Failure to risk assess is not the full picture

A recent case has shown that a failure to risk assess need not be fatal to defending a stress at work claim, writes Angela Williams.

Risk assessment is a familiar concept to personal injury lawyers – more familiar in the theory than the practice it seems, from bitter experience. It crops up less frequently as a significant element in stress at work claims. Bailey v Devon Partnership Trust (2014) QBD Exeter (HHJ Cotter QC) is a case that deals with the issue and reminds us that a failure to risk assess need not be fatal to a defence of the claim.

The claimant was a psychiatrist who complained of over-work, a lack of administrative and management support, too much organisational change and an inability to obtain assistance with various reports she had to write to health agencies.

There were two distinct periods covered by the claim. First, the claimant had six months off when she was admitted to hospital with a heart condition. It was alleged the pressures of the job led to a severe depressive disorder and that the heart condition had been brought on by stress. The second period commenced when the claimant returned to work under a plan approved by her treating psychiatrist. She subsequently complained that the employer failed to abide fully by that return to work plan, specifically she was unable to take as much holiday as she wanted and had to supervise a trainee doctor which she found was an imposition to her workload.

The employer’s legal team defended the case on the basis of a lack of foreseeability of psychiatric harm arising for the first breakdown. In respect of the second period, the defendant was of course on notice of the claimant’s vulnerability, but there was still a lack of foreseeability of the particular psychiatric harm arising in the particular circumstances. The claim was also defended on causation.

The claimant alleged that her line manager should have completed a risk assessment which was a document annexed to the employer’s stress reduction policy. She argued that this could have led to indications of impending harm to her health arising from stress at work being obvious to the employer. The judge found that there was a breach of duty in not completing this assessment but, even if it had been completed and carefully scrutinised, the heart condition which led to an acute event necessitating a stay in hospital would not have been avoided. Further, and most importantly for occupational stress claims, the judge also found that a risk of imminent breakdown would not have been identified. 

The claimant’s reticence about giving details or full information about her health was to her detriment in this claim. She had been prescribed medication and was seeing a psychotherapist but failed to tell her employer about this. The judge found that she would not have answered any assessment questions in such a way as to give rise to a foreseeable risk of psychiatric injury so her breakdown would not and could not have been prevented. Consequently, there was no specific breach of duty leading to the direct causation of stress. This case highlights the important role that risk assessments play in the employment context but it also shows how important it is to recognise their limitations. The importance of assessments was stated by the Court of Appeal in Allison v London Underground (2008) although in that case Smith LJ recognised that failure to carry out an assessment will never be the direct cause of an injury.

The case is also helpful to those employers who are undergoing significant changes, or are under-funded as the court accepted that resource issues and the change of management were outside of the control of the defendant as they were imposed nationally.

Comment

This is another example of a case where failure to risk assess has not been fatal to the defence of the claim. This will come as welcome relief to those employers who may not have completed assessments or followed their own stress policies to the letter. As long as the failure to do this does not lead to a claimant’s breakdown, a case can be won purely on causation. The judge went on to say that even if an assessment had led to some immediate reduction or alteration to the claimant’s workload, it would not have prevented the breakdown. Hatton v Sutherland (2002) remains the key case to consider in occupational stress claims. The threshold question of whether psychiatric injury was foreseeable is the key question to ask. Foreseeability of workplace stress is not sufficient. This threshold question is not overridden by the need to consider the threshold question in each case.

Angela Williams is an Associate at the Exeter office of Browne Jacobson and specialises in defending stress claims. She can be contacted on 01392 458720 or This email address is being protected from spambots. You need JavaScript enabled to view it.. Browne Jacobson acted for the defendants Devon Partnership Trust. Counsel for the Defendant was Andrew Warnock QC and Jack Harding of 1 Chancery Lane.