Psychological Injury

Civil Liability for Stress

An employer must take care, not only for its employees’ physical health but must also protect them against mental injury and factors which would cause it, such as stress, harassment and bullying in employment. An employer is potentially liable in damages for its failure to take care to protect its employees against mental injury, as well as physical injury.

An employer must take care to avoid psychiatric injuries to employees induced by stress arising from employment conditions and workload. It must take care to avoid harassment or bullying of employees by fellow employees. If it fails to do so, it may be liable for damages for breach of duty which leads to psychiatric injuries thereby induced.

The ordinary principles of negligence apply to an occupational claim based on mental injury, most commonly workplace stress. Each element of negligence must be shown. In order to find liability for negligence, the mental injury must be foreseeable.  The injury must be a definite identifiable and diagnosable psychiatric or psychological injury or illness.

It must be shown what steps the employer could and should have taken. The employee must show that the failure to take those steps has caused or materially contributed to the harm.


Nature of Duty

The general principles of the law of negligence apply. The degree of care required varies with circumstances but is significantly higher that which would apply to an occupier of premises or to third party stranger. It follows from the relationship of the employer with the employee which places a considerable onus on the employer to protect the physical and mental welfare of the employee.

The same general considerations as apply in negligence apply to employment cases

  • the practicality of steps that may be taken;
  • the gravity of the harm;
  • the risks, cost and practicality of taking steps.

The overall test is that of a reasonable and prudent employee, having a positive concern for the safety of his workers, in the light of what he knows or ought to know. Where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless, in the light of common sense and knowledge to hand, it is clearly flawed.

The employer must weigh the likelihood of risk of mental injury occurring and its potential consequences. It must balance the effectiveness of precautions and their expense and inconvenience. If it is found to have fallen below the standard of a reasonable and prudent employer in the circumstances, he is negligent.


Duty in Circumstances

The employer may be liable if it fails to take the steps that would be reasonable in the circumstances. This will depend on the seriousness of the risk, the cost and practicality of mitigation and prevention, the size of the employer’s operations and its ability to allocate resources.

Where there is recognised general practice, which has been followed for a substantial period in similar circumstances without mishap, the employer is usually entitled to follow it unless common sense or new knowledge makes clear that the practice is bad.  The employer must keep abreast of developing knowledge in the area of workplace stress and injury.

Where the employer has greater than average knowledge, (for example where its scale is such to have its own human resources department), it may be obliged to take more precautions. The existence of counselling services may, but will not necessarily be sufficient to discharge the employer’s duty of care.

If a particular job carries high levels of stress and is particularly demanding, then the risk of employer liability is higher. If the demands are unreasonable compared with other employment, if there is an abnormal level of sickness and absenteeism, if there are indications of impending harm to health from stress, then a reasonable employer should know that it should do something about it


Steps Required

In order for an employee to establish liability, it is necessary to identify what the employer should have done and could have done.  It must be shown that the failure has either caused or materially contributed to, the harm suffered.  It is not enough that the harm suffered is traceable to occupational injury.

The size and scope of the employer’s operation, its resources and the demands facing it, are relevant to the question of what is or is not reasonable. The interests of other employees may be taken into account. The steps reasonably expected to be taken are those which would be likely to help.

In the case of a larger organisation, the employer may be expected to have and employ a greater level of resources.  An employer might, for example, provide a confidential advice service, counselling or offer treatment.

If the only option is a demotion but a willing employee remains, then the employer may not be deemed in breach of duty for failure to force demotion. If the only option is dismissal, then the employer will not necessarily be in breach of duty for failing to have done so.


Foreseeability

Liability will arise where the employer’s breach of duty gives rise to a personal injury, which ought reasonably to be foreseen and ought properly to have been avoided.  The employer must foresee the type of injury suffered. A key issue in a number of cases has been whether the psychological harm was reasonably foreseeable.  It may be difficult to show that a “reasonable employer” could have foreseen mental injury and breakdown.

Foreseeability depends on what the employer knows or should have known about the risk to the individual employee.  The employer is entitled to assume that the employee can withstand the normal pressures of the job unless he knows of a particular vulnerability or problem. The nature and extent of the work done by the employee are relevant.

The fact of a high-pressure environment is not sufficient, by itself.  The courts accept that it is harder to foresee mental injury, than physical injury.  Normally, an employer can assume that an employee can withstand normal pressures.  However, where the employer knows of a particular problem or vulnerability, a mental injury may become foreseeable. There must be particular signs of vulnerability so that psychological illness, psychiatric illness is foreseeable.

It must be foreseeable that the employer’s failure to take care may cause psychiatric illness. The employee must suffer from a recognisable psychiatric illness. That type of harm itself must be foreseeable.  The injury or harm must be of a nature that can be properly labelled as a disorder.  It must be foreseeable, having regard to the characteristics of the employee and the setting.


Foreseeability Factors

Factors which increase the risk of employer liability include;

  • if it is known that the workload is demanding and above normal;
  • If the demands being made are unreasonable compared with equivalent jobs;
  • if there are signs of stress;
  • if there is abnormal absenteeism or sick leave in the same job or department.

Even with a high workload, it may not be initially foreseeable that a person may suffer a psychiatric injury such as a nervous breakdown. If, however, the employee has come to the employer’s attention or in particular, has complained to the employer, showing signs of stress or possible mental breakdown an employer may risk liability if the matter is ignored.

Signs of impending harm to health may be apparent arising from stress such that a reasonable employer would take steps to prevent it.  The employer may be liable, if he fails to take steps that are reasonable in the circumstances, bearing in mind the seriousness of the risk, the gravity of the harm, the cost and practicality of preventing it and the reasons why the risk is run.

Generally, an employer may take what the employee says at face value.  However, if he has good reasons to think to the contrary, he may have to investigate further.  He is not generally obliged to make far-reaching enquiries or seek information from medical advisors.


Causation

In a claim for personal injuries by way of pathological stress, it is necessary for the employee to show that the employer could have taken and should have been taken steps to avoid or mitigate the risk. A finding of negligence entails the identification of the steps which the employer should have taken.

The employer’s breach of duty failure must be shown to contribute materially to the harm caused.  That harm must be must be a definite, identifiable and diagnosable psychiatric or mental injury. The fact that the harm has been caused by occupational stress does not establish liability by itself. The employer is liable only if the failure to take steps, in breach of his duty of care has caused or added significantly to the harm.

Causation may be difficult to prove. Even where failures on the part of the employer constitute negligence or breach of duty, they may not be proved to be the cause of the nervous injury. Doing what the duty required when it arose may  not have been  likely to change the resultant pathological stress.


Response I

In some cases, there is an awareness on the part of the management of a developing condition. There may be sick notes which specifically diagnose conditions arising from stress or depression, for an employee who formerly had no such symptoms. Where the employer could have taken steps, which would have avoided the condition, it may be liable.

The reasonable employer is usually entitled to assume that the employee is up to the normal pressures of the job unless he knows of particular circumstances or vulnerabilities. If there is something specific about the job or employee or combination, then he may have to take further steps. This does not necessarily mean that he has to make searching or intrusive inquiries.

The reasonable employer should recognise the signs of impending mental injury, and do something about the matter. The employer may be liable if it fails to take steps that are reasonable in the circumstances, bearing in mind the risk, the cost and practicality of preventing it. In some cases, the existence of counselling services be sufficient, but in other cases, it may not be so.


Response II

An employer is generally entitled to take what he is told by the employee at face value unless there are reasons to believe to the contrary. It need not generally make more searching enquiries or seek consent to obtain medical records. If, however, there are indications of impending risks from stress, the employer is likely to be in breach of duty if he fails to take steps in the circumstances, which could have avoided or mitigated the development of a pathological level of stress.

Where there is developing knowledge of stress, the employer should keep abreast of it and not be too slow to take steps. Where he has greater than average knowledge of the risks, he may be obliged to take more than standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequence if it does.

If he is concerned, he may suggest that the employee consults his own doctor or an occupational health service provider. He should not without good reason seek the employer’s permission to obtain further information from his medical advisor. Otherwise, he might risk unacceptably intruding on the employee’s privacy.

In some circumstances, the employer might be obliged to move or even demote and dismiss the employee, if this is the only alternative. However, generally, the employer will not be in breach of duty by failing to dismiss or demote an employee, who is willing to continue in the job.


Obstacles to Claim I

Notwithstanding the general approach in employer’s liability cases to hold the employer to a high standard of care, claims arising from stress induced personal injury are not easily proved.  The employer’s negligence or breach of duty must be proved. A distinct diagnosable condition must result. It must be proved that the employer’s negligence or breach of duty was the cause of the condition.

Claims based on mental stress are not treated as liberally as those for physical injury. In order for a civil claim to succeed, the employee must have suffered an identifiable injury to health as opposed to stress in itself. This must be attributable to the workplace and must have been foreseeable by the employer. The employer must have caused the injury in that, but for his negligence, the personal injury could have been avoided.

An employee will not succeed in a claim merely because of high-pressure environment. There must be particular signs of vulnerability, so that psychological or psychiatric illness is objectively foreseeable. Every case will depend on its own facts.  In broad terms, the cases in which an employer has been held liable to date, in the more extreme category of occupational pressure.


Obstacles to Claim II

Causation and foreseeability are key issues in civil liability for occupational stress and injury. The mere fact that an employee suffers mental injury is not usually sufficient to establish liability on the part of the employer. The employer’s ability to foresee loss and damage must be demonstrated, as in other negligence cases. Some cases of alleged pathological occupational stress, based on common law negligence principles have failed because it has not been possible to show negligence or causation.

In some such cases, the employee developed undoubted serious pathological stress but found it difficult to prove negligence.  In other cases, negligence has been found is where the manifest signs of stress, often, in quite pronounced form, became evident to the employer, but were ignored or insufficiently remediated.


References and Sources

Irish Books

Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 4

Civil Liability for Industrial Accidents 1993 White Vol 1 Part 1

The Law of Torts McMahon & Binchy 2013 4th Ed Ch18

Insurance Law Buckley 4rd Ed 2016 Ch 13

UK Books

Charlesworth & Percy on Negligence 2014 Walton Ch 10