. The gardaí attended and offered assistance. They inquired whether she would like them to remain in the building until he left. Since it was now 1:20am and Mr. J was due to end his shift at 1:30am she asked them to leave. She did not wish to aggravate the situation any further. Mr. J left at 1:30am.
18. The following day Mr. O’Sullivan, a Welfare Officer, was reported to have called to Mr. J’s house. He too was greeted in a very aggressive manner and told to leave the property at once. Mr. J. threatened to “break his neck” if he did not leave. He was reported as having unleashed a barrage of verbal abuse at Mr. O’Sullivan.
19. The management instructed staff to ensure that Mr. J. was not allowed into the building to work his shift on 27th July. The gates were closed at approximately 5:45pm. Mr. J. arrived at the main entrance and was told he was not allowed to enter. The gate was opened to allow other staff into the building. He reversed his car and drove past members of staff. He went through the barriers. The Gardaí arrived at approximately 5:55pm and escorted him from the building. They spoke to him for approximately one hour outside the gate and Mr. J. then drove away.
20. The following day at approximately 2pm Mr. J. had to be escorted from the building by Gardaí. All gates were closed at approximately 5:40pm. Mr. J. again arrived and was met by members of management and informed that he was not allowed in. He parked his car at the gate near the main entrance and would not go away. Management instructed that the gate be opened to let staff and deliveries in. Mr. J. remained parked nearby until 10pm. A number of union representatives went to speak to him during that period.
21. On 31st July, 2006 a petition was sent to management signed by 96 of the 132 members of staff which expressed “our disgust at the appalling treatment of our colleague [Mr. J.] in relation to an incident that occurred on Wednesday 26th July. This incident should have been treated with sensitivity and dignity but grew into a spectacle by being mis-managed from the outset. The amount of manpower and garda presence was unjustifiable and made [Mr. J.] look like a major threat. Had the situation being managed appropriately, we feel that it would not have escalated into such an exhibition”.
22. At 10:15pm on Tuesday 1st August staff members took unofficial action and removed themselves for one hour from the shop floor for the purpose of conducting a meeting about the matter in the canteen. This was done without notice to the management. Management complained to Mr. Sean McDonagh a National Officer of the Communication Workers Union on 2nd August. In particular, it was emphasised that the Union had been briefed in relation to the situation. By reply dated 2nd August Mr. McDonagh stated that the union was extremely concerned regarding developments over the past week “most particularly in relation to the security of all staff members”. He sought an investigation independent of the management at Cork.
23. In a Cork Mail Centre Branch CWU Newsletter of 3rd August 2006 Mr. Gerry Brown, Branch Secretary of the Union addressed his colleagues and informed them that the matters discussed at the Tuesday night staff meeting were now the subject of discussions at the highest level between the Union and An Post. The notice requested staff “to keep their discipline end”. It accepted that morale was at “an all-time low” but to do anything now other than be disciplined would only hinder these endeavours and make an already “bad” situation worse. These steps appear to have been taken unilaterally at best, without a proper understanding of, or at worst, indifference to, what had actually happened and the previous incidents of Mr. J’s difficult, threatening and truculent disposition which had been repeated during the course of the latest encounter with Mrs. Hurley and its immediate aftermath. Though Mr. J may have had a mental health issue, his aggressive behaviour at this stage presented a serious problem for management and a threat to the safety and well-being of the defendant’s employees.
24. It is clear from these developments that tensions were running at a very high level amongst the majority of the staff members at the sorting centre. It is also clear that there was an enormous body of sympathy for Mr. J. and a deep resentment at the manner in which he and incident had been dealt with by management. There was little or no regard for the plaintiff’s position in all of this. It is also clear from much of the evidence that emerged later that a number of staff members who had signed the petition were unaware of the previous incidents and the manner in which management had been treated by Mr. J. when they approached him. It is also clear that a number of employees had already complained about Mr. J’s aggressive behaviour prior to the incident on 26th July. I am satisfied that this high level of resentment was also reflected in the staff’s treatment of Mrs. Hurley when she attempted to return to work in 2006 and 2007.
Further Evidence
25. A number of witnesses were called to contradict the evidence given by Mrs. Hurley. Her colleagues accepted that Mr. J was a strange or odd personality who kept to himself. They believed that he had been treated unfairly by management but rejected that this was the cause of any trouble with Mrs. Hurley. Ms. Aherne was appalled by her allegations of isolation and intimidation by staff. Ms. Donovan also rejected the specific allegations made by Mrs. Hurley about the removal of pens or paper for signing in by other staff members and the alleged incidents of door-slamming. She did not accept that Mrs. Hurley was discouraged from attending social functions. A list went up on the notice board and it was said that Mrs. Hurley could have put her name down and attended. Indeed, she suggested that Mrs. Hurley was “slightly intimidating” to some and had “a quick tongue”. She was not excluded for example, from joining the lotto syndicate if she wished; all employees were eligible and could enter and withdraw from it as they wished. She had signed the petition and her perception of the matter was based on what others told her.
26. Ms. McNamara, who witnessed the incident with Mr. J. had been friendly with Mrs. Hurley. They had worked together. She did not see any bullying of the plaintiff by others following her return to work though some people may have turned against her. She considered Mrs. Hurley to be a strong personality. She acknowledged that the incident had been a “horrible” experience for Mrs. Hurley. However, she did not accept that anybody blamed her for the incident or how Mr. J. was dealt with by management. She felt that on her return Mrs. Hurley remained a bit aloof and was saying that nobody was talking to her. She did not accept that an anonymous letter had been circulated about Mrs. Hurley a suggestion also rejected by other witnesses.
27. Ms. Isherwood did not witness the incident on 26th July. She had worked with Mr. J and also found him strange- a man who loved his own company. He could be odd. She also believed that the incident was handled very badly and that Mr. J had been treated appallingly. She said that on her return to work Mrs. Hurley did not engage with anyone and sat at break-times with her headphones on but she did not recall her sitting on her own. She also rejected the allegations of door-slamming or petty behaviour such as hiding or taking pens when signing on at the commencement of a shift. New staff were not told not to socialise with Mrs. Hurley. She was not excluded from or discouraged from participating in staff social events at Christmas or otherwise.
28. I accept Mrs. Hurley’s evidence that she was treated badly by her colleagues in the manner outlined by her in evidence. I do not accept the evidence given by her colleagues that this was not so. The high level of antagonism towards management, the language used in the petition and the unilateral stoppage in support of Mr. J are evidence of the creation and existence of the type of atmosphere calculated to produce the isolation and victimisation described by the plaintiff. I am satisfied that the descriptions given by her work colleagues of her being somewhat aloof and not engaging with them was a direct result of their attitude and conduct towards her which arose directly from the palpable anger at how Mr. J was thought to have been treated and her perceived close involvement in that incident. I am satisfied that she bore the brunt of the considerable anger and resentment which prevailed on the shop-floor for a considerable time in respect of this event. The matters referred to by Mrs Hurley in her evidence might individually appear to be inconsequential but an accumulation of petty daily humiliations and repeated spiteful or petty actions with a continuing social rejection or exclusion is the very essence of the bullying and harassment contemplated the legal definition set out below. Insofar as there is a conflict in the evidence on these matters I prefer the evidence of the plaintiff that she was subjected to unfriendly behaviour and social exclusion in the workplace in the mean and demeaning ways described by her over a sustained period.
29. Mrs. Hurley on her return to work on the 16th August, 2006 spoke to Mr. Ned Keane, Human Resource Manager about her difficulties with her colleagues. She says that she was advised to live with it and it would pass.
30. On the 23rd August, 2006 the Plaintiff attended the Occupational Health Office. She informed Nurse Hodgins that she had returned to work and was feeling much better. She had been absent for two weeks but was now coping well and felt that she did not require any further appointment with the occupational health department.
31. She was thereafter absent from work for periods which are recorded in the staff records as 26th July, 2006 to 4th August, 2006, and 28th December, 2006 to 5th January, 2007. These absences were attributed to the work incident and stress arising as a result of the incident but primarily her treatment thereafter. Matters deteriorated through September, October and November 2007 and she believed that her level of ostracisation increased during that period. Some nights she had no conversation with anybody at work. She spoke to Mr Harrington. She informed Mr. Keane in November that things were not improving. She felt he was somewhat dismissive and she was not offered any advice as to what she should do. In November/December 2006 the plaintiff stated that an anonymous letter was submitted to management suggesting that her shift times be changed. She believed this request was complied with and that her shift was altered on that basis. She felt increasing pressure up to Christmas. She was out of work from 28th December to 5th January 2007 and attended Dr. Fleming. She informed the doctor that she had taken ten days of work as she felt unable to cope with the stress in the working environment due to her isolation by her colleagues following the incident in July 2006. Dr. Fleming gave her a certificate to cover the ten days and advised her to return to discuss the situation if it did not improve. She was also advised to discuss the situation with her work supervisor. On return to work Mrs. Hurley resumed her duties.
32. On 23rd January, 2007 the occupational health records for An Post indicate that she had been referred to the section for work related stress. In December 2006 she complained that she felt “blamed” by her colleagues for Mr. J.’s suspension and some of the staff were ignoring her. She said she was invited to some but not all of the nights out at Christmas. She said she had friends at work and enjoyed her job. She was currently at work and felt she was coping well. She appeared relaxed and her mood was good. She was sleeping well. She felt she was “being harassed and bullied” at work. However, friends and management were very supportive. She was advised to contact her Welfare Officer about the harassment and bullying allegations and consider her options. She felt fit for work at the time. The court is satisfied that management was fully aware of the continuing tensions caused by Mr. J’s suspension and dismissal within the workforce at this time and the continuing isolation and stress to which Mrs Hurley was subjected by her co-workers as described by her in evidence and its effect on her health.
33. By letter dated 13th February, 2007 Mr. J. was informed that due to his unsatisfactory attendance pattern it was not intended to extend his contract beyond its date of expiration, 13th March, 2007. Mr. J. was dismissed on the basis of his “unsatisfactory attendance pattern”.
34. The court is satisfied that during the period February 2007 to September/October 2007 the Plaintiff was, as advised by management, attempting to deal with the situation which management believed would pass and improve. No efforts were made by management to engage with her predicament other than by hoping that matters would improve over time. No attempt was made to caution the workforce about Mrs Hurley’s treatment or advise that it was unacceptable to management or that persons engaged in such behaviour might be subject to discipline. An attempt was made in later correspondence to maintain that Mrs Hurley had never made a written complaint in accordance with the company’s Code identifying those who carried out the bullying and giving specific details of the occasions of same. This completely disregards the advice given to her by local management that this treatment would likely cease. She continued to abide by this advice throughout 2007 to no avail and to the detriment of her health. The court is satisfied that this advice was given in the knowledge of the very high level of unrest in the workforce concerning this issue. The Plaintiff was left to deal with her co-workers behaviour towards her on her own and without any effective support from management. She continued to work under these conditions until September/October 2007.
Health Issues
35. Prior to the symptoms of stress about which she complained in 2006 and early 2007 the plaintiff had not exhibited any significant physical or mental health symptoms. In October 2007 the plaintiff attended her general practitioner with a three week history of hip pain. This was worse after prolonged standing. She was prescribed anti-inflammatories and physiotherapy. On review on the 9th October the plaintiff also described a right shoulder and neck pain. This was her first complaint of these symptoms which suggested a soft tissue inflammation. X-rays of her hip and shoulder on 19th October were normal. The plaintiff was reviewed on the 5th November and indicated that the hip pain had settled. She had some right shoulder pain on abduction. Anti-inflammatories were continued and she was advised to continue with physiotherapy. On the 26th November, there was some improvement in respect of her shoulders. She had pins and needles down her right upper limbs suggestive of nerve root irritation. A consultation was arranged with the company doctor on the 27th November. It was anticipated that she would be able to return to work by Christmas 2007. On 13th December, she was again reviewed this time complaining of right handed pain perhaps secondary to overuse. She had right shoulder pain and reduction of abduction at the shoulder. She was referred to a consultant rheumatologist Dr. Mulcahy and also referred for a shoulder MRI scan which showed inflammation of the tendons. She was absent from work due to these symptoms between 28th September, 2007 and 7th January, 2008 as indicated the company records which attribute her absence to hip pain. There is no history of any trauma or incident that might explain the existence of these symptoms.
36. The Plaintiff was also seen by Nurse Hodgins of the Occupational Health section on 30th October, 2007. Her notes indicate that she was complaining of a painful right shoulder and hip. She was deemed unfit to work and referred for further review in November 2007. In addition, a report was furnished by Dr. Fleming to Dr. Frank O’Reilly the defendant’s Chief Medical Officer dated 7th November, 2007. It outlined her history to date and in particular the symptoms exhibited by the plaintiff in her right hip, shoulder and her neck discomfort.
37. Dr. O’Reilly saw the plaintiff on 28th November, 2007. He described in a report to Mr. Keane the present state of her symptoms. He suggested a further review with Nurse Hodgins in December. On review on 14th December by Nurse Hodgins the Plaintiff was deemed to be unfit for work and a further review was arranged with her in January 2008. On that date, she indicated to Nurse Hodgins that she felt fit to return to work on Tuesday 8th January. She advised that it would be prudent for the plaintiff to avoid heavy manual handling duties but the plaintiff herself indicated that she was fit for video coding, collecting packets and light work. It was requested that these restrictions remain in place until 1st February, 2008. The advice to maintain Ms. Hurley on restricted duty was renewed by Nurse Hodgins on 29th January. Dr. O’Reilly reviewed the plaintiff on 20th February. She indicated ongoing discomfort in her neck and shoulder and felt unfit for all work because of the discomfort in her neck despite reassurances that she would be provided with duties such as video coding only which would not put an undue load on her neck or shoulder girdle. She wished to have a further review with her specialist before returning to work.
38. A further review by Nurse Hodgins took place in February 2008 at which stage it was indicated that an additional review should be held on 1st April following receipt of a further medical report from her caring specialist. The plaintiff then failed to attend an appointment on 1st April, 2008 with Nurse Hodgins. A further appointment was arranged for the 10th April, but the plaintiff left a message on the 9th stating that she was unable to attend. However, following consultation with her she attended for review by Dr. O’Reilly on 23rd April. He advised her that she was fit to return to work in a limited capacity but she indicated that she would not be interested in doing so. It was however noted that a report from her specialist was awaited. No further review was advised by Dr. O’Reilly at that stage.
39. A report was furnished to Dr. O’Reilly from Dr. Brian Mulcahy, consultant physician and rheumatologist dated 28th April. It outlines the history of his involvement with Mrs. Hurley from 28th January 2008 and the treatment which he gave to her. He proposed further intensive physiotherapy. Importantly, in the penultimate paragraph of his report he noted that Mrs. Hurley had been the victim of an altercation at work and that since then she complained that approximately 75% of her work colleagues had been ignoring her and was finding this very stressful. He noted her mood has become very low and she is very anxious about returning to work. He concluded that it was most probable that the spasm in her neck was stress related.
40. Dr. Mulcahy also stated that an MRI scan of her right shoulder on 17th January 2008 showed a small amount of subacromial fluid with evidence of tendonopathy in the supra-spinatus and sub-scapularis tendons She had mild degenerative changes of the cervical spine which were normal for her age. By 16th September 2008 her shoulder symptoms had eased but she was complaining of a lot of neck pain and what he observed to be “pronounced spasm of her para-cervical muscles” but there was no history of injury to her cervical spine. Her mood was very low and she was most anxious about returning to work because she was being ignored by most of her colleagues. He referred her for psychiatric assessment and evaluation by Dr. Morgan a consultant psychiatrist.
41. Dr. O’Reilly on reviewing the plaintiff on 20th May noted in his report to An Post that:-
“In addition, Ms. Hurley feels today, and it is also stated quite clearly in a report from her treating doctor, that she appears to attribute part of her discomfort to an injury which she says she sustained in work a year and half ago.”
Dr. O’Reilly advised her that she was fit for limited duties and was encouraged to take up roles such as video coding. She was not inclined to do this though she had been assessed by him as fit to undertake it.
42. Mr. John Dandy, Human Resources Manager Mails Processing wrote to Mrs. Hurley on 22nd August indicating that, following a meeting with her on 31st July in Cork, it was proposed to hold a work place assessment to determine her operational capabilities having regard to her condition. She was advised that if following this assessment, the company was of the view that she was fit to return to work failure to resume work within a reasonable timeframe would have serious implications for her continued employment with An Post.
43. On 3rd September Dr. Fleming wrote to Mr. Dandy outlining in detail symptoms suffered by Mrs. Hurley and confirming that her consultant had certified that she was medically unfit for work, an opinion with which she agreed.
44. Following a workplace assessment on 17th September Dr. O’Reilly having regard to her continuing complaints and correspondence from her doctors suggested that a further consultation take place within a month. On 22nd October Dr. O’Reilly noted that the plaintiff was awaiting further investigation. She had no information as to whether she would be offered any significant treatment. She was of the strong belief that she may not be able to return to work unless she feels 100% fit. She was again advised that the nature of her condition was such that individuals may return to work despite some residual symptoms especially if the work is controlled and this would apply to video coding. He added:-
“However, additional today, she mentions a bullying concern she tells me that she raised with the local management in 2006. She indicates that she is not aware of the progress of this and as a result of this bullying she has some symptoms. She was not able to explain any of these in great detail today but indicates that her doctor has made a general referral to another specialist to explore these symptoms with her.”
He added that her concern and upset about this incident and that she was being blamed for the incident by other employees might be an obstacle for her return to work and might need to be explored separately while she recovers from her neck and arm pain. He suggested that “the status of her previous bullying concern should be assessed”. In addition, he awaited the outcome of her further testing to determine the duties to which she might be able to return.
45. Nurse Hodgins recorded on 21st October that the plaintiff stated that she had some symptoms in relation to a bullying complaint she made to Mr. Keane in 2006. It said that it affected her mentally mostly when she thinks about it and that she is being blamed for the incident.
46. The existence of the alleged bullying incident as a factor in her continued absence from work in late 2007 and 2008 is chronicled in the company records and correspondence received from Mrs. Hurley. On 20th June, 2008 a three page letter was sent to management outlining the symptoms which she said were attributable to the treatment which she received following the incident from her fellow employees. The letter stated in respect of the incident and its subsequent events:-
“During all of this I was out sick suffering from severe stress and terrified that [Mr. J.] would find out where I lived and come after me. While all of this was going on the unions were all in support of [Mr. J.] and I the victim was offered no support. [L. J.] was eventually fired and then all my troubles started.
On my return to work I was utterly ignored by 75% of the workforce and almost two years later the situation remains the same. Even though they have been told by Paula McNamara that I did nothing wrong, they still believe that I am responsible for [Mr. J.] losing his job at An Post.
I have tried so hard to overcome the ignoring, it was getting harder and harder to continue working in a job where I was being cut out of any gatherings, parties, lotto’s etc. and a lot of other things.
You may ask the question why did I not tell management? At no stage during the last two years have I ever been asked by management how I was getting on.
Now I find myself in situation where because of all the tension, worry and stress that I have been experiencing for the last number of months has taken its toll on me. I am now suffering from inflammation of the joints brought on (in my doctor Mr. Brian Mulcahy’s view) by severe stress.”
She adds that she could write “all day about various acts of bullying I have experienced” but states that she has outlined the whole story. She emphasised that the hardest thing was break-time when fellow employees sit on other seats available in the area and ignore her.
47. This letter was in response to a request from Mr. Keane in a telephone conversation in respect of the incident referred to by Dr. O’Reilly concerning bullying. She confirmed to Mr. Keane that she was referring to the incident with Mr. J. and the fact that her colleagues were not talking to her. He requested that she respond in writing and raise any issues that she had and she undertook to do so.
48. Thereafter on 26th November, 2008, four months later, Mr. John Dandy wrote to Mrs. Hurley in respect of the reference made by her to a number of ongoing symptoms referable to bullying in the workplace. He stated and acknowledged that this matter had been referred to at a meeting at the Airport Hotel in Cork on 31st July, 2008 and continued:-
“… you referred to this concern regarding your fellow workers and I informed you that there was no evidence to support your claim and that you should submit such concerns in writing. To date no such complaint has been received by the Company. As previously advised you should set out any formal complaint you have in this regard in writing and forward it to the Company through the appropriate channels as set out in the Company’s Dignity at Work Policy. This requires specific details of names and dates and any possible witnesses. The Company cannot investigate reports of a general nature; there must be a distinct basis with which to examine the facts. Your letter of 20th June, 2008 to Mr. Ned Keane, C.M.C., stated that you could “write all day” about various acts of bullying you have experienced since the single incidence involving a dismissed employee in August 2006 and that 75% of the workforce in the C.M.C. ignored you. However, the Company cannot examine complaints were there are no concrete examples given.”
She was then informed that there could be no progress on the matter in the absence of these details. If she wished to make a formal complaint she was obliged to provide details of any incidents of bullying she had encountered before an official inquiry could be undertaken by the Company.
49. By this time, it should be noted that an authorisation had already been obtained from the Personal Injury Assessment Board to bring proceedings in respect of a claim concerning ongoing psychological injuries against the defendant on 16th October, 2008. A personal injury summons issued on the 24th March, 2009. The plaintiff was requested to furnish the particulars sought by Mr. Dandy in order to pursue and address any complaint which she had by letter to her solicitors dated 5th February, 2009.
50. By the time proceedings issued, Dr. Mulcahy had reported on 10th January, 2009, that though he had suggested that her symptoms may have been caused by lifting heavy objects, on closer questioning, it came to light that she had been involved in the altercation (with Mr.J.) when she was pushing a trolley at work and the trolley was tugged by him. He was of the opinion that this incident brought on her initial symptoms. She may have injured her shoulder and neck at that stage but those injuries may have become the focal point of chronic persistent symptoms driven by a significant underlying functional component due to the interpersonal difficulties at work.
51. By letter dated 29th February, 2009, the plaintiff was informed by Mr. Dandy on behalf of An Post that since she had not communicated with the Chief Medical Officer’s office and cancelled an appointment to attend with him on 16th December, and did not forward further details of tests, the company would proceed to determine her fitness for work based on the information available to it. The letter stated that the company had no information that would indicate that she was permanently incapacitated and she was expected to resume her work in an appropriate capacity as soon as circumstances permit. The company was prepared to review her situation in two months time. Unless, however, she had resumed work within that period or there was a clear indication that she would be in a position to resume work in the immediate future, the company intended to consider the termination of her employment. This was based on her perceived inability to fulfil the terms of the contract of employment because of non-attendance at work. This was a final notice that this step would be taken. At the time of this letter, the plaintiff was noted to have been absent for a continuous period of twelve months since February 2008, and for a further period of three months in 2007.
52. A central feature of the plaintiff’s claim based on the evidence of Dr. Eugene Morgan, Consultant Psychiatrist, is that as a result of the incident in 2006 at her place of work, she suffered Post Traumatic Stress Disorder (PTSD). This shocking incident and her then limited symptoms were exacerbated by her treatment by her co-workers. Her recovery from PTSD is said to have been affected by her physical symptoms and ongoing conflict with employers, trade union and fellow workers. The termination of her employment had a severe effect upon her. Her prognosis was guarded and a full recovery was not to be expected. Dr. Morgan concluded that there could be relapses with severe symptoms at times. This report was dated 16th January, 2012. Dr. Morgan had been seeing Mrs. Hurley since late early 2008 following the referral by Dr. Mulcahy. An updated report on 21st July, 2016, suggested that there had been a gradual improvement in her mental state over the previous two and a half years. Dr. Morgan concluded that her PTSD was now at a moderate scale though it might recur in the future. His prognosis was favourable but guarded. She ceased her employment in 2008 and never returned. She remained stressed by her attendance. Her anxiety levels were increased and she had flashbacks, difficulties sleeping and recriminations about what had happened to her, feelings that she had been let down by her employer, trade union and fellow employees. He stated that many psychological symptoms have an overlay of physical symptoms. He considered that there was a connection between the spasms in her neck and the stress which she experienced. He considered that the original triggering incident was the incident in July 2006. “It starts the ball rolling”.
53. Mr. McQuillan, a surgeon who gave evidence in support of the defendant was of the opinion that there was no physical relationship between the incident as described in July 2006 and the symptoms manifested in 2016. He regarded the attributions of symptoms to stress at this remove to be somewhat implausible. Insofar as there is a conflict in the medical evidence in this regard I prefer and accept the evidence given by the treating doctors which provides the likely professional explanation and exposition of the chronology of her symptoms and treatment between 2006 and 2014 and the somewhat late conclusion as to the reason for the Plaintiff’s physical symptoms and continuing condition.
Statute of Limitations
54. It is submitted that the plaintiff’s claim is statute-barred. The date of the assault by Mr. J was 26th July 2006. She was out of work due to stress between 26th July 2006 and 15th August 2006. Since her doctor certified her as absent due to work incident stress, the plaintiff was aware that she had suffered an injury which was work related and had two years from that date to initiate proceedings. Two years and six months later she lodged an application with the Personal Injuries Assessment Board (PIAB).
55. Section 3(1) of the Statute of Limitations (Amendment) Act 1991 as amended by s.7(a) of the Civil Liability and Courts Act 2004 provides that:-
“An action [other than a fatal injuries action]….claiming damages in respect of personal injuries to a person caused by negligence…or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of [two] years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured”
56. Section 2(1) of the 1991 Act provides that the reference to “date of knowledge” is a reference to the date upon which the plaintiff first had knowledge of the following facts:
“(a) that the person alleged to have been injured had been injured,
(b) that the injury in question was significant,
(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
(d) the identity of the defendant, and
(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence nuisance or breach of duty is irrelevant”
57. The court has determined for the reasons set out below that the defendant is not liable for any damage or injury sustained in respect of any alleged breach of a duty of care or negligence in dealing with Mr. J. as an employee. Indeed the pleadings do not substantively address that issue though extensive submissions were made in relation to the matter. The plaintiff was, of course, aware of the assault upon her at the time it occurred but there is no evidence that she was aware of any of the facts related to the previous history of misbehaviour, aggressive behaviour towards her co-workers or management or truculence by Mr.J. and the manner in which this had been dealt with by management.
58. The plaintiff’s claim is in respect of the injuries sustained during the course of the bullying which she endured. I am satisfied that it is wholly unrealistic to tie the plaintiff’s date of knowledge in this case to the date of the assault. The behaviour of which she complains began on her return to work on the 15th August 2006. The damage inflicted upon her by her co-workers was incremental in its nature and effect.
It would be hugely surprising if PTSD due to such behaviour manifested itself the day after its first occurrence. The defendant’s submissions fail to take account of the insidious and continuous nature of the behaviour and its effect upon the victim. She was sent to Coventry which had a severe impact upon her health. She developed physical symptoms which were related to PTSD. The doctors treating her were actively seeking to understand these symptoms in the absence of a physical explanation such as a collision or other physical trauma and the test results obtained. PTSD was diagnosed and linked to her account of bullying and harassment in or about early 2008 when she was referred to a psychiatrist. She only then became aware that she had suffered a “significant injury” which was attributable to and caused by the bullying. While she suffered symptoms and had been absent from work for stress caused by her co-workers attitude towards her, the continuing nature of that behaviour, its incremental deleterious effects upon her health and the difficulties and delay in assessing her condition and making the diagnosis of PTSD as the source of her physical symptoms meant that she did not and could not have been aware that this behaviour had resulted in the “significant” injury which became the subject matter of these proceedings. This knowledge only became available firstly, when the symptoms manifested themselves, secondly, were diagnosed and thirdly, were attributed professionally to the behaviour about which she complains. The physical symptoms first emerged in September/October 2007. They were then investigated and PTSD was only investigated as their cause and diagnosed as such in early 2008.
59. The period of bullying continued from 15th August 2006 until 11th February 2008. The plaintiff submitted her application to PIAB on the 5th September 2008. The authorisation to proceed issued on 16th October, 2008. By the time the application to PIAB was made in excess of two years had passed since 15th August 2006 and had expired on 14th August 2008.
60. The making of an application to PIAB stops time-running under s.50 of the Personal Injuries Assessment Board Act 2003.The end of the extension period occurred on the 16th October 2008.
61. The court is satisfied that the applicant was unaware of the significant injury which she had sustained and that it was attributable to the bullying which was then on-going until she was referred to a consultant psychiatrist in early 2008. She attended Dr. Morgan who made the diagnosis. I am satisfied that it was that change in her knowledge and understanding of the serious damage which she had suffered that for the first time provided a basis for the initiation of these proceedings. It provides the effective “date of knowledge” for the purpose of the act. The court is therefore satisfied that the proceedings were issued well within a two year period of that date and are not statute barred
The duty of care
62. The initial incident in which the plaintiff was assaulted by Mr. J. occurred on 26th July, 2006. Section 8 of the Safety Health at Work Act, 2005 provides:
“(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk; …”
It was claimed in evidence and on her behalf that her employer having regard to Mr. J’s unsatisfactory history prior to the assault on 26th July, 2006, ought to have been dismissed or been disciplined so as to ensure that any repetition of his behaviour would not give rise to risk of damage or injury to any of his fellow employees, including the plaintiff in the future.
63. In Elmonten v. Nethercross Ltd and Max Usi [2014] IEHC 91 the second defendant who had been employed by the first defendant as a head chef had been dismissed by the first defendant’s general manager in a different complex. He was dismissed because he assaulted an under chef in his prior employment. The second defendant while employed by the first defendant entered the plaintiff’s office and assaulted him. The plaintiff was at the time the financial controller of the first defendant. Herbert J. considered whether the employer was vicariously liable for this assault. He also considered whether the plaintiff was entitled to succeed under s. 8 of the 2005 Act.
64. The court was asked to consider whether the defendant is vicariously liable for the assault on 26th July 2006 by applying the “close connection” test as set out by the Supreme Court in O’Keeffe v. Hickey [2009] 2 IR 302 at 378 in which Fennelly J. (Murray C.J. and Denham J. concurring) stated:
“[243] 62… I am satisfied that it is appropriate to adopt a test based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made. That test, as the cases have shown, has enabled liability to be imposed on the solicitor’s clerk defrauding the client (Lloyd v. Grace, Smith and Company [1912] 1 A.C. 716); the employee stealing the fur stole left in for cleaning (Morris v. C. W. Martin & Sons Ltd. [1966] 1 Q.B. 716) and the security officer facilitating thefts from the premises he was guarding (Johnson & Johnson (Ire.) Ltd. v. C.P. Security Ltd. [1985] I.R. 362). In each of these cases, the action of the servant was the very antithesis of what he was supposed to be doing. But that action was closely connected with the employment. In Delahunty v. South Eastern Health Board [2003] 4 IR 361, O’Higgins J., rightly in my view, held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.
[244] 63. The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J. [in Delahunty v. South Eastern Health Board [2003] 4 I.R.361] provides an excellent example of the practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 D.L.R. (4th) 45 the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.”
65. The question is said to arise in this case, as it did for Hebert J.in Elmonten whether the actions of Mr. J. were closely connected with his employment for the purpose of the test. The relevant factors include the nature of the employer’s business, whether the risk of the sort of incident which occurred arose because of the nature of that business and/or the nature of the duties, broadly defined, which the employee was engaged to perform at the time of the incident and whether the act could be said to be incidental to or a consequence of anything which the employee was employed to do and whether at the time of the incident the employee could reasonably be said to be acting however mistakenly or excessively in the interests of the employer or was simply pursuing some private end. The court should also consider whether he was expected or encouraged to act aggressively or whether the assault arose out of vengeance, spite or resentment or intemperate behaviour on the part of the employee and other similar factors. Herbert J. accepted that the assailant went to the plaintiff’s office in connection with his entitlements under the VHI Scheme applicable to employees. He was satisfied however that the attack which occurred was nothing more than a vicious attack motivated by some personal resentment which was sparked by an ungovernable temper. This was regarded as inconsistent with the interests of the employee and employer and had no close connection with any acts which fell within the scope of his employment as a head chef of the first defendant. Therefore the employer was not vicariously liable. Having considered the factors outlined by Herbert J. and the principles set by the Supreme Court in O’Keeffe the court is satisfied that the assault by Mr. J. on the plaintiff on the 26th July during the course of his employment while the plaintiff was engaging with him in a task on behalf of her employer. I am satisfied that Mr. J.’s assault on the plaintiff was in that way connected with the work which he was employed to do by the defendant or that absent the finding referred to below there was a basis upon which to conclude that the defendant was vicariously liable for the assault or its consequences on the application of the ‘close connection’ test.
66. The court is satisfied that there is a common law duty on an employer to take all reasonable precautions for the safety of its employees and not to expose them to a reasonably foreseeable risk of injury. The defendant must act as a reasonably careful and prudent employer would in the circumstances. As stated by Herbert J. in Elmonten s. 8 of the Safety Health and Welfare at Work Act, 2005 provides a somewhat more extensive duty on employers to provide and maintain a safe place of work and provide competent co-employees. The employer has a duty insofar as is reasonably practicable to manage work activities so that any improper conduct or behaviour likely to put the safety health or welfare of its employees at risk is addressed. Section 2(6) defines “reasonably practicable” as requiring that an employer should exercise all due care by putting in place the necessary protective and preventive measures “having identified the hazards and assessed the risks to safety and health likely to result in…injury to health in the place of work concerned” such that any further measures would be grossly disproportionate having regard to the unusual unforeseeable and exceptional nature of any circumstance or occurrence that may result in such injury. Herbert J. interpreted “improper conduct or behaviour” as including such matters as bullying, harassment, or other abuse or physical violence.
67. In Elmonten Herbert J. was satisfied that the evidence established that the first defendant through its general manager was aware the second defendant had on a previous occasion in a fit of temper caused a physical injury to a fellow employee in the course of their joint employment. He was satisfied that the manager knew or ought to have known that there was a very real risk not just a mere possibility, that this could occur again, if for any reason the second defendant’s temper became aroused and this exposed his fellow employees, including the plaintiff to risk of physical injury. He therefore was satisfied that it was reasonably foreseeable that the second defendant was likely to prove a source of danger to other employees because of his apparently ungovernable temper. The cause of the previous assault was not a personal animosity between the second defendant and a particular fellow employee who is no longer on the scene but because of the second defendant losing his temper “to an almost maniacal level with a co worker” over some dispute or perceived grievance in the course of their work. A real risk of a recurrence therefore remained. In those circumstances the learned judge held that the employer did not exercise reasonable care or put in place measures to prevent or protect against such an event.
68. In this case it is clear from the evidence adduced and from the evidence of Ms. Rigby Jones, an expert in human resource management, that Mr. J. had been the subject of five disciplinary issues in 2005, two for poor performance and three for ignoring or failing to abide by management’s instructions. He was advised on 17th June, 2005 that any repetition could without warning lead to his dismissal. He was also interviewed in June, 2006 concerning an incident with Ms. L. on 16th June. He said he had no recollection of this incident, refused to accept the complaint and was dismissive and rude to the interviewer. It was recommended to Mr. Keane that some form of disciplinary action be taken due to his behaviour when approached about this incident. Ms Rigby Jones was satisfied there was a clear and reasonable basis to dismiss Mr. J. summarily in respect of these incidents or at least to convene a meeting to discuss the series of issues and incidents which had arisen. I am satisfied that there was a clear failure by management in relation to these earlier incidents to investigate and deal with them appropriately. However, it is also clear that the incident with Mrs. Hurley on 26th July 2006 and Mr. J.’s aggression and truculence in that incident and in his dealings with management thereafter were of a much more serious nature than the previous transgressions. The court is not therefore satisfied that the employer was in breach of his ordinary common law duty of care or the statutory duty imposed by s. 8 of the 2005 Act. The previous incidents were not as serious as those that occurred on the 26th July. The plaintiff has failed to satisfy the court on the balance of probabilities that it should conclude that the defendants had by that stage lost control over Mr. J. as an employee or should have regarded him as an employee who ought not be allowed to associate with his fellow workers because he was a danger to them. That danger crystallised on the 26th July and in subsequent dealings with management. Action, however slowly and inadequate was taken thereafter to discipline him. This led ultimately to his dismissal though it is a peculiar aspect of his dismissal that the reasons advanced by the employer for taking that step did not relate to the violent incident on the 26th July and his subsequent behaviour towards management but to the earlier less serious incidents. Nevertheless, the court is not satisfied on the balance of probabilities that the defendant was vicariously liable for the assault carried by Mr. J. on the plaintiff and any injury sustained by her as a result thereof on the 26th July.
Bullying and harassment
69. Part 5 of the Code of Practice appended to the Industrial Relations Act, 1990 defines workplace bullying:
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
70. This definition was approved by the Supreme Court in Quigley v. Complex Tooling and Moulding [2009] 1 IR 349. The plaintiff must establish the following matters on the balance of probabilities if she is to succeed in her action based on workplace bullying:
(a) that the behaviour complained of by reference to an objective test establishes “that degree of calibrated inappropriateness and repetition [that] differentiates bullying from workplace stress or occupational stress” per Kearns P. in Glynn v. Minister for Justice, Equality and Law Reform [2014] IEHC 133;
(b) the conduct complained of must have been repeated and undermine the dignity of the employee at work (per Fennelly J. in Quigley v. Complex Tooling and Moulding).
(c) That the conduct is objectively to be considered as repeated inappropriate behaviour undermining the individual’s right to dignity at work; it does not have to be deliberate (per Irvine and Finlay Geoghegan JJ. in Ruffley v. Board of Management St. Annes School [2015] IECA 287). It is not dependent on the intention of the perpetrator or the perception of the victim. It depends in each case on the relationship and relative positions of the individuals and the full factual context.
(d) The conduct or actions must have taken place either at the workplace or in the course of employment;
(e) The plaintiff must have suffered an injury to his or her health as opposed to what might be described as ordinary occupational stress;
(f) That injury must be attributable to the conduct in the workplace or course of employment;
(g) The harm suffered by the employee must be reasonably foreseeable by the employer in all the circumstances (per Clarke J. in Maher v. Jabil Global Services Ltd [2005] IEHC 130). The harm suffered by the employee must have been reasonably foreseeable: this is dependent on what the employer knows about the individual employee and the indications of impending harm to health which must be of a nature that any reasonable employer would realise that he should do something about it;
(h) The employer must have failed to take 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 and the cost and practicability of preventing it and the justification of furthering the risk (per Berber v. Dunnes Stores [2009] ELR 61).
64. As noted by Kearns P. in Glynn v. Minister for Justice and Equality bullying involves a repeated course of action designed to humiliate and belittle the victim. The conduct must be intended to reduce the person’s sense of self worth.
“That said, bullying, workplace stress and occupational stress are all things which, conceptually at least, are quite different from each other, though on occasion they can overlap and coincide. Occupational stress is not actionable given that occupational stress is something which every employed person may experience at some stage of his or her working life and can occur for reasons quite distinct from and unrelated to bullying. Workplace stress on the other hand may be actionable if certain legal criteria are met. It can be the result of behaviour which falls far short of bullying. It can be the result of negligence where excessive demands are made of an employee or where complaints about shortcomings in the workplace go unheeded. It lacks however that degree of deliberateness which is the hallmark of bullying.
It follows that the first question that must be asked in every bullying case is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress.”
In Ruffley, Irvine J emphasised that the court must first determine whether the conduct complained of may objectively be considered to be “repeated inappropriate behaviour” and should then consider whether objectively it may reasonably be regarded as undermining the individual’s right to dignity at work.
65. The court in considering the issue of liability in this case has also adopted and applied the principles set out by Laffoy J. in McGrath v. Trintech Technologies Ltd [2005] 4 IR 382 at paras. 53 to 71 and the helpful guidelines adopted and approved by the learned judge set out in Hatton v. Sutherland [2002] EWCA Civ 76 [2002] ICR 612 and subsequently applied in Quigley v. Complex Tooling and Moulding Ltd by the Supreme Court (see also Jackson v Cahill & Ors (unreported High Court 6th July 2016, Moriarty J.)).
66. Dr. Morgan was satisfied that the assault on the 26th July 2006 was the triggering event for the development of PTSD in this case. He was however also satisfied that the physical symptoms of muscle spasm in the Plaintiff’s neck which were chronicled from 2007 were caused by the Plaintiff’s reaction to the stress under which she was placed at work by her co-workers. The stress caused by the subsequent events and incidents contributed to and caused the physical manifestations described. It is clear that Dr. Mulcahy strove to understand the shoulder injury in the context of tugging of the trolley at the time of the assault but that was not a matter that featured largely in the description of the incident at the time it occurred. It is clear that from an early stage Dr. Mulcahy was satisfied that he needed to explore reasons other than trauma for the physical symptoms of which the Plaintiff complained. Therefore he referred the plaintiff for psychiatric evaluation to Dr. Morgan. I am satisfied on the balance of probabilities that the neck spasm and symptoms described by the Plaintiff to Dr. Mulcahy and Dr. Morgan are the likely product of PTSD. In reaching this conclusion I take into account the absence of any trauma which might explain the symptoms and the satisfaction expressed that they have been found to be present on physical examination. I also accept Dr. Morgan’s evidence that PTSD may give rise to muscle spasms such as the neck spasms experienced by the Plaintiff. I am therefore satisfied that these symptoms arose as a result of PTSD arising from the Plaintiff’s treatment by her co-workers.
67. I am satisfied that the conduct of her co-workers towards her following her return was, on the application of an objective test, highly inappropriate repeated behaviour which must reasonably be regarded as undermining her right to dignity at work. They were adults and clearly knew what they were doing in the throes of a misguided but intense sense of grievance concerning the consequences for Mr J. of his assault on the Plaintiff and his overall behaviour. I accept the plaintiff’s evidence as to how she was treated on her return to work and the serious effect of this behaviour upon her well-being, her mental health and ultimately her ability to return to her employment as set out above and as recounted in evidence. She was subjected to debilitating and humiliating treatment on a daily basis of a petty and mean kind which had the accumulated effect of undermining her health and ability to return to work in the manner described. Her co-workers are primarily responsible for this. Her employer allowed it to continue unchecked.
68. I am satisfied that the defendant’s supervisors and managers on the ground in Cork were fully aware of the tensions created on the shop-floor to which I have previously referred. They were aware at an early stage that following her return to work she was subjected to the behaviour which she described. I accept her evidence in that regard and note the absence of any evidence refuting it from those in the local management team with whom she engaged on this issue. I accept that the support offered to her was minimal in dealing with a deteriorating situation. Management were facing a very angry work-force which had stopped work and circulated a petition with huge support for Mr. J. The plaintiff was simply left by her employer to ride out the storm in the hope that it would pass: it did not. I am satisfied that in advising her to do so the defendant failed to support, encourage or direct her to confront those engaged in this misbehaviour in the manner set out in the Code upon which they sought to rely in this case. The Code provides for a formal investigative process based on fair procedures to be applied upon receipt of a written complaint from an employee of bullying or harassment in the workplace. It set out a disciplinary regime that may be applied in respect of alleged wrongdoers preceded by a mediation process in which such matters may be resolved. I am satisfied that in this case no encouragement was given to the Plaintiff to abide by this procedure and she was directed down a different path by her employer for whatever reason which was completely ineffectual and damaging to her. She was left without the practical support and protection which she was entitled to expect and it was her employer’s duty to provide. In addition, the evidence of Ms Rigby Jones supports the proposition that such a procedure and active intervention by an employer is necessary in the workplace if the is to fulfil its duty of care and support for victims of bullying and harassment in the workplace. However, the employer knew that at the time but chose not to follow the scheme or encourage Mrs Hurley to proceed under it. In the circumstances of this case I am satisfied that the employer is liable for the bullying and harassment which she experienced from her co-workers in the course of her employment of which it was aware and failed to address in any meaningful way. The defendant was in breach of its common law duty of care to her as an employee and under s.8 of the 2005 Act and exposed the plaintiff to the damage and injury to her health which she suffered as a result. The damage which she suffered to her health was reasonably foreseeable by the employer as is evidenced by the existence of a Code which was effectively not invoked on management advice. I do not regard the belated recourse by management to the Code in July /August 2008 as an adequate response to the bullying and harassment of which they were clearly aware locally and had ignored and/or tolerated for a number of years. Its invocation in 2008 was too little and too late for Mrs Hurley.
69. There is a further issue which remains to be addressed concerning the plaintiff’s claim for special damages in respect of loss of earnings which is said by the defendant not to arise and is not pleaded and which I deferred until the issue of liability was determined. I will hear further submissions on how the court ought to address the remaining issues before assessing damages.
Hurley -v- An Post (Damages)
[2018] IEHC 166 (16 March 2018)
JUDGMENT of Mr. Justice McDermott delivered on the 16th day of March 2018
1. The plaintiff’s claim is for damages for negligence and breach of duty against her employer arising out of bullying by co-workers following an incident which occurred at her workplace on 26th July, 2006. The issue of liability has already been determined by the court in a judgment delivered on 6th October, 2017. This judgment addresses the damages to which the plaintiff is entitled as a result of the personal injuries, loss and damage caused to her by the defendants.
2. The main facts of the case are set out in the earlier judgment of the court. The plaintiff was born on 6th October, 1964. She is a married lady and has two children. She is 53 years old. The court in its judgment on liability was satisfied that the defendant employer was liable for the bullying and harassment which the plaintiff experienced from her co-workers in the course of her employment of which it was aware and failed to address in any meaningful way. The court found that the defendant was in breach of its common law duty of care to her as an employee and under s. 8 of the Safety Health and Welfare at Work Act, 2005 and exposed the plaintiff to damage and injury to her health which she suffered as a result. There are a number of issues that arose during the course of the hearing including the extent of the personal injuries suffered by the plaintiff, whether they were caused by the defendant and whether the plaintiff took steps to mitigate her losses. The court heard evidence over a number of days in relation to the personal injuries and loss of earnings allegedly suffered by the plaintiff.
Medical History
3. The plaintiff gave evidence of her medical history and the adverse effects on her health of the bullying which she experienced in the course of her employment. Expert evidence was called on both sides. The doctors who treated her were called to give evidence. Evidence was also adduced from medical experts called by the defendant.
4. The plaintiff had an extensive employment history from a very young age. From October, 1984 until October, 1998 she was employed by Apple. She was then made redundant. Subsequently she obtained employment with Buy ‘N Sell as a telesales operator on a part time basis from 6th October, 1998 until 2nd May, 2000. She left after her second pregnancy.
5. She applied for a part time position with An Post in 2003 and following an interview was recommended for employment on the 10th June, 2003. She was granted a temporary employment contract from 25th August, 2003 for a minimum period of seven months for 21.25 hours per week. This contract was subsequently renewed on 25th August, 2005 and 25th February, 2006 when it was renewed for a period of six months. She was subsequently granted a further contract as auxiliary postal sorter on the 25th August, 2006 for a further period of six months.
6. In evidence Mrs. Hurley stated that following the incident with her co-worker on the 26th July, 2006 she was off work between 26th July and 15th August, 2006. She attended her general practitioner, Dr. Deirdre Burns, on 8th August, 2006 who certified her as unfit to work for that period. Dr. Burns noted that the plaintiff had anxieties about going back to work as there was a “mixed feeling at work about [the] entire incident”. She was advised to return to discuss the situation with her doctor if matters did not improve. She was also encouraged to discuss the situation with her work supervisor.
7. The initial incident between the plaintiff and her co-worker on 26th July 2006 caused her great upset and she was unable to return to work for a period of two weeks. The court has already ruled that the employer is not liable for any injury loss and damage sustained by her as a result of that incident. Therefore, the assessment of damages relates to any personal injuries loss and damage caused to the plaintiff following her return to work in August 2006 and arising from the bullying and harassment which she suffered thereafter. The plaintiff must establish that she suffered personal injuries or any other loss on the balance of probabilities. The aetiology of the symptoms from which she suffered after the incident is somewhat complex and disputed by the parties.
8. Following the incident on 26th July the plaintiff went with her two daughters then aged seven and nine years to live for three weeks with her parents because she feared that her fellow worker might seek her or her family out. She was extremely nervous and fearful of him. She described how she was traumatised by the incident and by feedback which she was receiving concerning how her fellow workers viewed the incident. Even at that early stage she considered that she was becoming a focus of attention and felt under pressure because of the negative view taken by her co-workers of her involvement in the incident. The incident led to her co-worker’s suspension and he was dismissed in March 2007. Her husband also worked in the sorting office. She was worried for her safety because her co-worker shortly after the incident continued for a short period to attend at his work-place. He tried on one occasion to force his way in. He had to be prevented from entering the premises and escorted from it. However, she stated and I accept that she wished to return to work as normal as soon as possible.
9. Mrs. Hurley described the treatment to which she was subjected on her return to work which is set out in the earlier judgment of the court and which I fully accept. She felt ostracised and alone. She began to question herself and whether she had done something wrong. She was completely traumatised by her work situation within a short time of her return. There was very considerable workforce anger and agitation over her fellow worker’s treatment by management. Her workplace became a very unhappy place for her and she dreaded going in though she still attended. This continued until Christmas 2006. After Christmas she did not return to work because of her deep anxiety and upset.
10. In the meantime, she had made a number of complaints to members of the management staff but felt she did not have any support from them. She felt she was taking the whole burden of the situation on her own shoulders. She spoke with the company nurse, Nurse Hodgins, in January 2007 and explained matters to her. Nurse Hodgins was sympathetic to her and told her not to give in and to return to work and see how things were. She complained to Mr. Ned Keane on the 16th August, 2006 and Mr. Keane and the operations manager Mr. Harrington in September 2006. She spoke to Mr. McCarthy, a supervisor on the floor. She spoke to Ms. Karen Hassett in September 2006 a processing area manager. She complained to Mr. Keane three times in October 2006 and once in November 2006. On 28th December, 2006 she was out sick and did not return until 5th January, 2007. She attended her general practitioner Dr. Fleming during that time.
11. Dr. Fleming describes in her report of 10th September, 2008 that Ms. Hurley attended on 5th January, 2007. She described at that time how following her return to work in August 2006 she had felt isolated and ostracised by others at work. She had taken the previous ten days off work as she was unable to cope with the stress in the work environment. Dr. Fleming gave her a medical certificate to cover that ten day period and advised her to return to discuss the situation if it did not improve and to discuss the matter with her work supervisors.
12. As described above Mrs. Hurley spoke to Nurse Hodgins at this time. Mrs. Hurley was referred to Nurse Hodgins because of the certificate granted by Dr. Fleming for work related stress. Nurse Hodgins noted that the plaintiff had been absent in July 2006 for two weeks. In December 2006 she stated that she felt blamed for her colleague’s suspension and some of the staff were ignoring her. She had not been invited to some Christmas functions. She had returned to work and felt she was coping well. She appeared calm and relaxed. She was sleeping well but was “being harassed and bullied” at work. She stated that friends and management were very supportive. Under the heading Plan it was stated:-
“to contact welfare officer (contact details supplied) re her harassment and bullying allegation and discuss her options. She is fit for work at present.
M. Hodgins.
Management to follow normal procedure”
13. The plaintiff stated that between January and June 2007 she worked most days but took a number of days off. Her work attendance record indicates that she was absent for stress on the 5th and 10th July, 2007. However, I am satisfied that the severe pressure of the continuing bullying and harassment to which she was subjected during this period gave rise to the symptoms of stress, anxiety and depression later diagnosed by her treating psychiatrist.
14. The plaintiff took further sick leave on the 28th September, 2007 until the 7th January, 2008. Dr. Fleming notes that in October 2007 Mrs. Hurley presented with physical symptoms namely, a three week history of hip pain which was worse after prolonged standing. She diagnosed a possible bursitis at the hip joint. She was prescribed anti-inflammatories and directed to attend physiotherapy. On review on the 9th October Mrs. Hurley also complained of right shoulder and neck pain. This was consistent with soft tissue inflammation. X-ray on the 19th October revealed that her hip and shoulder were normal. On review on 5th November she stated the hip pain had settled. She continued to have right shoulder pain on abduction i.e. elevating the arm at the side of the body. She continued on anti-inflammatories and was advised to continue with physiotherapy. On 26th November there was a marked improvement and Mrs. Hurley could raise her shoulders equally on both sides. She was tender on the right anterior shoulder joint. She had pins and needles down her right upper limb suggestive of nerve root irritation. An appointment had been made to see the company doctor, Dr. O’Reilly on 27th November, 2007. Dr. Fleming expected that the plaintiff would be able to return to work by Christmas.
15. In the meantime, the plaintiff attended with Nurse Hodgins on 30th October, 2007 in relation to this absence from work. It was noted that she was now on Difene. She complained of pain radiating up and down her right arm to her right hand. She felt she had no strength in her right hand. She had three sessions with the physiotherapist of 20 minutes duration. Discomfort was eased by walking as she was more uncomfortable when seated. Pain awoke her when sleeping. She felt unable to open jars or do ironing but felt able to do light housework. She had difficulty in driving. It was accepted that she was unfit for work.
16. On 27th November, 2007 the plaintiff attended with Dr. O’Reilly, the company doctor. He noted on examination that she had a painful right shoulder. The pain was constant. She felt activity made it worse and pressure on her arm caused pain. She felt she could carry out activities but they were painful. She had been prescribed anti-inflammatories and physiotherapy once per week. Her husband was doing the heavy housework. She was still swimming. She did not feel she could return to work with the complaints which she still had with her arm. She was advised that she was fit for work and could be accommodated with breaks and light work duties. She felt the need to be pain free before returning for work.
17. Dr. Fleming reviewed Mrs. Hurley on 13th December, 2007. She was complaining of pain in her left wrist. Dr. Fleming thought that this was possibly secondary to overuse as she was not using her right hand so much. She had right shoulder pain and again reduction of abduction at the shoulder. She was referred at this stage to a consultant rheumatologist Dr. Brian Mulcahy. He referred her for a shoulder MRI which showed a tendonopathy or inflammation of the tendons.
18. Nurse Hodgins saw the plaintiff again on the 14th December. The plaintiff thought her condition had improved. She was complaining of discomfort in her shoulder radiating to the fingers of her right hand. This was intermittent. She was taking analgesics. She had discomfort in her left wrist the previous week. She noted that Mrs. Hurley had been referred to the consultant rheumatologist and was attending physiotherapy weekly and undertaking exercises at home. Her range of movements were approximately 50% and she did not feel fit to return to work at that stage. She was again reviewed on the 3rd January 2008. She reported that she was continuing to undertake light housework. She wanted to try and undertake a trial return period at work. Her certificate expired on the 7th January, 2008 and she felt fit for video coding. On review she was using a computer at home for approximately 25 minutes per day. Her difficulty with her right shoulder had cleared and there was no swelling and a good range of movement in both wrists. Her plan was to return to work at that stage avoiding heavy manual work.
19. Mrs. Hurley had a consultation with Dr. Mulcahy, a consultant rheumatologist for the first time on 28th January, 2008. He noted a history of shoulder discomfort which commenced two years previously when she was at work carrying heavy objects. It had been intermittently troublesome since. It became increasingly uncomfortable over the past number of months. In addition she was complaining of right hip discomfort which became very irritable in August 2007. She also noticed at that stage discomfort in her left wrist.
20. Dr. Mulcahy stated that clinically she had a right rotator cuff tendinopathy with impingement which he injected. She had inflammation of her combined tendon sheaths of her right hand with discomfort around her right greater trochanter. He injected her shoulder and then brought her into Shanakiel Hospital for two methylprednisolone infusions. She was then reviewed on 12th March, 2008. The shoulder hip and hand symptoms had settled down but her neck had become very stiff at the beginning of March 2008. He noted a markedly restricted range of movement of her neck with spasm of her para-cervical muscles. She had no previous history of neck injury. He placed her on steroids for a week and gave her an exercise programme for her neck. She was referred for an MRI scan of her neck. She was then reviewed by Dr. Mulcahy on 24th April, 2008. She remained symptomatic and matters were getting worse in that she was getting quite a lot of spasm in her neck. The findings on the scan were not in keeping with her clinical presentation. It was her inability to recover from the neck and shoulder symptoms having recovered from the other physical symptoms that caused Dr. Mulcahy concern and to investigate possible psychological or psychiatric causes for these continuing symptoms
21. Dr. Mulcahy questioned Mrs. Hurley further about her symptoms. She told him about the altercation at work with her fellow worker. She also informed him that since then approximately 75% of her work colleagues had been ignoring her and she was finding this very stressful. Her mood had become very low and she was very anxious about returning to work. Dr. Mulcahy concluded that it was most probable that the spasm in her neck was stress related. He recommended that she be brought into Shanakiel Hospital for intensive physical therapy and also referred her to a colleague Dr. Eugene Morgan, consultant psychiatrist to review her case.
22. Though Mrs. Hurley returned to work on 8th January, 2008, with the promise that she would be assigned light duties, she was obliged to take further sick leave on 11th February, 2008, due to stress and pain and did not return to work after that date. She was dismissed from her position on 15th July, 2011.
23. The plaintiff claimed that following her return to work in August 2006, there was a continuing resentment against her from her co-workers. It got worse until she finally left on sick leave February 2008. She tried hard to stay and continue in her job which she found very satisfying and rewarding but she felt she could not continue due to the bullying and harassment. There were some nights when nobody spoke to her for the whole night while working her shift. She would frequently cry after returning home from work and ultimately could not face returning to work. She and her family suffered a loss of income because of her absence from work. Her husband took up work as a part time taxi driver to make ends meet. They were obliged to operate one rather than two cars. This was a burden because they lived in the country. Her condition impinged very considerably on carrying out daily tasks and her family life.
24. From the time of her dismissal in July 2011 she claimed that she could not seek employment because of the pain in her neck and shoulder. She could not sustain the use of her right hand for very long. She tried to go back to work in July 2016. She took a part time position in the Mater Private Hospital in Cork. Her cousin had been working there for 30 years and she was offered temporary employment through an employment agency. She was working with her cousin who worked on the wards providing tea to the patients. She had three or four hours work, two or three days a week. Her cousin was aware of her neck and shoulder issues. However, she was then required to carry out work in another location in the hospital because of demands being made in a larger canteen. She continued to work in that job for six to seven weeks. She had a total net earning during that period of €400.00. She was very nervous about returning to any other form of employment. She continued to have pain in her neck and right arm. She tried to control the pain by taking Difene. Normally, she would lie down for half an hour to ease the pain.
25. The coding work in which she engaged at An Post involved some physical effort. She was required to continuously look at a computer screen to code illegible or partially illegible addresses on envelopes. She was required to process a set number of items per minute. Letters were processed rapidly. A break was then given for 20 minutes during which the worker was obliged to physically sort letter or postal packets as a break from coding.
26. The plaintiff described the physical limits to her working capacity in evidence. She said that she could do household tasks such as ironing but that this now took more time than heretofore. She could not do any heavy housework which was done by her husband. She had no confidence in daily interaction with others and she found it hard to converse with people or strangers. She felt that the pain in her neck and arm got worse when she was under stress. It never got better. The pain felt like something hot running up and down her arm constantly. They were both related in the sense that she suffered the neck pain at the same time as the pain in her arm. She also felt that the grip of her right hand was less than it was before 2006, when she had no problems with it. She now depended a lot on her left hand. She accepted that she had been on holidays to visit friends who were living in Dubai. Her daughter bought the flight tickets. They were there between December into January 2018. In summer 2017, they holidayed in Cancun travelling via Washington. In 2015, the family were in Orlando, Florida. She emphasised that she would have liked to have brought her daughters away on holiday during the period of her unemployment but this had not been possible. Things had improved in more recent years.
27. I accept the plaintiff’s evidence in this regard. The extent to which she and her family were unable to take holidays during a period of recession and difficulty following the incident in 2006 passed and matters improved because of the general improvement in their financial situation due to improving general economic circumstances and the fact that her husband was engaged in two jobs. Some of the cost of the more recent trips were funded as a present from her daughters.
Previous Symptoms of Anxiety and Depression
28. The plaintiff’s previous employment history and her alleged unwillingness to return to work following certified periods of sickness was the subject of criticism and scrutiny under cross examination. There was considerable emphasis on the course of her two pregnancies with her daughters some twenty years ago and subsequent events. Ms. Hurley’s first daughter, Holly, was born on 24th November, 1997. She accepted that she had post-natal psychological difficulties. She returned to work in April/May 1998. Her maternity leave expired in March 1998. Her doctor noted her reluctance to return to work at that stage: she felt she was not ready. She suffered stress and anxiety: nevertheless, she returned to work approximately one month later. In June 1998 Mrs. Hurley became pregnant but suffered a miscarriage in October 1998. She accepted a redundancy package from Apple Computers in October 1998. Within four weeks, she had obtained a job with Buy N Sell which lasted until April 2000, when she resigned from her job. Shortly afterwards the company closed down. Her younger daughter was born on 13th December, 1999. She was confined to hospital for a period of nineteen weeks in advance of that birth because of a serious complication. The child was born by caesarean section. Mrs. Hurley remained in hospital for a number of weeks following the birth. The birth was premature and the baby had serious health difficulties. Understandably, Mrs. Hurley felt the need to be with her, was deeply concerned about her baby and did not feel well herself. She again suffered from stress related issues. It had been a very difficult pregnancy and her daughter’s health issues and needs in the subsequent months dominated family life.
29. On the 7th April 2000 her then doctor, Dr. Burns indicated that she could go back to work. The plaintiff stated that she did not feel well enough to do so due to anxiety and stress issues. It was noted that she was advised to start work and had stopped taking seroxat, a medication to assist her with stress and anxiety symptoms.
30. She did not return to Buy N Sell prior to its closing. She was out of work thereafter from April 2000 until she was employed by An Post on 25th August 2003. In the meantime Mrs Hurley received social welfare payments, a form of illness benefit. She attended her doctor in September and November 2000 and last attended Dr. Burns in April 2001. In February 2003 she was found capable of work following an independent medical assessment and her payments were stopped in March 2003. An appeal against this finding was unsuccessful.
31. Mrs. Hurley did not consider that she had long term psychological problems at the time she joined An Post. She had no health issues up to the period of her pregnancies. She maintains and I accept that her history up to that time was one of continuous employment for a period of sixteen years with Apple and Buy ’N Sell. This was interrupted by the difficulties surrounding her pregnancies and the fact that her younger child was a very sick baby. This caused her a great deal of upset which resolved.
32. The defendant alleges that Mrs. Hurley “withheld” her post natal depression from various medical experts by whom she was interviewed in the course of these proceedings and from her own doctors. It was said to be particularly relevant that she deliberately withheld a “history of depressive illness”. The defendants claim that any depression or anxiety related illness from which she suffered pre-existed her difficulties in An Post and were relevant to any medical review of her symptoms or conclusion that she suffered PTSD as a result thereof. It was denied that she suffered from PTSD but it was also claimed that if she suffered such psychological or psychiatric illness or symptoms this was not caused or exacerbated by her time in An Post but pre-existed her employment with An Post or the incident in July 2006.
33. It was acknowledged by the plaintiff in replies to particulars that she suffered from anxiety and psychological issues following the births of her daughters and that her treatment primarily consisted of antidepressants. The records do not indicate that she was, at any stage, referred to a consultant psychiatrist in relation to these issues nor was she diagnosed with clinical depression. However, she was prescribed seroxat. A great deal was made of the fact that she did not tell a number of doctors about this later on. She said that all of the doctors would have been aware of the difficulties from which she suffered around her pregnancies and the difficult time in life she had with the children in the early years. She said she had completely recovered and had no further problems arising from those issues. She never considered that she had been suffering from a psychiatric illness as a result. I am satisfied that the plaintiff did not consider her condition in that way and that she had as a matter of probability put it behind her when seeking work in August 2003. It is also clear that her doctor was urging her to return to work in April 2000 as she was capable for work at that time a conclusion also reached following independent medical assessment by the Department of Social Protection. There is nothing in her medical history to suggest any symptoms of that kind between 2003 and the incident with her co-worker in 2006. She was clearly considered to be an employee who was in good standing who attended as required and discharged her duties competently and willingly. Her contract was renewed on a number of occasions and there is little doubt that had the incident and the ensuing events not occurred she would have remained happily in her position. I am satisfied that she enjoyed and was happy in her work and had no intention of giving it up. There is no suggestion in her work attendance or company records that she suffered any such symptoms during this period.
Dr. Morgan
34. Mrs. Hurley was referred to Dr. Eugene Morgan, Consultant Psychiatrist, and was first seen by him in January 2008. In a report dated 16th January, 2012, he described her condition as follows:-
“In July 2006, she was injured when a fellow worker allegedly threw a package into a trolley roughly and there was a violent confrontation where she was extremely anxious and fearful for her life.
She sustained multiple injuries and was treated by her GP and in time referred to Dr. Mulcahy with neck and shoulder symptoms with ongoing symptoms. Her employer did not offer any counselling and a high profile publicity occurred about disciplinary action on assailant.
She returned to work in 2007 (sic) for five weeks and was shunned by her colleagues who blamed her for dismissal of alleged assailant. She was not welcome at social functions. She was not supported by her trade union.
She was distressed by her physical symptoms and continuous pain which limited her lifestyle and inability to drive her children to social outings in particular riding lessons. She could with difficulty do school runs. She had anxiety constantly. She could not accept her treatment by employer and her trade union. She could see no future. Mention of Little Island caused anxiety. She had flashbacks and night terrors. Insomnia was severe. She could not rest and was fearful of future for herself and her family. She relived the event over and over again. She constantly checked all facets of her life. Her husband who was supportive relates a personality change. Married life is affected.
She was treated by antidepressants and supportive psychotherapy with limited results and remains symptomatic. She found it hard to get any reassurance. Dismissal from work had effect of increase in symptomology. A car accident in July 2010 had minimal effect on her mental state.
In summary, this lady has Post Traumatic Stress Disorder following an incident in 2006 at her workplace. The incident caused her to feel her life was in danger. Her progress for PTSD was affected by her physical symptoms and ongoing conflict with employers, trade union and fellow workers. Her dismissal has had a severe effect. Her prognosis is guarded and full recovery may not be expected with relapses with severe symptoms at times.”
35. Dr. Morgan prepared a further report following an interview on 20th July, 2016 with the plaintiff. She reported a gradual improvement in her mental state over two and a half years. She had reduced her medication and took an anxiolytic for severe anxiety on isolated occasions. Her husband reported an improvement but not to pre-accident level. He noted that her sleep had improved but she awoke with physical skeletal pain. She suffered severe symptoms of anxiety when dealing with her legal affairs. He noted the presence of features indicative of obsession. She hoped to return to the workforce by engaging in a course for people who had psychiatric illness. He was at that time of the opinion that the PTSD was at a moderate scale. He concluded that she might suffer severe recurrences in the future. The plaintiff’s prognosis was favourable but guarded in the light of her partial recovery. He had concerns about the effect of her mental symptoms over a long period on her physical health in the future.
36. In a further report for the plaintiff’s solicitors dated 20th December, 2017, Dr. Morgan reported that her condition of PTSD had dramatically dis-improved over the previous few months and she found it difficult to engage in everyday life, with her lawyers and family matters. She had early and late insomnia, was irritable with anxiety and suffered panic attacks. She reported flashbacks to events that occurred in the post office and had extreme anger towards An Post. She had guilt regarding the effect of her injuries on her family and was conscious of the loss of quality of family time over the years as a result of being ill. Dr. Morgan maintained his diagnosis of PTSD. He concluded that she would be likely symptomatic for the rest of her life but at a moderate level when the present acute exacerbation was over. She had by this time been discharged by An Post. However, he was asked to comment in the report about the possibility of her returning to work with An Post. He concluded that her anxiety levels would be too high and he doubted if she could give good and sufficient service. He also concluded that her physical health would suffer in the short term due to stress. In evidence, he indicated that this could lead to possible stroke or cancer or myocardial infraction. He emphasised that this was a possibility rather than a probability.
37. Dr. Fleming stated that following the plaintiff’s initial attendance with her for stress and anxiety following the incident of 26th July, 2006 she subsequently attended with similar symptoms related to her work difficulties. On 6th May, 2008 she noted that the plaintiff was very stressed because of the situation at work at that time. There had been no stress related attendance in the interim. By then she had been referred to Dr. Morgan. On 23rd June, 2008 she attended Dr. Fleming with ongoing physical symptoms of right sided neck and shoulder pain which had been treated with injections by Dr. Mulcahy. Dr. Fleming discussed the psychological impact of pain perception with Mrs. Hurley who felt that she could differentiate work related stress from her physical symptoms. On 10th September, 2008 the plaintiff reported that she was feeling a little depressed as a result of ongoing physical symptoms of right shoulder neck pain which had resolved.
38. Dr. Fleming was questioned at length about the plaintiff’s attendance with her over the years and in particular the patient’s presentation with symptoms of anxiety. Dr. Mulcahy informed her in a letter in September, 2008 that he had referred her on to Dr. Morgan because of her stressed condition. Dr. Morgan contacted Dr. Fleming on 5th November, 2008. He made a recommendation that she be prescribed Cymbalta, an anti-depressant. Up to that point she had not seen the necessity to refer Mrs. Hurley to a psychiatrist or advise antidepressants or counselling. On 11th November, 2008 she discussed an antidepressant medication programme with the plaintiff. If necessary incremental increases in doses would be required. She was started on a low dose which would be reviewed within a month. On that occasion she prescribed Cymbalta and anti-inflammatory medication.
39. On 20th January, 2009 Dr. Fleming noted that the plaintiff attended and her husband indicated that she had improved on Cymbalta and was willing to restart it. This suggested that she had stopped taking the medication between November 2008 and January 2009 unknown to Dr. Fleming. She wrote a new prescription for Cymbalta and gave it to the plaintiff. Dr. Fleming accepted that during the period 2008 to 2012 the plaintiff’s adherence to the anti-depressant regime was sporadic. The patient periodically ceased taking the medication without telling Dr. Fleming. She noted in January 2010 that the plaintiff was only partially in compliance with taking her antidepressant medication. The doctor was satisfied at that stage that this was not likely to have been a physical reaction to the drug because she did not change the prescribed drug when renewing prescriptions.
40. On 26th March, 2009 the plaintiff attended Dr. Fleming with a ten day history of right wrist pain, sleep disturbance and neck spasm which had been previously noted by Dr. Mulcahy in April, 2008.
41. Thereafter, there were no further attendances with Dr. Fleming between June, 2009 and January, 2010. She was at that time attending Dr. Mulcahy for ongoing pain management of her symptoms and Dr. Fleming was not surprised that there were not more frequent attendances with her during that time. She was also attending Dr. Morgan during this period.
42. Dr. Mulcahy by this stage had been involved in treating the plaintiff since 28th January, 2008. As already outlined, when examined at that time the plaintiff showed signs of right rotator cuff tendinopathy with impingement. She had discomfort around her right greater trochanter. Her shoulder was injected with steroids and she was brought into Shanakiel Hospital for steroid infusions. She was referred for an MRI scan of the right shoulder which was performed on 17th January, 2008 and this showed a small amount of subacromial fluid with evidence of tendinopathy in the supra-spinatus and sub-scapularis tendons. She had a follow-up MRI scan of her neck on 23rd March, 2008 which showed mild degenerative disease of the cervical spine. She was reviewed on 16th September, 2008. The shoulder symptoms had eased but she was complaining of quite a lot of neck pain and on several occasions he noticed “pronounced spasm of her para-cervical muscles”. He noted that her mood had become very low and she was most anxious about returning to work because of being ignored by co-workers. In that context he referred her to Dr. Morgan. There had been no history of cervical injury and coupled with the onset of low mood and history of soured relations at work he was of the opinion that her persistent symptoms were stress related. He believed that if she did return to work she would remain symptomatic and her neck pain would most probably get worse: she would be at risk of developing chronic widespread pain syndrome.
43. In the letter of 10th January, 2009 to the plaintiff’s solicitors Dr. Mulcahy indicated that on 28th January, 2008 he had been searching for a trigger for her symptoms which may have been caused by lifting heavy objects. He then became aware of the altercation involving a colleague and a suggestion that a trolley had been pushed or tugged while she was pushing it. He believed at the time that this incident brought on the initial physical symptoms. At that stage he considered that both her shoulder and neck injuries first arose and may have become the focal point of her chronic persistent symptoms “driven by[a] significant underlying functional component due to interpersonal difficulties at work”. This is the background against which Dr. Morgan was retained and held his initial consultation which resulted in the direction of antidepressant medication and his diagnosis that she was suffering from PTSD in November, 2008. A great deal of the evidence has been directed towards the issue of whether the neck and shoulder symptoms of which Mrs Hurley complains are a result of stress, anxiety and depression occasioned by the bullying and harassment experienced by her rather than a physical deterioration which is entirely unrelated to that experience. A number of medical witnesses called on behalf of the defendant addressed the issue of whether there may be a link between the physical neck and shoulder symptoms exhibited by the plaintiff and the symptoms of stress anxiety and depression of which she also complained.
Professor Kane
44. Professor Kane, a consultant rheumatologist and clinical professor of rheumatology at Trinity College Dublin examined the plaintiff in December 2017. The only residual area of pain that was identified to him was around the neck and shoulder. She had moderate restriction of movement in those areas. There was no muscle spasm. Her movements were normal. There was no muscle wasting in particular on the right as opposed to the left side suggestive of favouring the use of her left arm over the right. She had a slight reduction in hand grip. He did not agree with an assessment made by Mr. Leonard (an occupational therapist) that her right wrist exhibited only twenty per cent grip strength. He concluded that her main problem was due to persistent symptoms from a right supraspinatus tendinopathy associated with right sided neck pain.
45. Professor Kane was satisfied that the plaintiff suffered from three problems which developed at around the same time. She suffered left hip tendonitis – an inflammation of the tendon around the hip treated by the avoidance of strain and analgesia. She suffered wrist tendonitis which also resolved. She suffered neck and shoulder pain which did not resolve. This condition was caused by the fraying of the lifting tendon in the left shoulder. This was identified on MRI scan as having low level inflammation that led to pain. The patient did not use this area. She subsequently developed muscular pain around the neck as a result. The MRI scan showed a disc degeneration in the neck which may also have disposed someone to develop this pain. It was not unusual for somebody to hold the shoulder in a protective way and engage the muscle continuously which would cause a lot of pain around the right side of the neck muscle. He considered that this condition responds to conservative therapy over time namely physiotherapy, avoidance of strain and medication. Professor Kane accepted that stress and anxiety contributed to the plaintiff’s symptoms. Thus a small pain may seem much greater if one is in a stressful situation. In addition one might if under stress focus on musculoskeletal symptoms because these are easier to communicate societally than communicating stress or anxiety. Her pain response may have been accentuated by her stress but the neck and shoulder pain were not caused by the stress itself. However, Professor Kane also accepted that she continued to suffer neck and shoulder pain notwithstanding the resolution of the two other conditions. He also accepted that stress could influence the outcome of physical conditions and may overamplify the pain or symptoms exhibited and get in the way of recovery. He stated that a higher level of stress might cause an amplification of pain sensation. He was satisfied to defer to psychiatric opinion on the relevance of PTSD in the plaintiff’s case. He could not discount the role of stress in her symptoms. He concluded that while the cause of the original symptoms was unlikely to be stress, the persistence of symptoms might be stress related or due to a developing chronic problem that would have arisen in any event. He accepted that if somebody was in an acutely stressful event it could cause any number of symptoms, including muscle spasm, and if a person suffered from PTSD one could relate it to a number of well-described sequelae but he deferred to psychiatric opinion in that regard.
Treatment by Dr. Morgan
46. Mrs. Hurley had nine visits with Dr. Morgan between 2008 and 2012. She did not attend with him between 2012 until 2016 when she attended for the purpose of the preparation of a report in the course of these proceedings. She attended Ms. Moore Groarke a Consultant Psychologist over eight visits between 2012 to 2014.
47. Dr. Morgan, like Dr. Fleming, was of the view that in 2008 and into 2009 her treatment was led by Dr. Mulcahy in respect of physical symptoms. He accepted that it was somewhat unusual that stress was not a focal point of her complaints during that period. His initial diagnosis was made on the basis of her history that she was suffering from anxiety consistently since the date of the incident. The plaintiff had informed him that this was so. His report indicated that she was out of work for a period from July, 2006 to September, 2007 which he acknowledged was incorrect. When interviewed she complained of constant anxiety and flash-backs to the incident involving her co-worker. She suffered night terrors and woke up quite distressed. He indicated that people who suffered from post traumatic stress wake up quite upset; sometimes their dreams are not recalled but they have a very broken sleep known as night terrors. These were recurring all the time. He hoped that the Cymbalta would improve her condition and alleviate the severity of her symptoms thereby providing a better prognosis for her condition. He hoped she would return to work. She was treated with antidepressants and supportive psychotherapy by Dr. Morgan. She would address the issues which caused her symptoms and he would give general support and try to decrease anxiety by encouraging her not to dwell on the events that happened and general life advice. He saw her on a number of occasions in this regard. He was not aware that she had stopped taking the antidepressants.
48. Dr. Morgan did not refer Mrs Hurley to a psychotherapist which he often did in such cases. He stated that one had to reach a certain level of recovery before benefiting from more intensive psychotherapy. If a patient suffers from anxiety type symptoms they would not be able to cooperate with that treatment. The depression symptoms had to be relieved before the psychotherapy could be directed. However that stage was not reached with the plaintiff because she did not attend him after 2012. He provided elements of psychotherapy between 2008 and 2012. She was quite distressed during this period to an extent that he described as moderate to severe.
49. He diagnosed post traumatic disorder at a very early stage in his engagement with the plaintiff and therefore directed antidepressants as the appropriate orthodox treatment and medication. He saw her within six weeks of her first visit in order to adjust the dose of antidepressant to get it to the optimum level. He occasionally gave her a prescription but she was attending her own general practitioner who was aware of the medication that she was on. He became aware for the first time during the hearing and listening to the evidence that the plaintiff had only taken her antidepressant medication sporadically. However, he became aware that she had stopped taking antidepressants when he spoke to her in 2016. Had she informed him of this earlier he would have advised her to continue taking them.
50. It appears on the evidence that the first prescription for antidepressants given by Dr. Fleming on Dr. Morgan’s instruction was on 5th November, 2008 for Cymbalta. In January, 2009 the plaintiff advised that she had stopped taking Cymbalta but was willing to restart. She continued to take it sporadically until January, 2010 when she attended Dr. Fleming complaining of multiple issues but informed her that she was only partially compliant with the medication.
51. In May, 2012 the plaintiff informed Dr. Fleming that she had stopped taking Cymbalta but did so without referring back to her. Dr. Fleming re-prescribed the drug. This was some four to five months after Dr. Morgan’s first report.
52. Dr. Morgan noted that many patients once they think they are improving decide that they do not want to continue with the medication. This is a very frequent occurrence. However, patients are instructed that should they wish to discontinue medication they should do so gradually over a short length of time and if they have side effects to approach their general practitioner. If the patient stops taking the medication symptoms of depression will recur and they will suffer from anxiety and muscular pain. This would likely be short term. If antidepressants are to be effective they need to be taken continuously and regularly every single day and once established this should be continued for at least one or two years. Dr. Morgan stated that the vast number of cases will spontaneously remit in about one or two years. Generally speaking patients stop taking medication when they feel better. He was hoping for a good response from the plaintiff and that she would recover within two years or less. He was surprised that her symptoms had not resolved within that period because in her case he had been very hopeful for a recovery.
53. In July 2016 the plaintiff reported a gradual improvement in her condition over the previous two and a half years. She claimed to have reduced her medication. However, by 2017 symptoms were reported to be more severe.
Dr. Mohan
54. Dr. Damien Mohan, consultant forensic psychiatrist, was retained on behalf of the defendant to provide a psychiatric report on the plaintiff. The plaintiff attended another psychiatrist for the defence in advance of her attendance with Dr. Mohan. Dr. Mohan saw Mrs Hurley once shortly before the hearing. He produced a very lengthy and detailed report for the defendant. He outlined his interpretation of some of the documentation and other material in the case. He outlined her history and also his engagement with her.
55. Dr. Mohan set out some of the plaintiff’s pre-employment medical history in the report of Dr. Burns dated 31st January, 2014. In particular he emphasised that following the birth of the plaintiff’s first child she had post-natal difficulties “physically and psychology”. She had been certified unfit for work after maternity leave in March 1998. He then noted the history of her miscarriage. He stated that following the birth of her second child she then presented with symptoms of anxiety and stress (as already referred to). She was certified unfit to return to work at that time. Though reviewed after one month and deemed fit to return, she felt she was unfit to do so. Dr. Burns at that stage considered the possibility of post-natal depression and prescribed an antidepressant medication. The doctor recorded that when further reviewed in July 2000 the plaintiff felt subjectively unable to return to work. She continued to see her and had notes for September and November 2000 and into 2001 at which stage she still suffered stress and anxiety and difficulty with life stresses.
56. Dr. Mohan considered Dr. Mulcahy’s opinion in his report of 3rd November, 2008 in which he states that the plaintiff’s persistent physical symptoms were stress related. It will be recalled that when taking sick leave between 28th September, 2007 and 7th January, 2008 the plaintiff complained of hip pain and right shoulder pain. Dr. Mulcahy had concluded that the plaintiff was suffering from a right rotator cuff tendinopathy with impingement and her shoulder was injected. He noted inflammation of her combined tendon sheaths of her right hand with discomfort around her greater trochanter. She was taken into Shanakiel Hospital for two steroid infusions. Dr. Mohan expressed surprise with the conclusion reached that the persistence of her symptoms was stress related in the light of the physical treatment given for her condition. In particular Dr. Mohan stated that there was no psychiatric evidence to support the conclusion reached by Dr. Mulcahy that her shoulder and neck injuries in January 2009 may have become the focal point of her chronic persistent symptoms driven by a significant underlying functional component due to interpersonal difficulties at work. Professor Kane however appears to accept to an extent greater than Dr. Mohan that stress may have a very significant role in the plaintiff’s recovery.
57. Dr. Mohan also disagreed with Dr. Morgan’s conclusion that Mrs. Hurley was suffering from Post-Traumatic Stress Disorder. He noted that interpersonal conflict and emotional distress characterises most forms of harassment but do not reach the magnitude of a traumatic stressor that causes PTSD. In particular DSM-IV Criteria for Post-Traumatic Stress Disorder which provided the diagnostic tool to assist psychiatrists state:-
“Stressor A. The person has been exposed to a traumatic event in which both of the following have been present:
(1) The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
(2) The person’s response involved intense fear, helplessness, or horror.
Clause B. The traumatic event is persistently re-experienced in one (or more) of the following ways:
(1) Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions.
(2) Recurrent distressing dreams of the event. …
(3) Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flash-back episodes, including those that occur upon awakening or intoxicated). …
(5) Physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.”
58. In Dr. Mohan’s opinion, the plaintiff had a recurrent mixed anxiety depressive disorder, characterised by insomnia, loss of confidence, lack of self-esteem, self-doubt, low mood and a heightened sense of anxiety. She was commenced on antidepressant medication by Dr. Morgan and had made a good response to same. He was satisfied that she was not clinically depressed when he saw her and that given the absence of any attendance for treatment for a considerable period with Dr. Morgan or any other professional her symptoms had improved. However he noted that at the time of interview she continued to have symptoms of anxiety.
59. Dr. Mohan also concluded that the plaintiff had deliberately withheld details of her past psychiatric history (essentially her post-natal symptoms) from Dr. Gillian Moore Groarke ,consultant psychologist. The plaintiff indicated to her that she had no prior psychological or psychiatric history prior to the incident. He also concluded that at interview with him the plaintiff chose not to disclose details of what he termed her extensive past history of mental health problems and medically certified leave from work which predated 2003.
60. Dr. Mohan also concluded that in moving to her mother’s home for three weeks after the incident with her co-worker in July 2006 she displayed elements of a pre-existing underlying psychological vulnerability. I am satisfied on the evidence of her co-worker’s frightening, threatening and abusive behaviour prior to the incident and immediately subsequent to it that the plaintiff’s concerns as a young mother left at home with two very young children on her own in the wake of such an experience and in the knowledge that he was still behaving in a violent and frightening manner in seeking to attend at his workplace were reasonable and entirely rational: going to her mother’s house nearby for a period was quite sensible.
61. It is also clear from the evidence that she exhibited no symptoms of depression or anxiety for which she required treatment between 2003 and 2006.
62. The plaintiff’s response to what were characterised by Dr. Mohan and counsel for the defendant as “deliberate” omissions of her previous medical history was that she had never thought about the anxiety and stress subsequent to the birth of her children for a “very very long time … only when you … started bringing it up in this, I have never thought about it. It was a long long time ago it is a part of my life that is gone, I have recovered from it completely. I don’t think of it. … It was a baby pregnancy related incident, it was that time of my life, it is over, it is 20 years/18 years ago so it doesn’t affect me.” She had been working very happily in An Post for three years by the time of the incident. She rejected the proposition that she deliberately withheld that information from anybody. As accepted by the defendant and Dr. Mohan it was referenced in the replies to particulars. I am entirely satisfied that in not focusing on this history and relaying it to doctors over the years, the plaintiff was not deliberately intending to mislead them.
63. I also reject Dr. Mohan’s further criticism that she was vague in addressing a possible psychological component to a claim which she brought and settled arising out of a road traffic accident on the 5th July, 2010. It was clarified to the court that the claim was settled on the basis of compensation for a physical injury arising out of the collision. There was no psychological or psychiatric component to her claim. I also reject the attempt to characterise the plaintiff as a person who has intentionally advanced false or exaggerated physical or psychological symptoms motivated by financial compensation as advanced as a possibility by Dr. Mohan.
64. It is clear that Dr. Mohan, as set out paras. 25.23 to 25.26 of his report, was satisfied that Mrs. Hurley’s depression and anxiety following the verbal altercation in the work place was a reactivation of a pre-existing disorder rather than a new onset disorder. He concluded that she had a medically validated history of anxiety and depression which predated her difficulties in the workplace. This created an underlying psychological vulnerability which influenced her response to the events that may have occurred in the workplace. He considered that a failure to consider her history of pre-existing depression, what he terms the alternative source of stress caused by the road traffic accident of the 5th July, 2010 and her unreliability as a historian would result in a false attribution of her symptoms to the bullying and harassment which the court has concluded occurred in her case.
Dr. Morgan’s Response
65. Dr. Morgan rejected Dr. Mohan’s assessment of the plaintiff’s condition. He had no doubt that she suffered and continued to suffer from anxiety and that her symptoms fitted a diagnosis of PTSD. He was satisfied she came within the DSM-IV or DSM-V classifications for that purpose. He gave evidence that PTSD was both an anxiety and depressive disorder the treatment for which were the same. The mental pain and suffering which the patient suffered was considerable. He was satisfied that whether one characterised it as PTSD or not the plaintiff certainly was depressed and anxious for a considerable amount of time which gave rise to the symptoms of which she complained. He stated that PTSD may occur for many reasons. One may have the condition and not be aware of what the stressor was. It could occur after a car accident or as a result of somebody seeing something on television or an immediate or horrifying incident. There could be a delay between the time of the incident and when the symptoms first occur. He was not satisfied that the post-natal depression described by the witness and outlined in the medical records should be regarded as anything more than a minor consideration to be taken into account when making the diagnosis. He accepted that she was prescribed an antidepressant up to 2003 following these episodes. It would have been helpful to know this history but it was not very relevant to his conclusion. Post-natal depression was very easily treatable and he considered that most people would not accept that is was a psychiatric illness. It was a hormonal imbalance with an element of inability to cope and was a natural occurrence. It was only relevant when there was a major psychotic depression. This would involve severe symptoms of depression, possible delusions and the possible idea of self-harm. This was not such a case.
66. I do not intend to rehearse all of the evidence. I have referred to the salient points but where there is a conflict between the evidence of Dr. Morgan and Dr. Mohan I am satisfied to accept the evidence of Dr. Morgan.
Conclusion
67. The court is satisfied having considered all of the evidence adduced to accept the diagnosis of Dr. Morgan made following his engagement with the plaintiff in 2008 that she was suffering from a moderate form of PTSD as a result of the incident in July 2006 and subsequent events as a matter of probability. The court in reaching its conclusion has considered and applied the principles and guidance set out in Kearney v. McQuillen [2012] IESC 43 and Shannon v. O’Sullivan [2016] IECA 93. This is a difficult area in which numerous factors had to be considered.
68. I am satisfied that the continuing symptoms of PTSD depression and anxiety as diagnosed by Dr. Morgan were triggered initially by the incident in July 2006 and were also caused and substantially contributed to by reason of the bullying and harassment to which the plaintiff was subjected thereafter. I am satisfied that the diagnosis was delayed because other avenues and investigations were being pursued to identify an alternative cause to no avail. She was suffering from and treated for anxiety and depression with medication directed by her psychiatrist and prescribed from time to time by her general practitioner. This caused her to experience heightened symptoms of pain in her shoulder and neck. This impinged greatly on her family life and for a time caused her difficulties in executing normal daily tasks. She was treated by Dr. Morgan between 2008-2012 when she ceased to attend with him. He believed her to be on continuing medication over this period. He provided psychotherapy when she attended. The prescription of medication was a prelude to providing her with somewhat more intense psychotherapy. This could not be arranged until her immediate symptoms were relieved by the medication. In some instances further psychotherapy is not required. In her case he was hopeful that a period of two years medication would bring about a resolution of her symptoms. Therefore, he anticipated a likely recovery from what he regarded as a moderate condition within that period. This did not occur.
69. It emerged in evidence and from the medical records referred to in the course of the hearing that notwithstanding the prescription of medication directed by Dr. Morgan, the plaintiff only took it “sporadically”. She did not adhere to the regime of medication prescribed for her. She defaulted on numerous occasions. Dr. Morgan was not informed of this during her attendances with him. She subsequently attended with Dr. Moore Groarke consultant psychologist from April 2012 for eight sessions of therapy about which Dr. Morgan was not informed. Dr. Moore Groarke was not informed that she was defaulting in the taking of her medication. From time to time the plaintiff re-attended with her general practitioner for further prescriptions: she was informed of noncompliance with medication from time to time. Dr. Morgan acknowledged that some patients may wish to come off medication but this should be discussed with their medical advisors. I am satisfied that the plaintiff continued to exhibit physical symptoms after that time and this was accepted by Professor Kane and Mr. Neligan whose evidence I have also considered. Mr. Neligan also declined to discount the possibility of a psychological element in the continuing symptoms.
70. I do not accept that the plaintiff resisted repeated admonitions from her employers to return to work in 2008 and 2009 on some unjustified or capricious basis which led to her dismissal in 2011. The medical/welfare department made their own assessments sometimes in the face of ongoing treatment and symptoms a matter considered in the earlier judgment. Furthermore, I do not accept the propositions advanced by the defence that her disinclination to return to work when this was demanded by her employer was contrived or linked to the issuing of legal proceedings. However, I must also consider whether the continuation of her symptoms is to be ascribed to the defendant following the diagnosis belated though it was and the treatment recommended as a result.
71. In January 2010 the plaintiff was only partially in compliance with the medication prescribed. In May 2012 she informed Dr. Fleming that she had ceased taking the medication. She does not appear to have been taking her medication in September 2012 when it was re-prescribed. She said that she then took anti-depressants in 2013 and 2014 and then stopped. There was a very limited engagement by her with those who were treating her. I consider that it is an important feature of the case that there was no contact with Dr. Morgan between 2012 and 2016.
72. I am satisfied that once the condition was diagnosed and a course of treatment commenced, a patient should follow that course of treatment as directed. A plaintiff who does not follow the regime of medication prescribed and the course of treatment ultimately directed by her consultant psychiatrist is not entitled to be compensated for pain and suffering caused by the continuation of symptoms which have not improved largely because she has failed to continue with a conservative and moderate level of treatment. I am satisfied on Dr. Morgan’s evidence that it was likely that her symptoms would have resolved if she had adhered to the treatment advised.
73. I have concluded, therefore, the plaintiff is entitled to general damages for continuing symptoms of PTSD anxiety and depression from the date of her return to work in August 2006 for the period up to the end of 2011. I am satisfied that this is the period in respect of which compensation is appropriate following the diagnosis made by Dr. Morgan in 2008 and the course of treatment recommended by him because he anticipated that the plaintiff would make substantial progress in the three to four year period over which he treated her and perhaps within a period of two years. I am not satisfied to conclude that the plaintiff is entitled to damages for further pain and suffering beyond the end of 2011 nor is she entitled to succeed in a claim for loss of earnings beyond that date.
74. I am satisfied that the plaintiff is entitled to general damages in the amount of €50,000.00 for pain and suffering up to the end of 2011.
75. The plaintiff is also entitled to a sum for any loss of earnings sustained between 15th August, 2006 and the date of her dismissal and thereafter up to the end of December 2011. I am satisfied that the plaintiff by reason of her continuing symptoms could not return to work on the basis proposed by her employer in July 2008 and 2009. At that stage she was still suffering acutely from symptoms of stress, anxiety, depression and pain and was under the care of Dr. Mulcahy. She had embarked on a period of treatment under Dr. Morgan. The workplace issues and the plaintiff’s workplace difficulties continued into 2008. This is reflected in the correspondence and the court has already expressed its findings in respect of liability on this matter. She is entitled to any loss of earning sustained during the period within which she might reasonably have been expected to undergo the treatment directed on the basis of Dr. Morgan’s relatively positive prognosis at that time. She is entitled to net loss of earnings for the period when she was out of work from 28th December, 2006 until 5th January, 2007, the 28th September, 2007 until 7th January, 2008 and 11th February, 2008 until 15th July, 2011. Thereafter I am satisfied that she is entitled to further loss of earnings until the end December 2011.
76. There is also an agreed figure for an award of other items of special damage in the sum of €4,643.00.
ADDENDUM
77. On the 23rd March, 2018 further submissions were made by counsel in respect of the claim for net loss of earnings in respect of the periods set out above. The calculation of that figure was agreed by the parties as €84,426.00. I am satisfied that the appropriate figure in respect of recoverable benefit under s. 13 of the Social Welfare and Pensions Act 2013 (as amended) as agreed is €39,426.00. It is agreed that the plaintiff will be credited with any pension entitlements accrued up to the 15th July, 2011, the date of her dismissal, but that sum does not form part of the calculation of the sum to be awarded in respect of loss of earnings set out above.
78. The plaintiff also claims interest on that amount pursuant to s. 22 of the Courts Act 1981. An amount of interest has been calculated at €22,064.00 and the court has been informed that the calculation is made from the date upon which the monies would have fallen due for payment in the course of her employment.
79. The court is asked to exercise its discretion in favour of the plaintiff pursuant to s. 22 of the Courts Act 1981 which provides that:-
“(1) Where in any proceedings a court orders the payment by any person of a sum of money (which expression includes in this section damages), the judge concerned may, if he thinks fit, also order the payment by the person of interest at the rate per annum standing specified for the time being in s. 26 of the Debtors (Ireland) Act, 1840 , on the whole or any part of the sum in respect of the whole or any part of the period between the date when the cause of action accrued and the date of the judgment.”
80. Section 22.5(e) precludes the awarding of interest on damages for personal injuries but not in respect of loss of earnings.
81. In.Reaney & others v. Interlink Ireland Limited [2018] IESC 13 the Supreme Court considered the exercise of the court’s discretion under section 22. O’Donnell J. delivering the judgment of the court stated:-
“11. It is rudimentary economic theory that money has a time value. The person who has a sum of money over a period can obtain a benefit either in interest on that sum if invested, (or other return on investment) or interest avoided because that sum does not have to be borrowed. By the same token a person who has not received money incurs a cost, in particular if they have had to borrow. By 1981 a decade of inflation had shown that in many cases an award of damages, particularly in commercial or contractual situations, could fall well short of a full remedy for a wronged party because the real value of the award at the conclusion of the proceedings could be substantially less than that monetary amount had been worth in real terms at the time of the breach of contract or the failure to pay. Accordingly s.22 gave a discretion to courts to make an award of simple interest at a rate fixed from time to time under the Debtors Ireland Act 1840. At the time of the introduction of the Act that rate was 11%. It was subsequently reduced to 8%, which was the applicable rate at the time of these proceedings, but has now been reduced to 2% by S.I. No 624/2016 Courts Act 1981 (Interest on Judgment Debts) Order 2016. … even in circumstances where damages are static, or even reducing, the logic that money has a time value should in theory be reflected in an award of interest. Interest is not simply awarded as a remedy against inflation, it reflects the fact that there is a cost in not having the money for a certain period.”
82. O’Donnell J. in summarising the principles applicable stated that interest under s. 22 should be awarded when a court concludes that the amount it is awarding is clear-cut and could, and should, have been paid earlier. However where a claim is difficult and requires assessment and determination it may be appropriate not to award interest. It is appropriate for the court to consider all of the relevant features of the case in determining whether to exercise its discretion in making an award of interest in the case.
83. In this case the amount awarded in respect of loss of earnings, arose from the inability of the plaintiff to carry on her duties at work due to the negligence and breach of duty of the defendant to her as an employee. The court accepted the evidence of the effect of this loss of income upon the plaintiff and her household budget. It caused particular hardship and had a direct and continuing negative effect on the plaintiff ‘s standard of living and that of her family. They lived through hard times in that period without the benefit of that income. I have no doubt that this gave rise to considerable hardship for her and her family as was outlined in evidence during the course of the trial. I do not consider that there is any realistic issue in relation to an absence of diligence by the plaintiff’s in pursuing these proceedings sufficient to influence the exercise of my discretion against her. Having considered all of the evidence in the case I am satisfied that it is appropriate to exercise my discretion and award interest on the loss of earnings which is calculated to be €22,064.00 on that element of the loss of earnings which is not part of the sum the subject of repayment under welfare code.
84. I am therefore satisfied to make the following award:-
General Damages €50,000.00
Loss of Earnings €84,426.00
Interest €22,064.00
Special Damages €4,643.00
Total €161,133.00
I will therefore make an award in the amount of €161,133.00.
McCarthy v ISS IrelandLtd (Trading as ISS Facility Services) & Anor
[2018] IECA 287
Composition of Court:
Peart J., Hogan J., Whelan J.
Judgmentby:
Peart J.
Status:
Approved
Result:
Allow and set aside
THE COURT OF APPEAL
Neutral Citation Number: [2018] IECA 287
Record Number: 2014/1139
[Article 64 transfer]
Peart J.
Hogan J.
Whelan J.
JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 13TH DAY OF AUGUST 2018
1. This is the plaintiff’s appeal against the dismissal of her personal injuries claim by the High Court (Kearns P.) by order dated the 11th December 2013. It is important to point out that the dismissal of the action did not occur at the conclusion of the plaintiff’s case on foot of any non-suit application made by the defendant. At the conclusion of the plaintiff’s case, counsel for the defendant simply indicated to the Court that the defendant was not calling any evidence.
2. At the relevant time the plaintiff was employed by the first named defendant as a cleaning supervisor at the Mid-Western Regional Hospital at Dooradoyle, Limerick. She claims that between May 2009 and February 2011 there were five separate incidents in which other cleaning staff whom she supervised, acted in an aggressive, threatening and abusive manner towards her, mainly by shouting and by other aggressive behaviour during the course of their employment, and over time thereby caused her such severe stress and anxiety (including post traumatic stress disorder), humiliation, pain and suffering that she was compelled to leave her employment. She alleges that following the first such incident she reported same to her employer, but that no particular action was taken to prevent a recurrence. She contends that by not taking any sufficient action following her complaint, and her subsequent complaints, her employer allowed a situation to prevail in her work place whereby the cleaning staff whom she supervised felt able to behave in this abusive, threatening and aggressive manner towards the plaintiff with no fear that there would be consequences for them.
3. It is the failure of the first defendant to have acted appropriately to prevent a recurrence following the plaintiff’s first complaint, and subsequent failures, that is alleged to constitute negligence on its part, whereby the plaintiff suffered personal injuries as a result of the particular incidents on a cumulative basis, and the atmosphere of intimidation that prevailed in her work against her, and which put her in fear.
4. The plaintiff accepts that each of the five particular incidents which she has recounted were perpetrated by different staff members, and that they were not acting in any coordinated way or in concert. She accepts also that a considerable time elapsed between each such particular incident. She accepts also that the first incident happened ‘out of the blue’ so to speak, and that her employer could not reasonably be expected to have anticipated or foreseen it. But, as I have said, the gravamen of her case against her employer is that having made a complaint to her employer in the aftermath of the first incident, combined with the failure to act even after subsequent complaints, no steps were taken to prevent a recurrence, and that this failure led to a culture in the workplace where aggressive, abusive and threatening behaviour towards the plaintiff, as their supervisor, was allowed to occur with impunity to the perpetrators, and that the incidents themselves and the atmosphere of fear and intimidation towards her led cumulatively to her suffering such fear, stress and anxiety that she was forced to leave her employment. That is the essence of her claim.
The five particular incidents:
5. The five particular incidents are listed below:-
(a) The first incident happened on the 28th May 2009. On that date Ms. J who worked as a cleaner under the supervision of the plaintiff, approached the plaintiff and accused her of having made complaints about her in a work audit. Ms. J was accompanied at the time by her husband. They both acted in a very aggressive manner towards the plaintiff. The plaintiff contends that this behaviour amounted to an assault. In particular the evidence was that it was Ms. J’s husband who, during the course of this encounter, pinned the plaintiff against a wall and threatened her. She was in fear that he would hit her. Ms. J’s husband was not employed by the first defendant. But the plaintiff contends that since Ms. J who was an employee was acting in concert with her husband, the first defendant is vicariously liable for the actions of Ms. J on the occasion. She reported this incident to her employer. She was so distressed by what had happened that she went on sick leave. She attempted to return to work in September 2009 but being still nervous and stressed she resumed sick leave. She did not hear back from her employer as to any steps taken on foot of her reporting the incident.
(b) The second incident occurred some seven months later on the 5th January 2010 when a male employee working under the plaintiff’s supervision shouted into her face, and behaved in an intimidating and threatening manner towards her. She was afraid that he was going to hit her. This is said to amount to an assault also. Again, she says that she reported the incident but heard nothing further about it.
(c) The third incident occurred five months later on the 30th June 2010 when another male employee shouted at her. This happened after the plaintiff as his supervisor had asked him not to enter the intensive care unit of the hospital because there was some infection there. He apparently responded to her request by shouting and roaring at her in public and behaved in a threatening and abusive manner. The plaintiff was very distressed about this incident also, and reported it. She says that she heard nothing further about it from her employer.
(d) The fourth incident happened on the 18th July 2010. On that date she had asked another male employee to clean a particular corridor and his reaction to that request was to roar and shout at her using abusive language, saying that it was not his job, and generally intimidated her. The plaintiff was caused great distress by this incident. She again reported the incident. Her evidence was also that on the day following this particular incident her superior asked her if she would take redundancy, and a few days later asked her if she was “one of the McCarthy Dundons” (a Limerick family notoriously associated with criminality in Limerick), and suggested that things were going to get very difficult for the plaintiff.
(e) the fifth and final incident occurred on the 15th February 2011 when the plaintiff was in the course of speaking to her manager about another employee whom she cold not find. It appears that while talking about this to her manager, that employee burst into the room and started roaring and shouting about the plaintiff. The manager told that employee that he was to do what the plaintiff said, but apparently he continued to roar and shout. The plaintiff again became very upset over this incident. She says that once again nothing was done about what had happened, and she heard no more about it from her employee.
6. It is the cumulative effect of these incidents upon the plaintiff’s mental health that is relied upon, rather than any one incident, combined with the fact that despite being made aware of what was happening and its effect on the plaintiff the defendant employer took no proper or appropriate steps as employer to prevent any recurrence. The plaintiff contends that if proper steps had been taken after the first incident, and after any subsequent incident she would not have been exposed to the aggression and intimidation that persisted in her workplace and would not have suffered injury to her mental health, and would not have been forced to leave her employment. It is in these circumstances that it is contended that the first defendant was in breach of its duty of care to the plaintiff to provide a safe place of work, and that as a result of such breach she suffered personal injuries, loss and damage.
7. Having heard the evidence the trial judge delivered an ex tempore judgment and dismissed the plaintiff’s claim on the basis that she had not made out her claim of negligence against the first defendant. Though not pleaded as a case of workplace bullying as such, the trial judge commenced his ex tempore judgment as follows:
“This is effectively a bullying in the workplace case and so one looks at a case of this nature for characteristics which go with bullying and which mark bullying out as a particular form of experience that a person has to go through. Markers for bullying might include, for example, repetition, something happening on a daily basis or even less frequently than that, a weekly basis, that a person has to endure. The duration of the particular treatment to which the person is subjected. Thirdly, one looks for indications of escalation of the activity because certainly once more one thing in life teaches is that bullies don’t stop, at the first sign of weakness, they on the contrary step up the pressure and increase it and usually look for a disparity in the relevant positions of power and strength of the two sides to the situation. So, for example, a teacher is in a stronger position to bully a pupil. An employer is in a stronger position to bully an employee. A senior employee is in a stronger position to bully a junior employee. As Mr Aylward quite properly pointed out that can flip over at time and we’re equally aware of teachers being mercilessly bullied by young pupils and he’s made the point, and I think a valid one, that a person in a supervisory capacity can in turn be bullied by those over whom they are supposed to exert control. That can often happen because in the view of those below that supervisor they may feel that they were the ones that should have been appointed to this particular job or for some other reason.”
8. Having commenced his remarks in that way, the trial judge then outlined the five incidents referred to. He referred to the fact that each incident was perpetrated by a different employee and referred to the temporal gaps between each such incident. He referred to the first incident being ‘out of the blue’ and one that the employer could not have anticipated, and that it had been investigated and that Ms. J had never again approached the plaintiff.
9. The trial judge stated that he could not see how any careful employer could have predicted that an episode such as the February 2010 incident would happen. In fact it can be inferred from his remarks that he considered that none of the particular incidents cold reasonably have been anticipated by the employer given the spontaneous nature of what occurred on each occasion.
10. The trial judge went on to state:
“So, there were these four/five episodes with significant intervals between them and they are brought together by the plaintiff in this set of legal proceedings to argue that here was a situation of, if you like, systemic bullying in the work place. But that case it seems to me is totally undermined by the plaintiff’s own evidence. I must in a sense pay tribute to Ms. McCarthy because I felt that she was a very genuine person and she was doing the best she could and honestly she has misconstrued what happened in work totally. She very fairly admits in her opinion, and she was there and she knows the situation, that there was absolutely nothing her employers could have done about any of these incidents, all of which I am satisfied cannot be taken as having occurred in the course of the respective employee’s employment. They were not part of their ordinary work or foreseeable that any employee would have behaved in this particular way.
Secondly, she accepts that there was no question of any of these people acting in concert or acting in common cause against her. There is no evidence of any feud going on in the work place. It is a very large work place with thousands of employees and so it would have been, I would have thought, fairly easy if there was some sort of conspiracy to carry out this sort of shameful activity that I would have heard about it.
But on the contrary, and that would have been indicative of a culture of bullying being tolerated at the work place and I discussed with Mr Aylward how history is full of examples of that sort of culture of bullying perhaps even being encouraged in certain organisations or certainly occurring and one can think of many instances some of which I discussed with Mr Aylward. Even with the thousands of employees working in this particular organisation, not one other single employee has come forward or has been identified as having been bullied or bring forward similar complaints or identifying a group of people who were carrying out bullying and I’m left then in a situation where there is a serious, I won’t call it serious, but a succession of unrelated events to a greater or lesser degree were upsetting from the plaintiff’s point of view.
Now, ordinary human life is full of upsets large and small … which don’t necessarily give rise to legal liability or responsibility and again one has to ask the question: in respect of any one of these incidents what could her employers reasonably have done? Were they supposed to bring all three and a half employees in one by one into some sort of a room, close the door, sit the person down and lecture them about this particular employee had reacted in a particular way to an episode and put them on notice of a warning and possible dismissal if anything of the sort occurred again? I mean no work place could operate on that sort of basis.
I am satisfied really at the end of the day that this was an unfortunate episode. That the plaintiff herself does not associate it in any way the fact that her marriage broke up at around the time that these particular episodes. So I am sure she certainly doesn’t believe there is any connection, but the particular incidents themselves do not strike me as incidents which would in the ordinary course cause a person to suffer as the plaintiff claims to have suffered in this case. She may have been particularly vulnerable but there was no evidence of that over the 25 years during which she was perfectly happy at her place of work. So while it has all been a very unfortunate experience for the plaintiff, I cannot see and I could not possibly impose some sort of legal liability to pay the huge sums of damages and compensation being claimed on behalf of the plaintiff in this case, and I must dismiss the claim.”
11. The starting point of the appellant’s submissions is that the trial judge erred in characterising her claim as one of work place bullying, and that he erred in dismissing her claim on the basis that the indicia of work place bullying had not been established by her.
12. The plaintiff submits that she never pleaded or presented her case as one of work place bullying, but rather one of negligence on two different bases.
13. Firstly, she alleged individual tortious acts by employees committed by them in the course of their employment, which individually and cumulatively caused her injury, and for which the employer is therefore vicariously liable.
14. Secondly, she alleged negligence by the employer by failing to provide a safe place of work. The case for a failure to provide a safe place of work relies on the fact that having been informed of the first incident, and each later incident, and the anxiety and distress which each caused the plaintiff, the employer took no reasonable and effective action to prevent a recurrence. It is submitted that by this failure the employer negligently permitted an atmosphere or culture to exist in her work place whereby cleaning staff over whom the plaintiff was the supervisor felt free to speak and act aggressively and abusively towards her without fear of sanction or other adverse consequences. In other words this tortious type of behaviour by other cleaning staff was tolerated in the work place by the employer, and therefore deemed by staff to be acceptable.
The individual acts and vicarious liability
15. The appellant submits that by concentrating in his analysis of the plaintiff’s claim on the question of bullying, and finding that the indicia of bullying were not established by the evidence, the trial judge failed to carry out any proper analysis of the question of the employer’s vicarious liability for the individual tortious acts of the employees. It is submitted that the evidence of each of the five acts supports a conclusion that each act constituted an assault committed in the work place and in the course of their employment. As to the conclusion that each individual act complained of by the plaintiff was ‘out of the blue’ and not foreseeable by the employer, the plaintiff submits that as a matter of law the question of foreseeability on the part of the employer does not arise, since vicarious liability is a form of strict liability – seeO’Keeffe v. Hickey[2009] 2 IR 302, per Hardiman J. and Fennelly J.
16. I am not satisfied that as a matter of law the employer in this case can be held vicariously liable for the five individual acts which the plaintiff complained of. Each act does amount to a technical assault given the aggressive way in which she was shouted at and abused, but I would not hold that these acts are committed in the course of the perpetrator’s employment in the sense in which that phrase should generally be understood. I say that despite the undoubted fact that the plaintiff was in a supervisory role over the employees in question when these events occurred. The acts complained of are to be contrasted with the more usual situation of vicarious liability where during the course of carrying out the work for which the employee was employed he/she performs that work in a negligent fashion and causes some third party to sustain an injury. In the context of the present case by way of example, clearly if one of the cleaning staff, having washed a floor in the hospital, left the surface wet and without any warning in that regard to the public or his fellow workers, and somebody then slipped and fell on the wet surface, there could be no question but that the employer would be liable for the negligent act of the employee. That is a classic case of vicarious liability in which the question of foreseeability on the part of the employer is irrelevant, and would not have to be established.
17. But this is not such a case. In each of these incidents the employee in question simply spoke and behaved aggressively both verbally and to an extent physically but short of a physical assault as such, towards the plaintiff. Although the incidents happened while both were at work and in the work place, it was not behaviour committed in the course of employment. It is the sort of behaviour that would entitle the employer to invoke some form of disciplinary action, commencing perhaps with a warning, but it would in my view be stretching the concept of vicarious liability beyond its intended limit if an employer was to be found vicariously liable for every individual aggressive verbal outburst by one employee to another during the course of a day’s work, even where that outburst has caused distress and anxiety to its victim.
18. In fact, in the present case, the plaintiff does not make her case on the basis that each individual act complained is one for which she seeks to be compensated by her employer. The Court would have to consider the matter very differently if, for example, the first incident was the only incident that occurred and the plaintiff sought damages from her employer for that particular incident. The same goes for each subsequent incident. But, as I have said, that it not the basis on which she brings her claim. It is on the basis of the cumulative effect of these five separate incidents on her mental health.
19. I would dismiss her appeal in so far as she relies upon vicarious liability for these incidents.
The failure to provide a safe place of work
20. All employers owe a duty of care to their employees while they are at work. This is a duty owed both under the common law, and as mandated by many regulations governing working conditions and safety in the work place in all its many and varied forms.
21. The duty of care under the common law includes the general obligation to provide a safe place of work. What comprises the concept of safety in any particular case will vary depending on the nature of the work and of the work place. Broadly speaking where it is reasonably foreseeable by the employer that when carrying out their lawful duties in the course of their employment there is a foreseeable risk to which the employee will be exposed, the employer is under a duty to take all reasonable steps to protect the employee against it so that no injury is caused. All work places have risks that must be anticipated and protected against by the employer. Those risks will pose a danger to some employees in a particular work place and not to others. For example, on a building site the risks to which a construction worker is exposed while working at a height are very different to those to which a person whose work is confined to the office will be exposed. The employer must consider each and take reasonable steps to protect against the risks posed to each category of employee.
22. In this case the plaintiff was a supervisor. That role is a particular role in the work place which is different to the role of those over whom she supervises, even if some of her work involved actual cleaning. She is not the employer of those whom she supervises, yet she has authority over them. She can both direct the work they are to do, and check that it has been done correctly. It is the sort of role that can potentially bring her into conflict with those under her supervision. I would consider it reasonable that an employer of such a supervisor should have a particular duty of care towards a supervisor, and to anticipate that such conflict might occur, and to have procedures in place to minimise such conflict and to deal with it when it occurs so as to prevent as far as reasonably possible any recurrence.
23. The evidence of Mr Brian Aylward called by the plaintiff was important evidence in this context. He has over 30 years’ experience in the industrial relations field, and he prepared a report in relation to the plaintiff’s complaints. He was critical of the company’s failure to act on foot of the complaint first made by the plaintiff in May 2009. His view was that this complaint should have alerted the employer, especially when soon afterwards the plaintiff had to go on sick leave for some weeks. He referred to the company’s own manual in relation to how complaints should be addressed. In relation to the manual, it is worth quoting a lengthy passage from his direct evidence as it appears in the transcript (Day 2, p.61):
“The company booklet is quite good. There is a paragraph there to which I direct your attention and I would argue that it wasn’t fulfilled at all, but also normal good practice wasn’t fulfilled. It says:
‘The complainant should be subject to an initial examination by a member of management who can be considered impartial with a view to determining an appropriate course of action …’.
Now it seems to me that that probably did happen. Mr Sweeney in fact did that.
‘… An appropriate course of action at this stage, for example, could be exploring a mediated solution or a view that the issue can be resolved informally. Should either of these approaches be deemed inappropriate or inconclusive, a formal investigation of the complaint should take place with a view to determining the facts and the credibility or otherwise of the allegation’.
Insofar as I am aware the company did absolutely nothing after Mr Sweeney presented them with the statements. They did not interview people and they did not do what would be the normal thing in a situation like that. They did not offer counselling after the incident. They did not call the staff together and point out to them the inappropriateness of their actions, of actions of this nature. They just did nothing. It died. They left it rest and this is why I asked, if I could go back, but what that does is inculcate a culture in the organisation where bad behaviour of some sort is allowable. So in other words you can argue, and it is for the Court obviously to decide, that this allowed the culture to develop where employees could abuse their supervisors. Now you’ve asked about repeat, and your good friend also asked about once off incidents, and they are clearly once off incidents, but bullying and harassment, and harassment is once-off incident, it needs only one incident of harassment to be deemed harassment but bullying is repeated. What the codes allow for is that they accept there can be group bullying and a number of people in this instance clearly bullied the plaintiff.”
24. Having regard to the fact that there was no evidence of any connection between the five separate incidents, Mr Aylward went on to state;
“I would accept there is no connection, but I would just say if there is a connection there is connection of the culture. I do not think Mr so-and-so conspired with Mr so-and-so to do it, they just knew that they could get away with it. If the company, as I would see it and some of the good companies have it in their procedures, if after … the first incident … a warning sign comes in, they know the person is going to be more vulnerable, so they have got to be more careful about how she is treated and whatever. The company in this instance, as far as I can see, in fact stripped her of a number of her entitlements when she came back to work. So in other words, instead of providing support which you would expect, they actually moved to almost discipline her. They removed her phone and I think she has described what they did to her and they allowed nothing to happen. If the company had offered counselling or if they had spoken to the staff, which they should have done, and they should have also spoken to the staff on the second occasion. I would think that would have stopped the incidents. There seems to have been no effort put into educating the staff as to the type of behaviour required from them.”
25. At that point, Mr Aylward was cross examined in relation to his reference to there being “a culture” within the company of the staff knowing that they could get away with the sort of behaviour complained of. He had to accept that he had not carried out any particular investigation as to whether there was a culture of bullying as such at the hospital. He had not tried to find out how many people had been bullied, how many claims might have been made, or how many people had complained about a culture of bullying. The trial judge intervened also to the same effect.
26. In my view the trial judge was correct to reject the evidence offered as to a culture of bullying in the work place. There was insufficient evidence to establish such a culture. In any event, the plaintiff did not plead her case as one of bullying as such, and neither did counsel open the case as being one of bullying in the work place.
27. Neither in my view did the question of vicarious liability arise in relation to each individual act of aggression towards her that the plaintiff complained of. The first incident was ‘out of the blue’. There is no reason why the employer should be held to be vicariously liable for what occurred either at the hands of AJ herself, or more seriously at the hands of her husband/partner who was not himself an employee. The other four incidents were quite minor outbursts, which perhaps, while not to be condoned, can inevitably be expected to happen from time to time in any work place. They do not necessarily give rise to a claim against the employer, even though they should if reported give rise to some sort of investigation and appropriate action by the employer to try and prevent a recurrence.
28. In his opening of the case, counsel referred to each separate incident and the fact that each had been reported, and that the employer had taken no action. In his opening of the case counsel stated that the employer was “liable [for their neglect in] not providing and maintaining a safe place of work and for not doing anything to ease the situation or to calm the plaintiff’s fears in any way”.
29. The report prepared by Mr Aylward addressed the case not only in terms of harassment and bullying, but also as to the employer’s duty of care to provide a safe system and place of work, and to prevent injury to its employees, including to the mental state of employees which can be adversely affected by stress. He was critical of the company’s failure to investigate the plaintiff’s complaints. He considered that to constitute a breach of its obligations under health and safety legislation. He also referred to case law regarding the scope of the employer’s duty of care to provide a safe system of work, and to the potential liability that employers have in relation to work related stress, and that this duty extends also to the mental health of the employee. He referred to cases which have held that where an employee shows signs of stress in the course employment, the employer may be found negligent in failing to take appropriate steps to eliminate the cause of the stress
30. In his report Mr Aylward listed twelve failures on the part of the employer. Some related to bullying. But the following are relevant to the breach of the duty of care by the employer, which is the basis on which the case was pleaded and run by the plaintiff:
• The company did not seem to have a policy for dealing with allegations of assault.
• The company did not investigate the alleged serious assault by the staff member nor did it invoke its disciplinary procedures.
• The company did not investigate the alleged serious assault by a member of the public who was a spouse of the above staff member.
• The company did not investigate a further threatened assault by a male employee.
• The company did not issue any guidelines to staff after this incident warning them of the seriousness of issues of this nature and the consequences.
• The company did not put in place a protocol for dealing with assault and threatened assault.
• The company did not monitor the situation post this incident and did not provide assistance to the plaintiff on her return to work. At this stage the company should have seriously considered giving the plaintiff a personal alarm.
• The company does not seem to have an Employee Assistance Programme (EAP) in place for dealing with work related stress. The company, by changing the plaintiff’s terms and conditions of employment when she returned to work after the alleged assault almost seemed to be taking disciplinary action against the plaintiff rather than investigating her complaint and supporting her in a difficult situation.
31. I have referred to the fact that at the conclusion of the plaintiff’ case the defendants called no evidence. In fact it is clear that there was never an intention to do so. At the conclusion of the opening of the plaintiff’s case the trial judge in fact inquired of counsel if the defendants were going to call evidence, and was informed that they did not intend to. There was therefore no evidence to contradict the evidence of the plaintiff and witnesses called by her. In particular there was no evidence to contradict the evidence of Mr Aylward and what he said both in his evidence and in his report to which he spoke, and was cross-examined. He did not speak only in relation to bullying and harassment, but he also addressed the issue of a breach of the employer’s duty of care to the plaintiff by failing to take any proper steps to investigate and address the incidents about which she complained and which clearly caused her fear, stress and anxiety. Nothing was done to protect the plaintiff who was in a supervisory role, which role, by its very nature, may lead to confrontation with those who are being supervised.
32. As the learned authors McMahon & Binchy point out inLaw of Torts(4th edition) at p.700 the duty of care owed by an employer to an employee varies according to the employee’s particular circumstances, and that there is no single duty of care laid down by the courts. The extent and nature of the duty of care will vary depending on the nature of the employee’s employment. The authors reference the judgment of Griffin J. inDalton v. Frendo, 15th December 1977, Supreme Court where at p. 5 thereof he stated:
“Actions of negligence are concerned with the duty of care a between a particular employer and a particular workman … that duty may vary with the workman’s age, knowledge and experience”.
33. The duty of care will in my view also comfortably take account also of the nature of the employee’s job and the relationship thereby existing between her and other employees. In other words, in the present case, one cannot overlook the fact that the plaintiff’s job was as supervisor of cleaning staff in a busy hospital. It was her job to make sure that those under her supervision did the work for which they were employed and did it to the required standard. In a hospital environment, I need no expert evidence to be satisfied that in that environment a very high standard of cleanliness must exist at all times. In my view in such circumstances, and where the plaintiff made complaints to her employer about incidents of hostility, aggression, and abuse by those whom she was supervising, the employer owed a duty of care to her to take some reasonable steps to address what occurred with a view to minimising the chances of recurrence. The duty of care does not extend to ensuring that no recurrence ever takes place. That would be too high a standard to be expected. But they were obliged to takereasonablesteps to protect her from a recurrence where it was evident to them that these were a cause of significant stress, anxiety and fear to the plaintiff. In my view the evidence establishes that they failed to do so. While AJ was spoken to, no other step was taken, and certainly the plaintiff was not informed of any steps taken, and was therefore permitted to remain in a state of anxiety over a considerable period of time, and despite making a further four complaints. Mr Aylward’s uncontroverted evidence is that there were no policies and procedures in place to deal with issues of this nature. By these failures, the employer breached its duty of care to the plaintiff by failing to provide the plaintiff supervisor with a safe place of work, taking account of her particular role as a supervisor, and it is liable in negligence for the injuries, loss and damage that are attributable to that negligence.
34. The employer has adduced no evidence to the contrary. In my view the trial judge erred by considering only the question of bullying in the workplace. While he was, in my view, correct to reject the claim based on that ground, and in relation to vicarious liability in respect of each individual act complained of, he erred by failing to deal with the claim on the basis of a failure by the employer to provide a safe place of work for the reasons stated.
35. It is important to emphasise that this is not a case where the defendants made an application for non-suit at the conclusion of the plaintiff’s case. It chose at the outset not to call evidence. At the conclusion of the plaintiff’s case it simply indicated that it would not go into evidence. In such circumstances it is unnecessary to return the case to the High Court on the question of negligence and this Court may legitimately find that the trial judge fell into error in the manner indicated and conclude that the employer was negligent.
36. I should add perhaps that counsel for the plaintiff accepted that the plaintiff’s case was in reality only against the first named defendant and not against the HSE which owns the hospital. There were no costs implications by so accepting since both defendants were represented by the same legal team.
Conclusions
37. I would therefore allow the appeal, and would remit the case against the first named defendant, the employer, to the High Court for a determination of the issues of causation and damages.