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GAZETTE
L A W B R I E F
JUNE 1996
D r E a m o nn G Hall
Stress - Employer's Liability?
"You really don't know the harm
you're doing to your body. Your
muscles are constricted. Your whole
physiology is in a high state of alert,
and over time without a break, that
makes people ill. It's like driving with
the choke out all the time. You burn
out the engine."
These are the words of
Stephen
Hersh,
professor of psychiatry and founder of a
behavioural medicine clinic in
Washington. He was writing recently
about "workaholism". Professor Hersh
observed that after eight to ten years,
workaholics begin loading the dice in the
direction of genetic illnesses and of
suppressing their immune systems,
significantly increasing their chances of
severe arthritis, chronic fatigue and
cancer. S ome of the first symptoms may
be lower back pain or migraines.
Workaholism is a complex condition; yet
many of us who would not classify
ourselves as workaholics may suffer the
same fate. Psychologist
Adrienne
Keane,
writing in
Studies in Accounting
and
Finance
(Cork Publishing) (vol. 2, no 2,
January 1995) noted that men and
women today feel increasingly affected
by stress which has reached "epidemic
proportions". The range of symptoms
was described as very broad from minor
discomfort to death, from fatigue to high
blood pressure, from dermatitis and
bleeding ulcers and headache to heart
attack.
N o one is immune from stress.
The
National Law Journal
( US) (April 8,
1996) noted in its editorial that it's not
very pleasant being a judge these days.
Mental health professionals described
observing a lot of anger and anxiety in
their judicial clients, the apparent result
of crushing caseloads, novel and
complex legal issues and increasing
media scrutiny.
Painting by Ben Shahn
Has an employer a duty to ensure, for
example, that an employee workaholic
takes all of his or her annual leave, or
leaves the office for some regular home
life? Has an employer a duty to take
reasonable steps to ensure that damaging
stress is not caused to employees? This
note explores recent developments.
Duty of Care
At c ommon law, an employer is under a
duty to provide a safe system of work
and to take measures to protect an
employee from risks that are reasonably
foreseeable. The duty is not absolute but
must be measured in the context of the
conduct of the reasonable and prudent
employer conscious of the need for
safety of his or her employees.
The law on employer's c ommon law
liability has developed principally in
cases involving physical injury. The duty
of an employer in relation to work-
engendered psychiatric injury was
explored in
Gillespie
v.
Commonwealth
of Australia
(1991) 104 ACTR 1. In
Gillespie,
the plaintiff, a former
Australian diplomat, sued the State, his
employer, in respect of a mental break-
down which he suffered in consequence
of stress created by living conditions in
Caracas, Venezuela, where he had been
posted. The plaintiff argued that such
stress and, consequently, his injury,
would have been avoided or reduced if
the defendants had, before sending him
to Caracas, prepared him by a course of
training for the severely stressful
conditions likely to be encountered.
Stress has reached epidemic
proportions. Has an employer a
duty to take reasonable steps to
ensure that damaging stress is not
caused to employees?
Miles CJ
held in
Gillespie
that some risk
of psychiatric harm was reasonably
foreseeable - but that the plaintiffs
particular vulnerability was not
foreseeable. The plaintiffs claim failed
because he was unable to establish the
link between the State's breach of duty
to take reasonable care for the safety of
employees (for example, by failing to
warn of the conditions the plaintiff was
likely to encounter in Caracas) and his
mental breakdown.
Employer's Liability for Stress
Accepted
In
Fetch
v.
Customs and Excise
Commissioners,
[1993] ICR 789, a
senior civil servant claimed damages for
negligence against his employers for
causing him to have a mental breakdown
by virtue of the volume and stressful
character of the work he was required to
do. The principle of liability for stress-
induced psychological injury was
accepted by the Court of Appeal in
Petch. Dillon LJ
considered the issue of
breach of duty:
"[UJnless senior management in the
defendants' department were aware
or ought to have been aware that the i
plaintiff was showing signs of
impending breakdown, or were
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