Personal injury law

Occupational stressSutherland v Hatton; Somerset County Council v Barber; Sandwell Metropolitan Borough Council v Jones; Baker Refractories Ltd v Bishop (2002) 5 February, CA (Lords Justice Brooke, Hale and Kay)The Court of Appeal collected four unrelated appeals to consider before providing a general guidance on the application of the law to occupational stress claims.At first instance the claimants had all succeeded.

The Appeal Court overturned three of the cases while dismissing the employer's appeal in the fourth 'not without some hesitation'.The judgment of Lady Justice Hale, constructed with the assistance of the other two judges, tells us little we did not already know from a number of judgments on occupational stress since the case of Walker v Northumbria County Council, [1995] 1 ALL ER 737.

However, it does outline how difficult it is for employees to succeed by identifying a whole series of excuses for an employer to adopt to defeat a claim.

The Court of Appeal shifts the burden onto an employee to be in charge of his own mental wellbeing and to be able to gauge whether the employment is the cause of his distress and then to do something about it.

This is exemplified by point 11 of the 16 'practical propositions' outlined in the summary of the judgment, namely: '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'.

This, of course, predicates that an employee will take advantage of what may be perceived as an employer's advice service and be capable of understanding his mental injury to the extent of realising the need to do so.The judgment states the obvious, namely that the 'ordinary principles of employer's liability apply' to stress claims.

It highlights the fundamentals of duty, breach and loss and confirms that the victim is a 'primary victim', of which, following Lord Hoffman's judgment in Frost v the Chief Constable of South Yorkshire, [1999] 2 AC 455, we were aware.These are contractual claims by primary victims.

Foreseeability is highlighted as the main stumbling block for the potential claimant, with the question of whether the claimant's injury ought to have been foreseen by an employer dependant upon the 'inter-relationship between the particular characteristics of the employee concerned, and the particular demands which the employer casts upon him'.

The employer, therefore, has a responsibility to look at the nature and extent of the work being done by the employee, whether he is putting pressure on an individual employee, and whether others doing the same work are working under harmful levels of stress.

That said, there was silence as to what a 'risk assessment' within the Management (Health & Safety at Work) Regulations 1999 should consider.

Once more the Court of Appeal seems to step back from the European approach to Health & Safety to its comfort zone of the common law in deciding on employers' responsibility.In looking at breach of duty, the Court of Appeal appears to be advocating a departure from the protection that the Disability Discrimination Act 1995 affords, commenting that employers may be even more reluctant than they already are to take on people with significant psychiatric history, or acknowledged vulnerability to stress related disorders, if the standard of care expected of them is set too high.

Disappointingly, they seek to apply the rather blunt approach of Lord Justice Devlin in Withers v Perry Chain Co Ltd [1961] 3 All ER 676 to mental as well as physical injury.

It is simpler for an employee to comprehend the physical risks of performing a job before accepting it.

With mental injury the information that the employer has to explain to help 'evaluate' the risks is more nebulous and, of course, once an employee starts to suffer injury his capability to make a proper assessment in deciding whether he should continue may be impaired.Useful but predictable guidance has been provided by the court in the summary section of the judgment in the form of the 16 propositions.

Of interest are number 4, namely that no occupations should be regarded as intrinsically dangerous to mental health; number 11, concerning the confidential advice service and number 12, regarding the application of the approach in Withers.

The remainder simply state what has become settled law in relation to these cases.In conclusion, occupational stress claims are arguably now more of a concern to claimant lawyers.

Running these cases under the funding mechanism of a conditional fee agreement is foreseeably likely to put one's practice into penury.

Reading the judgment of the Court of Appeal, and its barely disguised slant to the plight of the employer, confirms that these are cases that one should be hesitant to invest in.

Of course, where this places the genuinely injured stress victim is another matter.

By Simon Allen, Russell Jones & Walker, Sheffield