David Marshall, Partner
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Personal Injury update
Most English solicitors harbour a deep-seated fear of the Scottish legal system with its peculiar terms - pursuers and defenders, sheriffs and courts of session and such like. And at every costs forum someone with a Scottish accent is bound to stand up and irritatingly demonstrate to us that north of the border everything from speculative actions to legal aid for personal injury works just fine. However, it might well pay English lawyers to think of Scotland in what might appear to be a totally parochial English case.
Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34 concerned the issue of whether an employer could in principle be vicariously liable for harassment carried out by its employee contrary to the Prevention of Harassment Act 1997. This Act was introduced to deal with stalkers, and, as well as criminal sanctions and making provision for injunctive relief, creates a statutory tort that enables the victim to claim damages for the distress caused by the harassment. It has caught the attention of personal injury and employment lawyers in recent years because of the possibility of using it to allow a remedy to those bullied at work (but who do not suffer
discrimination) or as an alternative to stress at work claims. However, unless the employer is vicariously liable, possible actions will be limited as the perpetrator may be a man of straw. In Majrowski, the issue of vicarious liability was taken as a preliminary issue. The Claimant won 2:1 in the Court of Appeal, but there had been a strong dissenting judgement from Lord Justice Scott Baker.
It is clear from the Lords’ judgement that their lordships were also split on the principle of whether Parliament had really meant to create vicarious liability for this kind of statutory tort. Baroness Hale, in particular, having spent some considerable time circumscribing the boundaries of actionable stress at work claims (she devised the 16 hurdles for claimants in Sutherland v Hatton [2002] EWCA Civ 76), was obviously irritated by what she considers to have been Parliament’s rather shorthand approach to legislation. Lord Nicholls on the other hand could see no reason on policy grounds for denying the claimant relief against an employer who was vicariously liable.
In Lister v Hesley Hall [2001] UKHL 22 and Dubai Aluminium v Salaam [2002] UKHL 48 the House of Lords had made it clear that a wrong closely connected to the acts an employee is authorised to do is regarded as being in the course of employment. So, for example, in Mattis v Pollock [2003] EWCA Civ 887 the nightclub was liable for a doorman who, following an altercation at the nightclub, went home, armed himself with a knife, returned and stabbed a customer in the street. Thus, if vicarious liability applied in principle, most employers would be liable for harassment carried out by their employees.
It was the Scottish Judge Lord Hope who spotted the killer point. He noticed that the part of the Act which related to consequent amendments to rather arcane points of Scottish law on limitation clearly provided for the principle of vicarious liability to apply in Scotland (“that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such person”) . He persuaded his fellow judges that Parliament could not have intended to create vicarious liability for harassment in one part of the United Kingdom, but not in others. The appeal was therefore, somewhat reluctantly, dismissed and the claim against the employer allowed to proceed.
Claims under the Act in respect of bullying which caused psychiatric injury have certain advantages to normal common law or breach of statutory duty clams for workplace stress. Firstly, foreseeability of injury is not an essential ingredient to establish a claim under the Act. In stress at work claims this has become a major problem since Sutherland. Unless the employer knows of a particular vulnerability it is difficult to establish breach, but the existence of the vulnerability might impact on causation or damage. Secondly, it is not necessary to establish a medically recognised psychiatric condition. Distress is all that is needed. Thirdly, the limitation is six years and not three (which can often be problematic in stress claims) although section 33 Limitation Act discretion will not be available. As a deliberate act, rather than a negligent one, there might also be issues as to whether an employer’s compulsory employers’ liability insurance covers such claims, although in Hawley v Luminar [2006] EWCA Civ 18 it was held that an assault by a doorman on a member of the public did constitute an accidental injury for the purposes of a public liability policy.
So, were their lordships right to fear a flood of claims as a result of this judgement? Probably not, although it will undoubtedly provide a route to justice and compensation for some who have been appallingly treated in the workplace. Although bullying at work is unacceptable in the modern workplace, it is still commonplace and workplace stress is one of the most common work-related illnesses today. It will be necessary for the claimant to establish a course of conduct (Banks v Ablex [2005] EWCA Civ 173). And it is likely that as the liability falls to be determined under an Act, which also provides for criminal sanctions, it is likely, that a high degree of culpable behaviour will be required to found liability. There will also be problems if similar claims have been brought for discrimination in the Employment Tribunal. A week before the Lords’ decision, Mackay J dismissed the claimant’s action in Daniels v Metropolitan Police [2006] EWHC 1622 QB for a variety of these reasons.
For further information email David Marshall or call 020 7940 4000.
