A personal injury action is what is known in law as a “tortious claim”. This type of claim alleges that a legal “wrong” has been done by a Defendant to a Claimant, and if successful the Court will award damages depending on how serious the damage caused by the “wrong” is.
To win a personal injury claim, a Claimant needs to prove to the Court that, on the balance of probabilities:
- the Defendant owed a duty of care to the Claimant not to act carelessly;
- the Defendant broke that duty (otherwise known as negligence);
- that negligence caused the Claimant to suffer an injury.
Duty of care
Whether a duty of care exists at all depends on all of the circumstances of a particular case. The law applies a test to each claim, which is whether a reasonable person in those circumstances should consider that, if they act negligently, a particular class or type of person might be harmed as a result. This is called foreseeability. Provided you are one of the persons who are in that particular class, then a duty of care is owed to you.
To win a claim, you need to show that a duty of care exists towards the class of people who are “employees”. Sometimes this duty of care is laid down by an Act of Parliament, such as the various Factory Acts. In other cases, such as stress cases, the Courts themselves have decided that a duty of care exists. This is known as the “common law”.
As an example, a driver owes a duty of care to pedestrians to drive safely, because a reasonable driver should expect that, if they drove carelessly, the class of persons who are pedestrians might be injured. However to take an extreme example that driver would not owe the same duty to the pilot of an aeroplane flying overhead-because it would be unreasonable to expect the pilot would be injured or harmed in any way if the driver was negligent.
The standard of the duty of care
The standard of the duty of care-in other words how careful a Defendant has to be-depends on the circumstances and who the duty is owed to. Not all accidents are someone’s fault. The Court again asks what would be reasonable to expect in those circumstances.
In our example a high standard of care is expected of a driver approaching a zebra crossing on a city street, as the law gives a pedestrian a right of way and a reasonable driver should expect people to cross on them. The standard would be lower for a driver on a motorway, as it would not reasonable to expect a pedestrian to try to cross one.
The standard of the duty imposed upon an employer is either imposed by statute, or by the common law. In stress cases the employer is required to behave as a “reasonable employer” could be expected to behave.
Breach of duty
Once it is decided what the standard is, a Claimant needs to show that the Defendant has broken that standard. This depends on a careful examination of the facts and the evidence by the Court, but it is very important not to assume that, merely because someone has been injured, there is necessarily a breach.
The person who has been injured also has a duty to take reasonable care of themselves. In our example, the pedestrian may have suddenly run across the road and the driver may not have been able to avoid an accident. This is called contributory negligence, and it means that even if the Defendant is found to be liable the Court may deduct a percentage to reflect the blame that should attach to the Claimant. If the Claimant is found to have been 25% contributorily negligent the damages that are awarded will be reduced by 25%.
Even if it is shown that a Defendant has broken the duty of care, it is also necessary to show that the injury was of a sort that a reasonable person might expect to develop as a result of that particular breach. This is not usually a difficulty in road traffic accidents where it would be reasonable to expect injuries such a broken arm or brain damage. But it would not be foreseeable that a person who is involved in a very minor accident would develop a fear of cars, for instance.
In claims against employers, the test is again what a reasonable employer might foresee would be the result of its negligence. This is easy to see in for instance a case where a defective floor might cause an employee to trip over and sustain a broken arm. It is less easy in stress cases, as most people would not sustain psychological damage as a result of a stressful job. However, if the employer knows that an employee is vulnerable to an injury as a result of stress, then it can be argued that psychological harm was foreseeable.
It is necessary to show that the injury was a result of the breach and not for some other reason, in other words it was caused by it. If our pedestrian suffered arthritis after the accident it would be necessary to show through expert evidence that it was caused by the accident and they would not have developed it anyway. In other words, it is necessary to show that the employment-related stress produced a recognised psychological illness or disease.
The illness or disease must also be recognised as a medical condition by the World Health Organisation. “stress” is not a recognised disease, although there are many illnesses that are-for instance psychosis and depression.
The law relating to occupational stress claims
In February 2002 the Court of Appeal gave guidance on this developing area of law in the following cases:
- Sutherland -v- Hatton;
- Somerset County Council -v- Barber;
- Sandwell MBC -v- Jones;
- Baker Refractories Limited -v- Bishop.
The guidance is:
- “Where psychiatric harm is suffered by an employee, the ordinary principles of employers’ liability apply”;
- “The threshold question is whether this kind of harm to this particular employee is foreseeable. Because of the nature of psychiatric disorder it is harder to demonstrate that an injury of this kind is foreseeable by a reasonable employer than physical injury, but this is very much dependent upon the individual”;
- “Factors which may be relevant include the nature and extent of the work being done, and signs from the employee such as complaints or warnings”;
- “Unless the employer knows of some particular problem or vulnerability any employer is entitled to assume the employee is able to deal with the normal pressures of the job”;
- “An employee who returns to work after period of sickness without making further complaints or giving further information about the nature of his illness to his employer is usually taken as implying that he believes himself fit for work”;
- “The indications that a person is about to suffer harm from stress at work must be plain enough for any reasonable employer to realise something should be done about it”;
- “In every case it is necessary to consider what the employer could and should have done bearing in mind the scope and size of its operation, its resources and other demands placed on it. An employer can only be expected to take such steps as are likely to do some good. In some cases the only effective way of safeguarding the employee may be to dismiss or demote, but in principle the law should not be taken to say that it is the duty of an employer to dismiss an employee. If this is the case then it is for the employee to decide whether to continue to work bearing in mind he runs a risk to his own health”;
- “An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty”;
- “Having shown that the employer was breach of duty it is necessary to show that the breach caused or materially contributed to the harm. It is not enough to show simply that occupational stress caused the harm”;
- “Many stress related illnesses are likely to have several different causes, and in principle the employer should only be required to compensate for that element for which the wrong doing is responsible”;
- “Quantification of damages must take into account contingencies, particularly the probability or possibility that the employee would in any event have succumbed to a stress related illness”.
These propositions have been approved by the House of Lords in the case of Barber -v- Somerset County Council, published in The Times on 6 April 2004. This is the highest Court in England and Wales and as such cannot be challenged or overruled save by the House of Lords itself.
As with any personal injury claim, it is necessary to demonstrate that a reasonable employer would foresee that a significant and specific type of personal injury would arise from any negligence or breach of duty on their part. In Barber the Court quoted a passage from the case of Stokes -v- Guest which is still good law:
“The overall test is still of the conduct of the reasonable and prudent employer taking positive thought for the safety of its workers in the light of what he knows or ought to know……..where he has in fact a greater than average knowledge of the risks he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve”.
Taking all of these issues into account, this means that the law now is that it is not enough that there is an obvious risk that someone will become tired or angry or upset as a result of their working environment. It is important to focus on the moment in time at which an employer knew or should have known that its failure to act properly at that time would risk the development of a recognisable psychiatric injury. It is the employer’s failures after this point that are important, and it is necessary to show that those particular failures caused an injury (which must be a recognisable psychiatric injury) which may in fact be an aggravation of an existing condition. These failures must, however, have some quantifiable effect.
Claims under the Harassment Act 1997
As an alternative to a claim in negligence for occupational stress, in some circumstances it is possible to bring a claim under the Harassment Act 1997. The effect of this Act is to create what is known as a “statutory tort”; in other words, provided the tests laid down by the Act are satisfied, a damages claim can be made. It differs from a normal claim for personal injury as the tests that are applied there have been developed by the courts over many years, in other words a common law claim as mentioned above. Another major difference is the time within which a claim must be brought; a personal injury claim must be brought within 3 years of the damage being done, i.e. the injury; under the Act the period is 6 years.
Section 3 of the Act provides that a claim for damages may be brought by the victim of a course of conduct constituting harassment, including the anxiety caused by it and any financial loss resulting from it. It is necessary to prove;
- a course of conduct on the part of the harasser, which means that the acts complained of happened at least twice;
- the course of conduct amounts to harassment, which means that it was calculated to cause distress and is oppressive and unreasonable;
- the harasser knows (or should know) that this conduct amount to harassment;
- that conduct caused anxiety or financial loss.
The Courts have examined claims brought under the Act in some detail, in particular what “harassment” actually means. The most recent case was Majrowski -v- Guys and St Thomas NHS Trust.
In this case, the Claimant said that his manager bullied, intimidated and harassed him. She was, he said, excessively critical of his timekeeping and work, isolated him by refusing to talk to him, treated him differently and unfavourably to other staff, and was rude and abusive towards him in front of them. She also set unrealistic performance targets and threatened disciplinary action if they were not achieved.
The claim was brought against the Claimant’s employer (even though it was an individual that was alleged to have been the harasser) on the basis that they were responsible for her actions (known as “vicarious liability”). The Court of Appeal was asked to consider whether an employer could be held liable for the actions of a “rogue employee” like the manager.
The Court of Appeal held that “the fact that a person suffers distress is not by itself enough to show that the cause of distress was harassment. The conduct has to be calculated, in an objective sense to cause distress and has to be oppressive and unreasonable”. The Court went on to say “employees may be distressed, and understandably so, by managerial conduct which, for instance, being properly and reasonably critical of an employee’s poor performance, is entirely within the proper and reasonable scope of the manager’s functions and duties”. However, the Court did confirm that, in principle, a claim could be made against an employer. The House of Lords has now confirmed this.
Even so, a claim under the Act is not straightforward. It would still be necessary to show that the bullying and intimidation amounts to harassment. For instance “robust management”, or behaviour which is the normal give and take of the workplace, would not. It would also be necessary to show that the person being bullied complained about it, rather than responding in kind, and that a reasonable person in those circumstances would find the conduct might cause anxiety and distress.