High Court finds lack of evidence decisive when dismissing psychiatric injury claim

The High Court recently provided a valuable decision on the issue of psychiatric injury, providing an overview of the existing law and principles in this area.

Mackenzie v AA Limited and one other [2021] EWHC 1605 (QB)

The decision followed an application by a Defendant to obtain summary judgment in respect of an alleged personal injury claim within the confines of a claim for wrongful dismissal.

The Claimant had assaulted a colleague at a work away day and after an investigation, was subsequently dismissed from his job.  In response, the Claimant pursued a claim for wrongful dismissal, alleging the assault had occurred because he was overworked and physically and mentally ill.

He claimed that the Defendants were responsible for his psychiatric injury and sought “Damages for personal injury resulting from the damage to his health and wellbeing”. The Defendants submitted that the Claimant had not disclosed reasonable grounds for bringing his personal injury claim and made the application.

The judge found that the Claimant was unable to prove the Defendants ought to have known he was suffering from psychiatric conditions and the Defendants were granted summary judgment on that issue.

Additional applications were also made in respect of other issues forming part of the overall claim for wrongful dismissal.  This article does not consider those applications as they are not relevant to the issue of psychiatric injury.

Background

At the time of his dismissal the Claimant suffered from several physical health conditions. By early/mid 2017, the Claimant alleged that due to an exceptionally challenging workload, the Claimant had become overstressed, and this had caused his physical and mental health to deteriorate. The Claimant alleged that the Defendants were aware of the effect upon his health. He was therefore unable to exercise full self-control. It was the Claimant’s case that his medical condition which led directly to the incident was caused by the Defendants’ breach of duty as they failed to take reasonable care for his safety and health.

Further, the Defendants’ treatment of the Claimant after the incident and his subsequent dismissal exacerbated a deterioration in his mental health and that the Defendants were responsible for his psychiatric injury.

The Claimant referred to Hatton v Sutherland [2002] in which sixteen principles were outlined relating to an employer’s potential liability in a psychiatric injury claim.

The Claimant stated he had been given several very challenging objectives and consequently was working intensively. He claimed that he had experienced some loss of memory and/or concentration in the course of his work and exhibited outbursts of temper and the Defendants were aware of this. The Claimant also alleged that the board and members of senior management were aware he had become overstressed and of the deterioration in his physical and mental health. He claimed that prior to his dismissal the Defendants had clear evidence of his symptoms. He claimed it was wholly foreseeable that the Defendant’s treatment led to an exacerbation of his condition and delayed his subsequent recovery.

The Defendants submitted that the Claimant had not disclosed reasonable grounds for bringing his personal injury claim and he had no arguable case. He had provided no medical evidence in respect of any psychiatric illness or known risk of him suffering that injury. The Defendants relied upon the fact that the Claimant was the most senior employee and would therefore set his own working practices. In addition, the Claimant had not discussed any psychiatric illness with his employer before the incident.

Judgment

Deputy Judge Metzer’s judgment outlined the issues on foreseeability raised in MacLennan v Hartford Europe Limited [2012] by Hickinbottom J, where it was said the foreseeability threshold is high and may prove a formidable obstacle on the facts of a particular case. Hickinbottom J in MacLennan outlined that to be successful a claimant must show that his employer knew or ought to have known that as a result of stress at work there was a risk the claimant would suffer harm, and the claimant must then show that the employer knew or ought to have known that due to stress at work there was a risk the claimant would suffer harm of the kind he in fact suffered.

The judge found it “to be of some significance” that neither party was able to provide details of any authority where an occupational stress claim had succeeded, absent an express warning.

To succeed with his personal injury claim the Claimant required a finding that the Defendants’ breach of contract/duty caused his psychiatric condition, and the burden was upon him to show the Defendants had actual or constructive knowledge of an imminent risk of psychiatric injury prior to the incident in 2017.

Deputy Judge Metzer found there was “simply no evidence” that the Claimant or his doctor provided the Defendants with “anything to suggest he was suffering from a psychiatric condition.” According to the Claimant’s expert, the Claimant’s family was not aware of any relevant deterioration in his medical condition. The judge found that the evidence showed the Claimant as being someone “stoical and quite driven” who “responded well to the challenges of hard work”. The loss of memory/concentration and outbursts of temper/emotion fell “far short of being able to establish a realistic, as opposed to a fanciful prospect of proving that the Defendants were, or should have been on notice that Claimant was suffering from the recognised psychiatric condition, or at such imminent risk.”

According to the Claimant’s expert report it was the incident itself which resulted in the “unmasking of the symptoms to become manifest” and the Claimant “did not ask for help as this is not his personality type”.

In conclusion the judge found that the Claimant “failed to establish any reasonable grounds, or reasonable prospect of proving” that the Defendants ought to have known he was suffering from the psychiatric conditions and the Defendants were granted summary judgment.

What can we learn?

• This is a prime example of the significant hurdle faced by Claimants in proving foreseeability in psychiatric injury cases. In this case the Claimant sought to explain his behaviour by retrospectively alleging that he was overworked and that his employers were on notice of this and the impact on his health. There was no such evidence to support that contention.
• In cases of this nature, depending on the specific nature of the claim, there should be a thorough investigation into the circumstances and whether the Claimant can prove foreseeability.
• When considering foreseeability of a psychiatric injury an employer is entitled to assume that an employee can withstand the normal pressures of the job unless it is known an employee is at particular risk of injury or some other problem or vulnerability. The duty of an employer is not triggered in circumstances where there is awareness that the employee is experiencing stress at work. The employer has a duty to act only when the indications of imminent harm arising from work are clear enough for any reasonable employer to realise it should address the issue. 
• It is anticipated that the number of psychiatric injury claims will increase. Mental health issues are topical and there is now much less stigma associated with reporting such issues.  The impact of the pandemic, furloughing of some staff possibly resulting in higher workloads for others coupled with redundancies make this fertile ground for Claimants. However, they remain difficult for Claimants to prove. Whilst expensive to defend, nevertheless, each case should be investigated and assessed on its own merits and, where appropriate, a robust defence maintained.