Voluntary Assumption Of Tort Liability In English Law - Case Study Example

Voluntary Assumption Of Tort Liability In English Law The law on compensation for psychiatric harm has been the subject of some criticism, particularly in respect of the assessment criteria used by the courts in finding liability. Indeed, “It is widely felt that being frightened is less than being struck, that trauma to the mind is less than lesion to the body.”1 Specifically in the area of employer’s liability for negligence, the conflict between rightly compensating an employee and the difficulties faced with recognising psychiatric harm has presented the courts with the task of balancing many important factors. Coupled with policy considerations, and the prevention of fraudulent claims, the law in this area is hazardous. Previously, policy considerations played a large role in restricting employee claims, in the interests of economic and manufacture growth, as well as the principle of contributory negligence and violenti non fit injuria. More recently, the law in this area has developed into a complex system based on the obvious potential problems created by broadening or narrowing too far the limits of the law. The courts have recognised that a single, simple test to determine psychiatric harm is not sufficient, “for reasons that concern both its potentially uncontrollable nature, and political and moral parameters imposed by the structure of western open-market societies on the legal system.”2 In order to fully understand exactly what principles and tests the courts adopt, one must examine the relevant case law. The law in this area is vaguely split into: a) the psychological or physical harm actually occurring to the employee, and; b) the physical harm occurring to a third party, witnessed by the employee. In cases, where the harm directly occurred to the employee, the primary test is one of foreseeability; if it can be proven that physical or psychiatric injury was reasonably foreseeable, compensation for psychiatric harm is possible.3 Where an employee suffered a nervous breakdown at work, the courts indeed asked whether the breakdown was reasonably foreseeable, actual or probable physical harm was not relevant or necessary.4 Rose J confirms this, stating: “the employer whose system of work negligently induces psychiatric injury without any physical injury…is just as liable as one who causes physical injury.”5 Yet does the concept not appear a little simplistic? The issues surrounding the decision in Walker have the potential to open several difficulties – different jobs involve different levels of stress and risk, whilst individuals react differently to stress depending on their vulnerability. Thus the levels of foreseeability and causation are respectably different depending on the type of employment. Having recognised this, it is highly suggestible that the employer is aware of the normal stress levels to be expected in his particular workplace; an office worker would not be expected to be subjected to the circumstances of a police officer or crime scene investigator. Perhaps this vagueness found actually allows the law to become relative the each individual workplace. However, the potentially broad concept established in Page v Smith has been limited by a number of additional concepts; an obvious caution the courts saw as necessary for fears of fraudulent claims and the opening of the floodgates.6 The presence as well as the degree of foreseeability is highly important in addressing the level of culpability for a negligent employer; rarely is it a black and white case of ‘negligent or not negligent’ and the courts have addressed that there are degrees of negligence which should be reflected in the compensation gained by the employee. Again, foreseeability of psychiatric harm is extremely difficult to define and limit – how is one to be aware of this immaterial aspect? The necessary presence of risk of physical injury as set by Page v Smith does not appear to make allowance for the fortitude of the risk. Arguably, the claim for psychiatric harm is easier to establish than that for physical harm, for the former only requires a foreseeability of the latter to succeed. Thus one begins to notice the ‘patchwork’ nature of the law, for in some areas this is true, and is others it is not; indeed the case of Attia v British Gas7 appears to make it easier to claim compensation for psychiatric illness from watching damage to property than it does from seeing injury occur to a third party.8 So one enquires: what do the courts expect of the employer, so that he may not become liable for employee psychiatric illness? The focus here appears to be on the contract of employment – the courts imply a contractual duty of reasonable care based on mutual trust and confidence.9 This was further extended by Hale LJ in Sutherland v Hatton,10 who placed focus on the ‘interrelationship’ between the specific employee and the demands placed on him by the employer.11 Hale stated, that due to the differing nature of employment positions, and the individual person, such psychiatric harm as stress is largely subjective, thus it would “be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable.”12 This suggests that the courts proceed on a case by case basis, and decide depending on the particular circumstances of the individual case; a form of relativity assessment and application. The existence of a duty of care has been safely addressed – all employers must take reasonable care for the safety of their employees.13 Reasonable foreseeability of physical and thus psychiatric harm renders the employer likely to be liable for compensation. The test of foreseeability appears to be two-pronged; was or should the employer have been aware of evident signs of psychological stress, and; was or should the employer have been aware of a real risk of psychological stress?14 The burden on the employer becomes much higher if the employee has been instructed to endure more than the stated terms of his contract of employment.15 This strengthens the statement by Lord Steyn that “the duty of an employer to safeguard his employees from harm could also be formulated in contract … but such a term could not be wider in scope than the duty imposed by the law of tort.”16 And so one again is brought to the test of reasonable foreseeability in conjunction with the reasonable employer, which is an evident attempt by the courts to apply the law to each case depending on the particular employment and thus stress levels involved in the particular case before them. Hale J elaborates on this, stating the two-pronged test in more basic terms; that the indications of stress must be obvious enough for any reasonable employer to realise that action must be taken, and; the harm must be reasonably foreseeable.17 There is some discrepancy between employers claiming for stress induced psychiatric illness and psychiatric illness as a result of witnessing injury to a third party. The former claim needs only the aforementioned reasonable foreseeability of illness, as stated in Walker v Northumberland County Council,18 whereas the latter requires proof of some form of direct involvement as well as reasonable foreseeability. What exactly are the criteria for assessing direct involvement is not clear. “Consequences directly flowing from employer’s negligence”19 is required, which expose the employee to a risk of physical or psychiatric injury. Furthermore, an employee later summoned to the area of the accident must be exposed to “unusually distressing features”.20 The Law Commission has recognised this discrepancy, and labelled its existence as unclear,21 yet one can understand the higher burden in such circumstances, so that one may eliminate potential fraudulent claims and crowd of perhaps 500 employees claiming damages simply because they were in the workplace at the time. It is expected that future case law will indeed determine the requirements of direct involvement, and this has been recommended by the Law Commission.22 As far as is possible, the courts have further attempted to keep reasonable limits on the possibility of psychiatric illness claims. The case of Addis v Gramophone Co Ltd23 clearly states that damages for wrongful termination of a contract of employment are confined only to economic loss. Thus it is recognised – as a policy issue in the interests of the employer – that where compensation is provided for by statue, further compensation for psychiatric stress is not likely to be rewarded. An example of this can be found in the case of Sheriff v Klyne Tugs (Lowestoft) Ltd24, in which the Race Relations Act 197625 already provides for personal injury compensation, the courts declined to award the claimant additional compensation for psychiatric illness caused by racial discrimination. However, psychological stress suffered by unfair suspension of an employee pre-termination of contract is compensatable – Lord Nicholls has stated that such an employee is entitled to compensation “independent of his subsequent dismissal”.26 An unwarranted suspension resulting in psychiatric stress is considered by the courts to breach the implied contractual term of trust and confidence.27 This limits the compensation of employees to pre-dismissal unfair treatment independently of the unfair dismissal in itself. An employee treated or suspended unfairly who suffers psychiatric stress as a result, and suffers further economic loss as a result of unfair dismissal has suffered two ‘losses’, and is thus entitled to two ‘remedies’ separate from one another. The framework case law suggests that the tests and the principles are somewhat ‘patchwork’ – at least in that the principle of reasonable foreseeability is generally vague and slightly overlapping with other principles. However, there is evident the running theme of a broadly set principles, coupled with coinciding limitations, which allows the courts to approach the law on a case by case basis, based on the particular circumstances of each case. Perhaps it could be argued that a patchwork system is necessary here, for a single, all-encompassing principle may sacrifice flexibility in the interests of simplicity – rarely in law do the two aspects reconcile in an amicable manner. In order to arrive at the conclusion that the law is not sporadic, one must be able to arrive at a basic set of principles applicable to cases at least in principle. However, the ambit of the decision in Walker will require careful consideration – it does have the potential to expand the boundaries of the law broadly and unnecessarily. The Law Commission has stated that statutory bounds will not aid the situation28 - and indeed there is nothing to expand upon or limit for the time being. Indeed, the duty placed on the employer to manage a business whilst keeping an eye open for psychological stress risks does seem to extended the expectations of him. Yet the only boundary which can be sensibly placed here is the already adopted ‘reasonable’ concept; one should not perplex the law further by seeking more than is possible. Safe to say, the courts have and will continue to progress on a common sense principle – this is arguably the only principle to progress on for a rather new concept. Bibliography Weir,Tony (1988) A Casebook on Tort, 6th edition. London: Sweet and Maxwell Banakas, Stathis (2009) Voluntary Assumption of Tort Liability in English Law: A Paradox? (2009) InDret 4/2009 http://www.raco.cat/index.php/InDret/article/viewFile/141377/192888 Barker, Kit (1993) Unreliable Assumptions in the Modern Law of Negligence. 109 LQR 461 Law Commission Consultation Paper No 137 - Liability for Psychiatric Illness Wheat, K (1995) Law Commission - Consultation Paper No 137 - Liability for Psychiatric Injury. 2 Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/articles2/wheat2.html Pickford, V (1996) Page v Smith - A Case of Mere Psychiatric Injury? 3 Web Journal of Currrent Legal Issues http://webjcli.ncl.ac.uk/1996/issue3/pickfor3.html Mullany, NJ and Handford, PR (1993), Tort Liability for Psychiatric Damage. (Sydney: The Law Book Co) Napier, M and Wheat, K (1995) Recovering Damages for Psychiatric Injury. (London: Blackstone Press) Nasir, K (1992) Nervous Shock and Alcock: The Judicial Buck Stops Here. 55 Modern Law Review 705 Read More