The Gazette 1996

GAZETTE

JUNE 1996

L A W B R I E F

D r E a m o nn G Hall

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 [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: In Fetch v. Customs and Excise Commissioners,

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." 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. These are the words of Stephen

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

"[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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