Supreme Court allows appeal dismissing claim for psychiatric injury caused by workplace bullying due to lack of medical evidence linking depression to harassment.

SUPREME COURT

Appeal No. 143/2005

Denham J.

Geoghegan J.

Fennelly J.

BETWEEN/

MATT QUIGLEY

PLAINTIFF / RESPONDENT

AND

COMPLEX TOOLING AND MOULDING LIMITED

DEFENDANT / APPELLANT

JUDGMENT of Mr. Justice Fennelly delivered the 22nd day of July, 2008

1. This appeal concerns an award of damages for psychiatric injury (reactive depression) found to have been caused by

bullying or harassment in the workplace. In a judgment of 9th March 2005, Lavan J in the High Court found that the

plaintiff had “suffered personal injury as a direct consequence of a breach of the defendant's duties as employers to

prevent workplace bullying.” The learned judge, following a separate judgment on damages, awarded to the plaintiff the

sum of €75,000 for general damages together with the sum of €773.94 special damages.

2. The defendant appeals on two grounds: firstly, that the evidence, though uncontradicted, did not bear out the plaintiffs

complaints of bullying; secondly, that there was no sufficient evidence of a causal link between the bullying which the High

Court judge found that the plaintiff had been subjected to and the depression his doctor found him to have suffered. The

defendant also appeals against the quantum.

3. In spite of the comparative novelty of the cause of action, the Court has not been asked to decide any principles of law.

The parties were ad idem as to the nature of the wrong of harassment or bullying and the standard which should be applied.

The facts

4. The Plaintiff commenced employment with a predecessor company of the defendant at its premises at Kells, County

Meath, in or about August 1977. The defendant terminated his employment by dismissing him on or about the 18th October

1999. The defendant, which is no longer in business, carried on the business of assembly of computer parts.

5. The plaintiff, who lives in Kells, had been employed as a factory operative for more than twenty years before the

defendant company took over the business in 1998. The defendant appointed a new American plant manager, Mr. Ron

Skinner. Most of the plaintiff's complaints relate to his treatment at the hands of Mr Skinner from 1998 until the termination

of his employment on 18th October 1999.

6. The learned trial judge cited as amounting to uncontradicted evidence the particulars of the harassment alleged by the

plaintiff in the statement of claim. His approach was to accept as established the matters particularised as follows:

“(a) During the month of July/August in 1998 the Plaintiff was subjected to humiliation at the hands of the

Defendant Managing Director, Denis Hampton, following his refusal to accept a voluntary redundancy package

which had been offered to him by John Dory, on behalf of the Defendant. During a meeting on the issue, the

Plaintiff enquired of John Dory as to what was the reason behind the fact that he was the only member of staff

to be offered voluntary redundancy, stating that it was the principle that interested him. John Dory stated "the

principle, don't make me laugh", at which Denis Hampton laughed also.

(b) The Defendants its servant or agents made humiliating and demeaning reference to and about the Plaintiff,

such as on the 6th of April 1999, when Ron Skinner informed Fidelma Browne, an operative into the Defendant

Company, that the Plaintiff and a colleague Seamus Reilly, would be retaining their Grade 11 rate of pay, and

stated "don't worry, I'll sort out the granddads". On another occasion, after the Plaintiff had through exasperation

resulting from the bullying and intimidation at work, raised his voice to a colleague, Ron Skinner asked Seamus

Reilly "Do you think that Matt talks to his wife like that. Do you think she would accept being spoken to like

this?

(c) The Plaintiff was subjected to excessive and humiliating scrutiny by the Defendant's Plant Manager, Mr. Ron

Skinner. He often stood for up to 30 minutes on a box approximately 8 feet behind the Plaintiff's work station,

with the effect of intimidating the plaintiff. He also made comments about the Plaintiff's work, for example

stating to Joe Power (an operative in the employ of the Defendant ) that he would have to give the Plaintiff

"some broom training", suggesting that the Plaintiff was not capable of the most basic duties, when in fact he had

received two awards for cleanest work area from previous management. The plaintiff felt that the purpose of this

intimidation and scrutiny was that Ron Skinner was engaging in a campaign to seek justifications for not paying

the Plaintiff his Grade 11 rate of pay.”

7. Although there was some evidence in respect of paragraphs (a) and (b), each of those seem to relate to somewhat isolated

incidents and there are at least some problems of proof relating to parts of those matters. In the event, those headings do not

require analysis by the Court. It is clear that the overwhelming focus of the plaintiff’s complaints related to paragraph (c)

and the behaviour of Mr Skinner.

8. The plaintiff claimed that he was being over-scrutinised by Mr Skinner. A flavour of this is given by the following

quotation from the plaintiff’s evidence:

“Well, when I would be working away doing my job on assembly with 5 or 6 other employees doing the same

job Mr Skinner would come and position himself on some platforms behind me and would be there for half an

hour, 45 minutes, daily, watching me.”

9. He became aware of this when colleagues told him of it. Then he was conscious of it. Mr Skinner would be six or seven

feet behind him. He would “take up the same stance and stand there with his arms folded just watching me.” This made the

plaintiff feel very uncomfortable. The behaviour continued two or three times a week even after the plaintiff had complained

through his shop steward. The plaintiff described the attitude and behaviour of Mr Skinner in the following answers:

“His attitude was that I was not capable of doing the assembly the way they wanted it done. He would tell the

charge hand in question that any of my work was to be looked at, you know, over scrutinise and check this that

and the other. I was so nervous with him watching me that I would make mistakes, because I was aware he is

watching me…”

“If I was doing silk screening for instance he would say “I do not know why you are doing that, that is no

good. You can see that is no good, there is a scratch on the surface” whatever a screw missing or something.

Another day when I would leave …… things out and not do them he’d say, “look you could have done that and

we can get that rectified. Go back on that” you know. So no matter what I was doing it just was not right for

him”

“……when I would go to get a drink of water he would be standing at my section ……and he would be tapping

the door as much as to say well there is nobody working here……I would leave down my drink of water and

come over thinking he wanted to speak to me and when I’d come over he would walk off.”

10. The evidence of the plaintiff showed the behaviour of Mr Skinner to combine persistent watching, constant niggling

criticism, failure to respond or communicate and inconsistency. As an example of the last, there was evidence of Mr Skinner

telling the plaintiff to send a product out to a customer, though the plaintiff though it was defective and told him so, and Mr

Skinner blaming the plaintiff when the customer returned the defective goods. Furthermore, the plaintiff’s evidence was

amply supported by the evidence several other employees. It appears that the plaintiff was singled out for this treatment.

The defendant’s argument on the harassment issue

11. Mr Lyndon McCann, Senior Counsel, accepted, on behalf of the defendant, that an employer owes a duty of care to his

employees at common law not to permit bullying to take place. Both parties accepted the definition of “workplace bullying”

at paragraph 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the

Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as an accurate statement of the employer’s obligation for the

purposes of this case. That definition is:

“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or

otherwise, conducted by one or more persons against another or others, at the place of work and/or in the

course of employment, which could reasonably be regarded as undermining the individual's right to dignity at

work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work

but, as a once off incident, is not considered to be bullying.”

12. Mr McCann submitted, and I would accept, that bullying must be:

· Repeated;

· Inappropriate;

· Undermining of the dignity of the employee at work.

13. Mr Patrick Hanratty, Senior Counsel, for the plaintiff emphasised the strength of the evidence and the fact that the

plaintiff’s complaints were supported by the evidence of fellow employees. He laid particular emphasis on the fact that the

complaints were not acted on by management. He said that they constituted a breach of the employer’s direct duty of care.

It is not a case of vicarious liability.

14. The evidence of treatment of the plaintiff at the hands of Mr Skinner was fully accepted by the learned trial judge. In

fact, it was, as he said, uncontradicted. Presumably, this was because the factory was no longer in business by the time of

the hearing and Mr Skinner had no doubt returned to the United States. Whatever the reason, the evidence was

unchallenged and the trial judge was entitled to accept it as true. I am satisfied that it amply meets the criteria of being

repeated, inappropriate and undermining of the dignity of the plaintiff at work. Since the definition of workplace bullying

taken from the Code of Practice laid down in the statutory instrument has been accepted by the defendant as an accurate

statement of the common law duty of care, it is not appropriate to refer to other authority.

15. Mr Skinner’s treatment of the plaintiff represented a unique amalgam of excessive and selective supervision and scrutiny

of the plaintiff, unfair criticism, inconsistency, lack of response to complaint and insidious silence.

16. The decision of the learned trial judge cannot be faulted in this respect. I would reject this ground of appeal.

The causation issue

17. The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as

a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to a

identifiable psychiatric injury. The learned trial judge found that the plaintiff had “suffered personal injury as a direct

consequence of a breach of the defendant’s duties as employers to prevent workplace bullying.” He awarded damages to

the plaintiff for psychiatric injury, in the form of depression. On the question of causation, he stated:

“The plaintiff has offered uncontradicted evidence as to the immediate effect of the harassment on his state of

health. Evidence has been offered to prove that the injuries of which the plaintiff complains had their root in

the treatment of him by the servants of the defendant during his employment with the defendant.”

18. He also said that he accepted the evidence of Dr Coffey, the plaintiff’s general practitioner, who had given evidence on

his behalf. On the other hand the learned trial judge did not refer to any of the detail of either the plaintiff’s evidence or that

of Dr Coffey or her medical reports.

19. Mr McCann submits that the evidence simply does not bear out the contention that the depression from which the

plaintiff suffered was causally linked to the harassment or workplace bullying.

20. At this point it is appropriate to recall that the plaintiff was dismissed from his employment in October 1999. He

commenced proceedings against the defendant pursuant to the provisions of the Unfair Dismissals Acts. He was successful

in those proceedings before the Rights Commissioner and, on appeal by the defendant, before the Employment Appeals

Tribunal, whose determination was dated 7th February 2003. But the defendant had ceased trading in July 2002. The effect

of the order of the Employment Appeals Tribunal was that the plaintiff was entitled to payment up until that date and a

redundancy payment arising on the closure of the factory.

21. It is agreed that the plaintiff is not entitled in these proceedings to recover damages for any personal injuries suffered as

a consequence of his dismissal from his employment.

22. Dr Coffey’s evidence must be read with her medical two reports. The plaintiff first attended Dr Coffey on 8th January

2001. He told her that he had been dismissed from his job in October 1999 and that he had been suffering from depression

for six months before his visit to her. He said that he had won his case for unfair dismissal (obviously referring to the

decision of the Rights Commissioner) but that the company were appealing the decision and the uncertainty of waiting for a

date was adding to his anxiety. Dr Coffey stated, in her report (date 11th June 2001 but related to the visit of 8th January of

that year) that the plaintiff “had become increasingly anxious about his impending case” and that “his symptoms of

depression had intensified.” She concluded that the plaintiff had “suffered from a moderately severe depressive episode

arising directly from his industrial relations problems.”

23. In cross-examination, Dr Coffey agreed that the plaintiff’s complaints related “to the fact that he had lost his job.” She

referred to “the delay in the appeal date, the anxiety that surrounded that delay.” She had not recorded any complaint that

the plaintiff had had been bullied or harassed at work and agreed that his difficulty was not attributed to such an origin.

24. Dr Coffey prepared a second report dated 24th March 2003 for the purpose of the litigation. She then mentioned that

the plaintiff had a pending case against his employer “re harassment,” but did not otherwise refer to that issue. That report

makes no mention of the cause of the plaintiff’s depression.

25. The picture presented by the medical evidence then is consistent only with the plaintiff’s depression having been caused

by his dismissal and subsequent unfair dismissal proceedings and there is no medical evidence of a link with the harassment.

26. This is consistent with the plaintiff’s own evidence. He said: “…after all these appeals, had been heard…I realised that I

wasn’t going to get my job back then it hit me……and then I went to the doctor.” He said that it was then that it “affected

[him] mentally.”

27. Although the plaintiff elsewhere in his evidence described Mr Skinner’s behaviour as having shocked him and feeling

very uncomfortable, pressurised and useless as an employee, he did not say that he had suffered symptoms of depression.

28. It is clear both from Dr Coffey’s evidence and that of the plaintiff that he did not consider himself to have been affected

mentally until after his dismissal. He did not go to a doctor at all until some fourteen months after that event. He then said

that his depression had started six months previously. The doctor gave no evidence linking that condition to the harassment

or workplace bullying.

29. Consequently, the plaintiff has not discharged the burden of proving that his depression was caused by his treatment

during his employment. It follows that, although the plaintiff’s complaints of bullying or harassment have been upheld, and

his employer was in beach of its duty of care to him, the appeal should be allowed and the plaintiff’s claim dismissed.