Unlike the effects of falling off a ladder, injuries arising from occupational stress are difficult to foresee and tend to occur over a substantial time frame. Explaining why the employer was responsible is also relatively straightforward i.e. he shoud have used a scaffold or a harness. Not so with occupational stress claims, which are unique in personal injury litigation in that they often have an involved narrative. In that respect they have more in common with employment tribunal claims. How you present the facts and apply them to the law requires editorial judgment, and may determine the success or failure of a case. This is what is meant by the term ‘framing the case’.
The following tips on the topic of drafting particulars of claim are taken from a workshop delivered for the benefit of Oakwood Solicitors, who specialise in claimant occupational stress claims.
Stick to the facts. In particular, establish what happened to the claimant, who knew about it, how and when. The opinions of non-expert witnesses are inadmissible. It is therefore irrelevant to describe what a person may have thought or felt at any given point in time.
Tell the story, and keep it tight. If you want to get a judge offside then just write an impenetrable account of what happened and leave him or her to figure it out. Alternatively, you could describe the factual matrix in a readable manner than has a good flow and is easy to appreciate on first reading.
Set out the employer’s actionable duties. Citing inapplicable regulations and directives does not help the claimant’s cause, nor does rehearsing the HSE’s guidance. For example, if the case is about harassment cite the Protection from Harassment Act 1997, then set out the employer’s common law duties and explain why it is vicariously liable for the actions of the claimant’s co-workers.
Nail foresight from the outset. As the issue of whether the employer foresaw a real risk of psychiatric injury in the claimant is often ‘the threshold question’ answer it properly and from the outset. Explain who knew about his or her mental state, what they knew, how and when.
Only allege breaches of duty that you are able to prove. This may be obvious, but cut and paste particulars are unpersuasive and cloud the judge’s view – they need to be bespoke. It is better to dedicate three or four paragraphs to what should have happened, and how it would have made a difference to the claimant, than to take a vague ‘scatter gun’ approach containing dozens of broad allegations.
Only allege breaches of duty that were causative. Again, this sounds self-evident, after all, why would you do otherwise? However, it’s rarely so simple. The best approach is to draft the particulars of breach and seek the opinion of a psychiatrist as to which, on balance, caused or materially contributed to the illness suffered. There’s no point in alleging a failure to provide counselling when the expert states that it wouldn’t have made a jot of difference absent a dramatic reduction in the client’s workload.
Ensure that the breaches that you allege dovetail with the story. Does the narrative account contain material that is irrelevant to whether or not the employer was in breach of duty? More importantly, does it omit some fact or detail that is key to proving your case? Always check that the factual background explains all that it has to, and no more.
Include a summary on the cover page. This is required whenever the particulars of claim extend to 20 pages or more, but is often best practice in any stress claim. The point is to explain what the case is about, and more importantly, why you should win. The exercise is probably lost if the summary extends to more than a page.
Keep It Simple Silly! The particulars of claim are supposed to be a concise explanation of the claim, so is it really necessary to set out all that happened before a time when foresight is established? A verbose and needlessly complicated explanation for why the employer is possibly liable helps nobody, least of all the claimant. Always stay focused on the task of establishing the facts and explaining why they prove the mental illness suffered was necessarily the employer’s fault.
Finally, don’t take my word for it. Instead read the stinging rebuke of Lady Justice Thirlwall in Marsh v Ministry of Justice: “The amended particulars of claim is 38 pages long. The amended defence runs to 114 pages. Both pleadings are far longer than was necessary to identify the issues in the case. The defence in particular includes unnecessary detail, much of which is irrelevant to the claimant. Had proper focus been applied at an earlier stage the trial would have taken at most 8 days, instead of the 15 that it occupied.”