Law, Labour and Mental Harm

Published date01 March 1996
AuthorRichard Mullender,Lesley Dolding
DOIhttp://doi.org/10.1111/j.1468-2230.1996.tb02081.x
Date01 March 1996
The
Modem
Law
Review
[Vol.
59
Pan
Atlantic,44
but it was firmly rejected by Lord Lloyd.45 The Court of Appeal in
St
Paul
decided, however, that there was such a presumption in favour of the
innocent party and, moreover, that it was enough for him to show that the
misrepresented fact had proved
an
inducement, but not necessarily
the
inducement.
One of
us
has already argued that if a presumption of inducement does exist, then
the misrepresented fact must
be
shown to
be
the
only inducement
because
anything
less only aids the insurer, already subject to a very lenient test on rnaterialit~~~;
however, such an argument has been firmly rejected, at least by this particular
Court of Appeal.
It therefore appears that the
law
after
Pan
Atlantic
is much the same
as
it was
after the much criticised
CTI
decision, although it
is
arguable that it is worse in that
it is no longer open to the insured to argue the ‘increased risk’ theory.47 The
introduction of an inducement requirement has served only to muddy the waters,
rather than clear them, which is what the House of Lords purportedly set out to do.
There must now be a very strong argument for referring this whole issue back to
the House for clarification and resolution.
Law,
Labour
and
Mental
Harm
Lesley Dolding” and Richard Mullender**
Introduction
Employers are under
a
duty (arising concurrently in tort and contract) to exercise
reasonable care
so
as to protect their workers from reasonably foreseeable work-
related mental harm. That the law comprehends this form
of
harm was established
by Colman
J
in the case of
Walker
v
Northumberland
County Council,’
in which
the plaintiff suffered a permanently disabling mental breakdown having been
unreasonably exposed to a ‘deluge of work.’* In reaching this decision, the judge
has
addressed an issue which has recently come under scrutiny by,
inter
alia,
the
Health and Safety Exec~tive,~ the Confederation of British Industry“ and the
national press.5 His decision is, moreover, noteworthy on account of the emphasis
it gives to the balancing of plaintiff- and defendant-related interests when
~~
44
Pan Arlantic,
p610, para
(9;
p617, para (d).
45
ibid
637, para (c).
46
See
Hird, ‘Rationality in the House of Lords?’
[
19951 JBL 194, 196. It was
also
stated here that an
inducement requirement, whether ‘an’
or
‘the’ inducement, could only aid the insured if the burden
of proof lies with the
insurer,
and that it will
so
lie is not at
all
clear from
Pan Arlantic.
For
a
fuller discussion of the
St
Paul
case, see Hird,
‘Pan Atlunric
-
yet more to disclose?’ [19951
JBL
608.
47
*Lecturer
in
Law, University of Exeter.
**Lecturer
in
Law, University of Newcastle-upon-Tyne.
1 [I9951
I
All
ER 737.
2
ibid
756G: see also p741B. where Colman J notes that ‘[The plaintiffs] confidence
in
himself was
permanently destroyed.’
3
See
Health and Safety Executive,
Stress
at
Work:
A
Guidefor Employers
(HSE Books, 1995) HS(G)
116.
See Health, Safety and Environment Bulletin, ‘Stress and Common Sense’ (July
1995)
p9.
See,
for
example, ‘Welcome Back Stakhanov’,
The
Independent
on
Sunday,
1
January 1995, p 14
(editorial comment).
4
5
296
0
The
Modern
Law Review Limited
1996

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