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stress at work – matter of history

12 June 2015

Over 10 years ago now the Court of Appeal gathered four cases to be heard together with the express intention of providing guidance as to the handling of stress at work cases claims. The fact that they recognised the need was important. It amounted to an acceptance that there was something special about this sort of claim that distinguished it from the ordinary run of employer liability claims.

The difference lay in the nature of psychiatric injury and the fact that of their nature stress at work claims did not deal with a relatively simple (albeit tragic and life changing) single traumatic event but rather from an accumulative pressure and unhappiness. The setting was important too. The employer’s knowledge of the employee was limited to what he saw of him in the place of work. He could not be expected to know about the employee’s life outside work. Many other people closer to the employer would have far more information. Not only might he not know, but he might be facing a situation where the employee would wish to conceal the true state of affairs in order that he was not thought unable to cope. Moreover whilst the employer could exercise some control over the employee at work the environment in which he worked he was not in charge of the way in which the employee carried out the work, or prioritised tasks, or balance of demands of work and life outside the work place. Moreover whilst the employer had a responsibility for minimising physical risks within the work place, the responsibility and respect of psychiatric risks was a shared one to the employer and employee, family and friends.

This firm foundation led to important principals. First in respect of liability, the threshold test laid down a high hurdle for claimants to climb. “In view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it”. Secondly, the Court of Appeal recognised that there might well be several different possible causes operating on the employee who became ill. Some would be to do with work. Some would be to do with private life. Some would be to do with the personality of the employee and his past.

How was the court to deal with a situation in which an employee was undoubtedly stressed and made ill by conditions of work but where that condition was part of a much larger pattern of a generally stressful or difficult life? We are of course in the realms of material contribution, divisibility and indivisibility of illness – issues which have bedevilled personal injury lawyers for decades and seem likely to continue to bedevil them. As is well known in the case of injuries resulting from more than one cause or more than one tortfeasor between divisible injuries in which damages are apportioned on the basis that the tortfeasor only pays for that amount of damage he has actually caused and indivisible injuries where the tortfeasor (or each tortfeasor) is liable for all the damage caused. Lady Justice Hale cut the Gordian Knot by stating plainly that where there was a “constellation of symptoms” all stemming from a number of different causes then “a sensible attempt should be made to apportion liability accordingly”. In addition (and possibly pre-empting criticism) she added that where the illness or disorder had been exacerbated or accelerated then the award should reflect only the exacerbation or the acceleration). Many psychiatrists take the view that psychiatric injury is, in legal terms, indivisible – indeed in Barker v O2 a different Court of Appeal, although Obiter, took the same view. (Subsequently in Browne v Kingston yet another Court of Appeal irritatingly refused to comment at all) so we have something of an impasse. What is worth considering is whether indivisibility proponents should tread carefully in the context of the law.

There is a good deal of literature available as to whether psychiatric claims fit at all into a legal framework – or whether they should. Deidre M Smith in ‘The Disordered and Discredited Plaintiff: psychiatric evidence in civil litigation notes’ that “psychiatry does not provide a stable, uncontroversial conception of causation that can be imported easily into the legal realm”. She goes on to note the scepticism of many psychiatric commentators. Jay Ziskin in “Coping with psychiatric and psychological testimony” notes that “forensic psychiatrist is a field that is long on controversy and short on data”, and Eric H Marcus in ‘Causation and Psychiatry – Realities and Speculations’ comments that “cause and effect relationships in psychiatry are more a product of speculation than scientific accuracy”. The problem goes deep and deeper still with the criticisms that have been made of DSM5. The difficulty with these views from a medico legal point is of course they undermine the whole area of study in a legal context.

All of which leads us to the interesting question of whether psychiatric claims should be justiciable at all? Unless the question as to whether an enormous social good might be achieved by substantially limiting psychiatric claims. Until then litigators should begin to recognise the wisdom of Lady Justice Hale’s pragmatic approach.

In the meanwhile what should lawyers defending such claims do? Whether looking at issues of liability, or apportionment, or acceleration ,it is essential to look at the history. Psychiatrists agree that for any assessment whether medical, legal or otherwise it is important to take a holistic approach gaining as much information about the subject as is possible. Checklist approaches and approaches that rely solely on the claimant’s own self reporting are untrustworthy.

It is essential that psychiatrists are provided with the material they need to form a holistic view of the claimant – occupational health records, general practitioner notes and other medical records, counselling notes, relevant statements from colleagues and others and personnel files. Ultimately the defendant may need to get its own records. We know however that courts are increasingly reluctant to allow proliferation of reports even in complex matters. Questions therefore have an important role therefore – either to prepare the way for an application for leave to rely on psychiatric evidence or to explore and exploit weaknesses and insufficiencies in the claimant’s evidence. A helpful article in how to approach these difficulties when putting questions to experts is set out in the article of Julian Horne of St Johns Chambers in Bristol here.