Rorrison v West Lothian College and Lothian Regional Council (IDS Brief 655)
Fraser v State Hospitals Board for Scotland (2000) IRLR 672
Penelope Hatton v Terence Sutherland, Chairman of the Governors of the St. Thomas Beckett Roman Catholic High School 7 August 2000 (unreported)
Damages are only recoverable for stress-related illnesses in a personal injury claim where there is a recognised psychiatric disorder. An employer's duty to take reasonable care to prevent psychiatric harm to its employees does not extend to the prevention of common place negative emotions or normal human conditions such as anxiety, stress, resentment or anger.
Furthermore, the employers' duty to prevent psychiatric harm or injury is not a general one but will only arise if it is reasonably foreseeable that negative emotions or human conditions such as stress or anxiety are liable to be suffered to such a degree as to constitute a psychiatric disorder.
The above confirmation of the law was given by the Court of Session in Scotland in both the cases of Rorrison and Fraser.
Rorrison was a nurse employed at West Lothian College with welfare duties and in charge of first aid. A new personnel officer became her line manager. Soon afterwards she and two other colleagues marched Rorrison to the first aid room. One colleague stood by the door and the other paced up and down shouting at Rorrison. Although the new personnel officer had no experience in first aid she criticised and humiliated Rorrison for keeping asthma inhalers in the cabinets, something that had previously been authorised by the College Registrar. Rorrison felt trapped, threatened and embarrassed. The new personnel officer then took charge of the first aid cabinet, removed other of Rorrison's duties without warning or explanation and generally undermined her. Her GP diagnosed her as suffering from anxiety/depression and signed her off work for six weeks. She was referred to a community psychiatric nurse.
When Rorrison returned to work, the new personnel officer placed her to work in personnel and gave her clerical and secretarial tasks and treated her as an office junior. Rorrison complained to her Line Manager who excused the personnel officer on the basis that she was "new". She began a campaign of criticising Rorrison and regularly harassing her in her work. This pattern of behaviour continued so that eventually Rorrison's first aid tasks were reduced to supplying sticking plasters. When Rorrison complained a second time nothing satisfactory was done. Rorrison suffered further psychological distress, anxiety, panic attacks, depression, loss of self confidence and self esteem. She was prescribed a beta-blockers. However the Court held that there was no evidence that she was suffering from a condition recognised by a psychiatrist or body of psychiatric opinion as constituting a psychiatric disorder. Rorrison's depression was not clinical depression but rather a low mood.
Rorrison had made no reference to any disorder recognised in the two main diagnostic classificatory systems used by the psychiatric profession: DSM-IV and ICD-10 and she had not been treated by a psychiatrist.
An employer's duty to take reasonable care not to damage an employee's physical health extends to damage to mental health but the Court held that the question of foreseeability of psychiatric injury/disorder is critical to the existence of the duty of care. Rorrison had complained to both the personnel officer and her manager that she was off work because she was anxious, upset and angry and felt pressure and frustration in her work.
However the Court held that this did not mean that the employer ought to have foreseen that Rorrison was at a material risk of suffering psychiatric illness or injury in consequence of their behaviour towards her.
Although the employer might have foreseen that she was dissatisfied, frustrated, embarrassed and upset "this is a far cry from suffering a psychiatric disorder". Suffering such emotions as well as stress, anxiety, loss of confidence and low mood because of problems at work was a normal part of human experience and the Court concluded that a duty of care to protect against psychiatric disorder can only arise if there is some specific reason in a particular case which would make the occurrence of a psychiatric disorder reasonably foreseeable "by an ordinary bystander rather than by a psychiatrist". Therefore, the claim failed not only because there was no proper psychiatric injury but also because it was held that a duty of care did not arise as a proper psychiatric injury could not have been reasonably foreseen.
In Fraser it was alleged that the employer's management style (resulting in suspension from a ward, disciplinary procedures, demotion and renewed accusations) had caused a psychiatric illness. In this case there was no dispute that Mr. Fraser, a nurse, had developed a depressive disorder and clinical depression had been diagnosed (for which compensation would have been recoverable), but the claim failed because the employer could not have foreseen that its conduct might produce such a reaction.
Fraser was undoubtedly known to have been upset by the actions of management but at no time prior to his stopping work did he show any signs of being likely to suffer any psychiatric harm. He did not complain of excessive stress and he was not seen by management to be operating under excessive stress. It was re-affirmed that for the duty to take reasonable care to avoid unnecessary risk of psychiatric harm to arise, there had to be a situation where there was a foreseeable risk of some form of recognised psychiatric illness and not simply general anxiety or depression. There is no duty to prevent an employee from unpleasant emotions such as grief, anger and resentment or normal human conditions such as anxiety or stress which does not involve any form of "injury" at all, and were too remote from the concept of injury. The question of foreseeability of psychiatric illness was one of fact to be resolved in the circumstances of each case. This would be determined by the Judge putting himself in the place of the employer and deciding whether he, as a reasonable employer, would have foreseen the risk. If there were a foreseeable risk, then it was for the employer to address that problem and determine what could be done to minimise the risk.
Since these two cases there has been one success. In Hatton v Governors of the St. Thomas Beckett High School, the Liverpool County Court stated that "the effects of increasing pressures in the professional work place is or ought to be as well recognised as the dangers of seriously defective paving stones in an busy thoroughfare for pedestrians". Particularly in the professional work place, increasing and renewed demands are made on workers day by day and "the fact that one person may be able to absorb such a degree of stress does not in itself absolve the employer from being liable where another person performing similar work succumbs to such stress".
The case of Hatton is under appeal and although the case is welcome news for Claimants, it does not alter the burden the Claimants have of proving that they have sustained a proper recognisable psychiatric injury or disorder which the employer could have reasonably foreseen. Each case will turn on its own, individual facts.