In the first two parts of this series (part 1, part 2) we looked at how the Courts still regard the 2002 judgment in Hatton –v- Sutherland as the definitive statement on the law for liability for stress-induced psychiatric injury in the workplace. However, although still commanding respect in relation to breach of duty and foreseeability, it appears that the old idol may have feet of clay when it comes to calculating financial compensation for such injuries.
In Easton –v- B&Q earlier this year Mr Easton failed to persuade the High Court that the psychiatric illness he suffered was a foreseeable consequence of the stress he was under at work. He had a good record of achievement in the industry, had a reasonable level of support and had not complained about stress in any way recognisable as such. There was no history of psychiatric illness among others in similar roles at B&Q. As a result, he lost his personal injuries claim and the High Court was not obliged to consider issues of remedy. Gratuitously, however, it did so anyway, rather cruelly dangling a £17,500 figure in front of Mr Easton as the sort of money he could have had if only (paraphrased significantly) he had been less of a brave soldier in trying to deal with his workload without complaint.
The High Court in Easton set out the two main remedy principles from Hatton:
- Where the harm has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to its wrongdoing, unless the harm is truly indivisible.
- The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the Claimant would have succumbed to a stress-related disorder in any event.
The second principle remains valid. If the evidence were that the individual would have suffered serious psychiatric injury in a year’s time anyway from circumstances which did not amount to a breach of duty by the employer, then his claimable suffering and loss of earnings would be limited to that period. If there were a 50% chance that he would have done so, then his losses after that year would be reduced by half. All very sensible.
However, the first Hatton principle is more difficult. It has been disapproved on a number of later cases. What if the employee arrives at work already stressed to the hilt – due to money or marital problems, or commuting on Thameslink, for example – and it is only some very small breach of duty by the employer which tips him over the edge into full-blown psychiatric illness? Where the complaint is indivisible, as in many stress-related cases (because the body senses only the excessive pressure and makes no distinction in its reaction between that which is lawful and that which is not), how do you apportion liability? The employer may say that it is unfair to have to pay full damages for an illness to which it contributed only very partly. Equally, the employee may say that although he was stressed before the employer’s breach of duty, he was not actually ill. But for that breach of duty he would not have become ill at all, and so the employer should be wholly liable for it. Even though it may be a small thing in itself, the “tipping factor” must be a material contributor to the illness even if there were lawful stressors already in existence, or if the employee already had a vulnerable personality.
Once the employee has surmounted the breach of duty and foreseeability hurdles, therefore, the onus shifts sharply to the employer. In many stress-related mental health cases the illness will indeed be indivisible. If the employer cannot then show that pressure at work was nothing more than a negligible contributor to the illness, it is likely to be liable for the lot.