Hurley v an Post

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 16 March 2018
• Neutral Citation: [2018] IEHC 166
• Docket Number: [2009 No. 2741 P.]
• Court: High Court
• Date: 16 March 2018

BETWEEN

CATHERINE HURLEY

PLAINTIFF

AND

AN POST

DEFENDANT

[2018] IEHC 166

[2009 No. 2741 P.]

THE HIGH COURT

Tort – Damages & Restitution – Psychological injuries – Workplace harassment – Assessment of damages – S. 8 of the Safety Health and Welfare at Work Act, 2005 – Mitigation

Facts: The plaintiff filed a claim for damages against the defendant for negligence and breach of duty arising out of bullying by co-workers following a workplace incident. The plaintiff claimed that she had suffered long-term psychological problems due to the subject incident while the defendant argued that the plaintiff had a history of depressive illness, which aggravated the pre-existing symptoms.

Mr. Justice McDermott awarded general damages for pain and suffering for the relevant time period along with agreed special damages to the plaintiff. The Court also awarded damages for further loss of earnings to the plaintiff. The Court noted that the plaintiff's continuing symptoms of PTSD depression and anxiety were triggered initially by an incident and the subject incident had also contributed to the plaintiff's deteriorating condition.

JUDGMENT of Mr. Justice McDermott delivered on the 16th day of March 2018

1 The plaintiff's claim is for damages for negligence and breach of duty against her employer arising out of bullying by co-workers following an incident which occurred at her workplace on 26th July, 2006. The issue of liability has already been determined by the court in a judgment delivered on 6th October, 2017. This judgment addresses the damages to which the plaintiff is entitled as a result of the personal injuries, loss and damage caused to her by the defendants.

2 The main facts of the case are set out in the earlier judgment of the court. The plaintiff was born on 6th October, 1964. She is a married lady and has two children. She is 53 years old. The court in its judgment on liability was satisfied that the defendant employer was liable for the bullying and harassment which the plaintiff experienced from her co-workers in the course of her employment of which it was aware and failed to address in any meaningful way. The court found that the defendant was in breach of its common law duty of care to her as an employee and under s. 8 of the Safety Health and Welfare at Work Act, 2005 and exposed the plaintiff to damage and injury to her health which she suffered as a result. There are a number of issues that arose during the course of the hearing including the extent of the personal injuries suffered by the plaintiff, whether they were caused by the defendant and whether the plaintiff took steps to mitigate her losses. The court heard evidence over a number of days in relation to the personal injuries and loss of earnings allegedly suffered by the plaintiff.

Medical History

3 The plaintiff gave evidence of her medical history and the adverse effects on her health of the bullying which she experienced in the course of her employment. Expert evidence was called on both sides. The doctors who treated her were called to give evidence. Evidence was also adduced from medical experts called by the defendant.

4 The plaintiff had an extensive employment history from a very young age. From October, 1984 until October, 1998 she was employed by Apple. She was then made redundant. Subsequently she obtained employment with Buy “N Sell as a telesales operator on a part time basis from 6th October, 1998 until 2nd May, 2000. She left after her second pregnancy.

5 She applied for a part time position with An Post in 2003 and following an interview was recommended for employment on the 10th June, 2003. She was granted a temporary employment contract from 25th August, 2003 for a minimum period of seven months for 21.25 hours per week. This contract was subsequently renewed on 25th August, 2005 and 25th February, 2006 when it was renewed for a period of six months. She was subsequently granted a further contract as auxiliary postal sorter on the 25th August, 2006 for a further period of six months.

6 In evidence Mrs. Hurley stated that following the incident with her co-worker on the 26th July, 2006 she was off work between 26th July and 15th August, 2006. She attended her general practitioner, Dr. Deirdre Burns, on 8th August, 2006 who certified her as unfit to work for that period. Dr. Burns noted that the plaintiff had anxieties about going back to work as there was a ‘mixed feeling at work about [the] entire incident’. She was advised to return to discuss the situation with her doctor if matters did not improve. She was also encouraged to discuss the situation with her work supervisor.

7 The initial incident between the plaintiff and her co-worker on 26th July 2006 caused her great upset and she was unable to return to work for a period of two weeks. The court has already ruled that the employer is not liable for any injury loss and damage sustained by her as a result of that incident. Therefore, the assessment of damages relates to any personal injuries loss and damage caused to the plaintiff following her return to work in August 2006 and arising from the bullying and harassment which she suffered thereafter. The plaintiff must establish that she suffered personal injuries or any other loss on the balance of probabilities. The aetiology of the symptoms from which she suffered after the incident is somewhat complex and disputed by the parties.

8 Following the incident on 26th July the plaintiff went with her two daughters then aged seven and nine years to live for three weeks with her parents because she feared that her fellow worker might seek her or her family out. She was extremely nervous and fearful of him. She described how she was traumatised by the incident and by feedback which she was receiving concerning how her fellow workers viewed the incident. Even at that early stage she considered that she was becoming a focus of attention and felt under pressure because of the negative view taken by her co-workers of her involvement in the incident. The incident led to her co-worker's suspension and he was dismissed in March 2007. Her husband also worked in the sorting office. She was worried for her safety because her co-worker shortly after the incident continued for a short period to attend at his work-place. He tried on one occasion to force his way in. He had to be prevented from entering the premises and escorted from it. However, she stated and I accept that she wished to return to work as normal as soon as possible.

9 Mrs. Hurley described the treatment to which she was subjected on her return to work which is set out in the earlier judgment of the court and which I fully accept. She felt ostracised and alone. She began to question herself and whether she had done something wrong. She was completely traumatised by her work situation within a short time of her return. There was very considerable workforce anger and agitation over her fellow worker's treatment by management. Her workplace became a very unhappy place for her and she dreaded going in though she still attended. This continued until Christmas 2006. After Christmas she did not return to work because of her deep anxiety and upset.

10 In the meantime, she had made a number of complaints to members of the management staff but felt she did not have any support from them. She felt she was taking the whole burden of the situation on her own shoulders. She spoke with the company nurse, Nurse Hodgins, in January 2007 and explained matters to her. Nurse Hodgins was sympathetic to her and told her not to give in and to return to work and see how things were. She complained to Mr. Ned Keane on the 16th August, 2006 and Mr. Keane and the operations manager Mr. Harrington in September 2006. She spoke to Mr. McCarthy, a supervisor on the floor. She spoke to Ms. Karen Hassett in September 2006 a processing area manager. She complained to Mr. Keane three times in October 2006 and once in November 2006. On 28th December, 2006 she was out sick and did not return until 5th January, 2007. She attended her general practitioner Dr. Fleming during that time.

11 Dr. Fleming describes in her report of 10th September, 2008 that Ms. Hurley attended on 5th January, 2007. She described at that time how following her return to work in August 2006 she had felt isolated and ostracised by others at work. She had taken the previous ten days off work as she was unable to cope with the stress in the work environment. Dr. Fleming gave her a medical certificate to cover that ten day period and advised her to return to discuss the situation if it did not improve and to discuss the matter with her work supervisors.

12 As described above Mrs. Hurley spoke to Nurse Hodgins at this time. Mrs. Hurley was referred to Nurse Hodgins because of the certificate granted by Dr. Fleming for work related stress. Nurse Hodgins noted that the plaintiff had been absent in July 2006 for two weeks. In December 2006 she stated that she felt blamed for her colleague's suspension and some of the staff were ignoring her. She had not been invited to some Christmas functions. She had returned to work and felt she was coping well. She appeared calm and relaxed. She was sleeping well but was ‘being harassed and bullied’ at work. She stated that friends and management were very supportive. Under the heading Plan it was stated:-

‘to contact welfare officer (contact details supplied) re her harassment and bullying allegation and discuss her options. She is fit for work at present.

M. Hodgins.

Management to follow normal procedure’

13 The plaintiff stated that between January and June 2007 she worked most days but took a number of days off. Her work attendance record indicates that she was absent for stress on the 5th and 10th July, 2007. However, I am satisfied that the severe pressure of the continuing bullying and harassment to which she was...