Guidelines were set out by the Court of Appeal (CA) in Sutherland v Hatton [2002] IRLR when determining whether an employer is liable for psychiatric injury caused by stress at work. But what is the position when stress results in physical injury?
In Harding v The Pub Estate Company Limited [2005], EWCA Civ 553, the CA recently confirmed that the principles for determining liability for physical injury caused by stress at work are no different from those used to assess liability for psychiatric injury.
Harding was appointed to manage a pub in a rough area on the outskirts of Manchester. He was given the job because he was very experienced, and his employer wanted to make the pub profitable again so that it could sell it.
Over a period of 18 months, Harding worked extremely hard to turn things around. He had to cope with a major refurbishment and numerous problems with the clientele, including criminal activity. Unfortunately, he suffered a heart attack. Three days later, he was dismissed.
Harding brought a claim for damages for personal injury caused by stress at work. On the key issue as to whether personal injury was reasonably foreseeable, the two sides had differing accounts. Harding claimed he told his employer that he had seen his doctor, and that his working conditions were impacting on his health, while his employer said it had no recollection of any such things being said.
The county court judge preferred Harding’s evidence. The judge ruled that as Harding had made numerous complaints about his working conditions, but his employer had failed to act, it was responsible for his heart attack, and liable to pay compensation. The employer appealed.
The CA overturned the county court judgment on the basis that the judge had failed to properly consider the nature of the conflicting evidence.
Harding had no history of being a vulnerable individual. He was an experienced publican, with no history of illness, and his employer was unaware of his medical history. His GP had not predicted a heart attack, and Harding’s evidence showed that his complaints were related to the clientele of the pub and the rough neighbourhood, rather than the job’s impact on his health.
The CA confirmed that the key issue as to liability was whether the employer should have been alerted to the risk of a breakdown in Harding’s health. However, a factual analysis of the evidence showed that nothing was said to alert the employer to a potential risk. No one foresaw a breakdown, nor was one reasonably foreseeable. The emp-loyer was never given the kind of warning that required it to act.
The need to show that an injury was reasonably foreseeable is a tall order for claimants. This case serves as yet another reminder that employees have a significantly high hurdle to clear if they are to win a stress-related personal injury claim.
Key learning points for employers
A claim will succeed where it can be shown that:
- a work-related personal injury has been caused for which damages are recoverable in law
- the injury was reasonably foreseeable
- the employer was negligent in failing to prevent it occurring.
An employer is usually entitled to assume that the employee can withstand the normal pressures of the job, and is generally entitled to take what it is told by the employee at face value, unless it knows of some particular problem or vulnerability.
For an injury to be foreseeable, the indications of impending harm arising from stress at work have to be plain enough for any reasonable employer to realise that something needs to be done.
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Whether injury is reasonably foreseeable depends on what the employer knows, or ought to reasonably know, about the person concerned, such as the inter-relationship between the particular characteristics of the employee, and the demands being made.
Makbool Javaid is partner, DLA Piper Rudnick Gray Cary
