28 November 2011

Supreme Court ruling on the mental working environment

On 15 November 2011, the Supreme Court decided whether an employee was entitled to claim damages from her municipal employer after having developed a mental injury in connection with a very confronting staff weekend.In contrast to the High Court, the Supreme Court ordered the employer to pay damages (for pain and suffering).


The ruling is the first of its kind where an employee has been successful in claiming that a confronting course of events resulting in a mental injury is subject to liability and a legitimate claim for damages.

It may be expected that the otherwise cautious case law in relation to the acceptance of claims for damages against employers in connection with mental injuries in case of e.g. similar situations as the present, but also in case of long-term course of events of e.g. bullying / harassment will be tried in the future by injured employees and their unions.


The case concerned a kindergarten teacher employed in a kindergarten on specific terms due to a back injury. In connection with a staff weekend with the participation of an external supervisor, the collaborative environment at the kindergarten was discussed. In this connection, the employee's matters were discussed, and when these discussions escalated, the head and deputy head of the kindergarten and the external supervisor decided to discuss the situation alone. According to the employee, the head of the kindergarten subsequently informed her in front of everybody that the management had decided to terminate the employee. Afterwards, the employee reported sick due to mental problems. After a sick period, the parties entered into a severance agreement.

During the case, the employee claimed damages for pain and suffering due to irresponsible handling of the staff weekend resulting in a mental injury.

Within the (objective) system of industrial injury, the National Social Appeals Board recognised that the course of events had resulted in a personal injury. The grounds of the Board were, inter alia, as follows: "The Board has assessed that the course of events described by you has resulted in you being subject to harassment, which has been subjectively offensive and unacceptable. The Board finds that it has been proved on a sufficient balance of probability that the course of events on ... was mentally stressful to such an extraordinary extent that it was certain to end with a mental injury in the form of an immediate mental reaction - a crisis."

It was then for the High Court to decide whether a claim for damages not covered by the system of industrial injury could be raised against the employer.

High Court findings

The High Court found that the employer was liable for damages, but the Court found for the employer for the following reasons:

"The sick report and the mental consequences of the staff weekend are to be considered a personal injury covered by section 1 of the Liability in Damages Act. However, according to previous case law, damages for mental injury were only granted in cases where the person in question himself was subject to physical injury or had been at risk thereof, see the Supreme Court ruling of 23 March 2007 (UfR 2007.1562H). ... According to the Supreme Court, it must, however, be a condition that the person in question was subject to actual mental suffering beyond grief and need.

As regards [the employee's] mental condition after the staff weekend, it is stated in the statement .... that, during the first sessions, she showed clear symptoms of PTSD in the form of anxiety, increased alertness etc., that her condition developed in the nature of a depression after a few months, and that she developed a serious depression which is what often happens following traumatic experiences.

Taking this into consideration and the character of the irresponsible circumstances during the staff weekend, the High Court finds that the above conditions for considering [the employer] liable for damages for the injury have not been observed."

Supreme Court findings

The Supreme Court agreed with the High Court that the employer was liable for damages for what happened during the staff weekend. At the same time, the Supreme Court found - as a contrast to the High Court - that the mentally injured employee was entitled to damages (pain and suffering).

The Supreme Court stated:

"Under the general rules of Danish law, a personal injury includes both physical as well as mental after-effects. Chapter 1 of the Liability in Damages Act concerns damages and damages for personal injury and loss of breadwinner. Section 1 of the Act concerns "personal injury", and section 1 (1) prescribes that a person liable for damages for a "personal injury" must, inter alia, pay damages for pain and suffering. The concept "personal injury" of section 1 of the Act must be construed in accordance with the general rules of Danish law.

[The employee] reported sick after the staff weekend on 13 and 14 November 2004, and it is uncontested that she was subject to a mental injury due to the course of events of the staff weekend. ... The Supreme Court agrees that [the employee's] mental injury is covered by section 1 of the Liability in Damages Act.

... It is taken into account that the irresponsible handling of the staff weekend resulted in a significant increase of the risk of a mental injury of the present nature with an employee who was subject to a mentally tense situation, of which the management should have been aware. The Supreme Court therefore finds that [the employee's] mental injury is a foreseeable consequence of the irresponsible handling of the staff weekend.

[The employee] is the direct injured due to the manner giving rise to liability, and there are no grounds for considering the mental injury to fall outside the liability of the municipality."

For more information of the Supreme Court ruling:


The content of this Newsletter is not, and should not replace, legal advice.

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