Barrister Robert Spicer reports on the important cases dealing with post-traumatic stress disorder.
Post-traumatic stress disorder (PTSD) is a serious anxiety disorder caused by exposure to a stress-inducing experience outside the normal range of work experience. This includes, for example, witnessing fatal accidents. The symptoms of PTSD may include re-experiencing the feelings aroused by the event.
Failure to identify safety measure that would have prevented harm
Most recently, in the Scottish case of Dow v Amec Group Ltd (2017), D, a labourer, claimed compensation for chronic PTSD suffered as a result of, and in the aftermath of, a fire at a power station.
A fire had broken out in a flue gas desulphurisation plant as D was working on its roof. He was trapped for approximately 15 minutes before being rescued.
D stated that there had only been one exit from the unit’s roof: a staircase which could not be used because of smoke. D alleged that Amec had failed to provide a sufficient means of egress in breach of s.53 of the Fire (Scotland) Act 2005, the Management of Health and Safety at Work Regulations 1999 and the Construction (Design and Management) Regulations 2007.
Amec argued that it had not breached any of these obligations and that there was no liability in respect of pure psychiatric injury. The company brought evidence of its procedures in respect of risk assessment and fire precautions. It did not produce any fire risk assessment in compliance with the Fire (Scotland) Act 2005.
At first instance, D’s claim was dismissed. The court accepted that D had suffered psychiatric harm but ruled that it was necessary for him to identify and prove particular features on the part of Amec that had resulted in him suffering harm. There had been more than one escape route available at the relevant time. D had failed to identify any failures and had not proved any breaches on the part of Amec. D appealed to the Scottish Inner House.
That court dismissed the appeal and decided as follows.
The foreseeability of pure psychiatric injury in primary victims who believed themselves in danger of serious psychiatric harm was widely accepted.
Section 53 of the 2005 Act intended to protect workers against personal injury and any consequent loss. There was no reason to distinguish between injury to bodily integrity and injury to mental integrity.
It was accepted that “health and safety” referred to mental and physical injury.
D had suffered harm which had been caused by fire in the workplace where smoke from a fire had prevented him from making an unassisted escape and his resulting fear gave rise to his illness.
The duty of Amec was to ensure safety so far as was reasonably practicable. D had failed to identify any fire safety measure which would have prevented him suffering harm.
Regulation 40 of the Construction (Design and Management) Regulations 2007 required a sufficient number of routes which were suitable. The assessment of suitability implied an assessment of what was reasonably likely to have been required. The fact that in the circumstances of an emergency the escape routes had not proved sufficient and suitable did not amount to a breach.
The court at first instance had found that three routes had been provided.
Duty of care not to expose employees to traumatic events as observers
Similar issues were raised in the case of Young v Charles Church (Southern) Ltd (1997) where Y, a scaffolder’s labourer, saw a workmate electrocuted when a 20ft scaffolding pole which he was carrying touched a 33,000 volt overhead power line.
Y suffered post-traumatic stress disorder. He claimed compensation from his employer. At first instance his claim was rejected because he had suffered no physical harm. He appealed to the Court of Appeal, which allowed the appeal and made the following points.
It did not matter that Y had suffered a mental rather than a physical injury. It was established that no distinction should be made in law between the two types of injury, except that matters of evidence would be different.
Victims who could claim compensation for PTSD fell into the following categories:
those involved in an incident
persons not involved but who had sufficient links with primary victims, and proximity to events, to enable them to claim as secondary victims
employees whose employers had a duty of care not to expose them to traumatic events as participants or observers.
In the present case, Y was an employee who was owed a duty of care by his employer and the employer was liable.
Suicide as foreseeable consequence
A more extreme case is Corr v IBC Vehicles Ltd (2006) where C suffered an accident at work which the employer admitted had been caused by its negligence. He underwent several operations and began to suffer from PTSD. He lapsed into deep depression and showed suicidal tendencies, committing suicide six years after the incident. His widow claimed compensation from the employers.
The Court of Appeal found the employers liable. The harm on which the claim was founded was depression, which was admitted to be a foreseeable consequence of the employers’ negligence. Suicide was not an uncommon result of depression and there was no cause other than depression for the suicide. The court made the following further points.
The employers were liable to pay compensation both for the physical damage done to the deceased and for the depression which he suffered as a result.
There was no prior ground of legal logic and no surviving ground of legal policy, for excluding suicide from the compensable consequences of actionable negligence.
To cut the chain of causation and to treat the employee as responsible for his own death would be to make an unjustified exception to contemporary principles of causation.
If liability was established for the depression, the question in each case became whether it had been shown that it was the depression which had driven the employee to take his own life. In this case, it clearly was.