Stress: lower threshold of foreseeability?
This is a Court of Appeal case, unaninimously finding for the claimant, who was represented by counsel Gaurang Naik and Graeme Aldous from 9 Gough Square. LJ Smith makes some very good findings for claimants in stress claims
The key points are:
1. “The indications of harm must be... plain enough” (LJ Hale, Hatton)
In this case the warning signs were more colloquial than is often the case, eg “I’m cracking up. I need time off” and not flagged up by medical experts as LJ Hale, seemed to require at para 33 of Hatton.
LJ Smith repeatedly uses those signs as giving rise to “obvious inferences” about harm, which could readily be made by Judges. That sort of common sense inference makes our task on foreseeability of psychiatric injury easier than it often seems.
2. Apportionment for other causes of stress
LJ Smith suggested, and LJ Sedley agreed, that, in future, no apportionment should be made for other causes if, as was likely in psychiatric claims, possible injury from other stressful causes was indivisible.
Background before breach of duty
The claimant had a good career for the defendant for 10 years, working her way up the grades from secretary through accountant to finance manager.
The last role was later seen as the limit of her abilities. She managed an audit for the independent regulator Oftel in November 2000 but hit a crisis point with it, burst into tears and went home for two days. She was told she would not have to do that work again and her annual review in March 2001 described the task as “a bridge too far” which had “taken its toll on her”.
Later in 2001 she applied for a job that would involve similar audit work. She won it. She was told she would have support from a chartered accountant. However, the latter moved departments and in February 2002 she was doing the audit on her own.
She worked very long hours and reached “the end of her tether”. She took a short holiday but still felt exhausted. She asked her manager if she could move to a different, less demanding job and that she thought the work was too much.
He asked her to wait three months.
She struggled on but was arriving late every day as she found it hard to get up and go to work. She asked for and was given a new manager who was supposed to provide help and support but did little.
The day duty was breached
None of the above was held to show a foreseeable likelihood of psychiatric injury. That came on 23 April 2002. She told her manager that she wanted a six-month sabbatical. She said she was “stressed out”; felt “drained of energy”, “struggled to get to work every day” and “did not know how much longer she could go on without going off sick”.
He said he would ask HR about sabbaticals and that she should use the in-house counselling service.
This was later ruled to be the day the employer should have:
a. referred her to Occupational Health
b. sent her home and off work for a period
and when their failure to do so breached their duty of care.
She repeated all the above at her appraisal with managers a month later. They then decided the Occupational Health Department should be used. She had not heard from them a week later when she was signed off with symptoms noted as “trembling, very sweaty, IBS bad” and diagnosed by her GP as anxiety / depression.
She never went back and was medically retired eighteen months later.
Foreseeability
The judgements are littered with common sense observations about the likelihood of foreseeable psychiatric injury from the meeting on 23 April. She was “palpably under extreme stress” and “about to crack up” as she had said. That was clear indication of impending illness, found LJ Smith.
She had been “hardworking, conscientious and reliable” before problems set in. They were not “out of the blue”.
Counselling
Availability of counselling was principally for those who may not wish to tell managers about their problems. But she had been quite frank to them about her problems.
Only to suggest counselling was not an adequate response (see Daw -v- Intel on same point). It treated LJ Hale’s guidance about counselling in Hatton as if it were a statutory provision.
What steps would have averted injury?
a) “The judge was entitled to infer that a reference to Occupational Health would have been of value in that it would have set in motion a proper professional consideration of her problems by a doctor with specialist experience in occupational health matters”
b) “The judge was entitled to conclude that the respondent was asking for a lengthy time off work to... enable her to recover from her feelings of exhaustion. The judge was entitled to infer that to send the respondent home would be beneficial as it would remove the pressure that she was under.”
Causation
“The obvious inference is that she tipped over the edge because nothing significant had been done to recognise and address her need for a rest and for a change to her work requirements.
“There were other factors including a vulnerable personality, difficulties with her partner and IBS but given her good career and these events it was perverse not to find these problems had materially contributed to the tipping over into psychiatric illness.”
The use of obvious inferences is helpful where multiple causes may exist.
Apportionment
LJ Hale had suggested apportionment apply in Hatton. LJ Smith thought not. It should apply to divisible injuries and she doubted its use in psychiatric injury claims with multiple causes of breakdown.
The better point for the defendant was that other factors might cause similar damage at a later date.
Judgment for claimant
Dickins -v- 02. CA, 16 October 2008