Common Law: Formally Reported Cases
Duty of care
Foreseeability
Fraser v State Hospitals Board for Scotland (2000) July 11, Scottish Outer House
F, a nurse in a high security hospital, was accused of failing to carry out proper security checks. He was demoted. After six months F was diagnosed as suffering from stress and depression. He was dismissed and claimed compensation from his former employers. His claim failed on the basis that there was no reason why the employers could have bee expected to foresee the consequences of their actions.
The Court of Session made the following points:
• The duty of care owed by an employer, to take reasonable care to avoid exposing employees to the unnecessary risk of injury, extended to psychiatric damage and was not limited to physical injury
• The relationship of employer and employee created a relationship of sufficient proximity for there to be a duty of care not to cause the employee to sustain direct physical or psychiatric injury
• There was no duty to protect employees from unpleasant emotions which did not involve any form of injury at all
• It was not the duty of an employer to prevent an employee from suffering unpleasant emotions such as grief, anger, resentment or normal human conditions such as anxiety or stress
Contracts of employment
Implied terms
The common law automatically implies certain terms into contracts of employment. In relation to workplace stress, the most significant implied terms are in relation to safety at work, as follows:
• Employers have a duty to ensure that care is taken to select proper staff, to provide adequate materials and to provide a safe system of working.
• The duty of employers to take reasonable care not to injure employees’ health.
Breach of contract
Implied duty to take reasonable care
Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293, CA
J was employed as a senior house officer in the obstetrics department of University College Hospital. His contract of employment required him to work a basic 40-hour week. He was also required to be on call for up to an average of 48 hours. Therefore in some weeks he might have to work more than a total of 88 hours. The average, taken over a period, had not to exceed that total. J claimed that he had suffered stress, depression, physical exhaustion, lack of appetite and lack of sleep. His symptoms also included vomiting, feelings of desperation and suicidal tendencies. He sued his employers for failing to take care of his well-being and for a declaration that he could not lawfully be required to work such long hours.
On behalf of J, it was argued that he could not be lawfully required to work under his contract of employment for so many hours as would foreseeably injure his health.
The Court of Appeal made the following points:
• In any sphere of employment other than that of junior hospital doctors, an obligation to work 88 hours in any one week would rightly be regarded as oppressive and intolerable
• There was no technical legal reason why the employer’s discretion to call for overtime should not be exercised in conformity with the implied duty to take reasonable care not to injure their employee’s health.
Breach of Contract
Claim for psychiatric injury
Logan v Falkirk & District Royal Infirmary NHS Trust (1999) Court of Session, August 3
L was employed by F as a Grade 3 secretary. She was absent from work for a year, suffering from post-natal depression. Her employer told her that she could only return to work as a Grade 2 secretary, with a review after six months, because of concerns about her ability to carry out supervisory work.
L pursued a lengthy appeal and grievance procedure, and was appointed to a Grade 3 post six months later. This resulted in L’s depression recurring because of workplace stress. She was absent because of illness from June 1996 until April 1997. L claimed compensation from the employer for breach of contract.
The Scottish court ruled as follows:
• There was no express contractual term entitling L to return to her old job. This was a “practice” and not a binding term
• Damages for psychiatric injury could be awarded in a claim for breach of contract. There was no fixed rule that damages for psychiatric illness were irrecoverable under the law of contract
• For such damages to be awarded, there must be a causal link between the breach of contract and the psychiatric illness
• Damages would not be payable where harm suffered was too remote.